BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 947 (Chávez) - Controlled substances: firearms
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|Version: February 26, 2015 |Policy Vote: PUB. S. 7 - 0 |
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|Urgency: No |Mandate: Yes |
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|Hearing Date: August 17, 2015 |Consultant: Jolie Onodera |
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This bill meets the criteria for referral to the Suspense File.
Bill
Summary: AB 947 would revise sentencing provisions for the
possession of specified controlled substances while armed with a
loaded firearm to be punishable pursuant to a jail felony
(instead of state prison) unless otherwise disqualified from a
jail term. This bill would also provide that a person subject to
a sentence enhancement for being personally armed with a firearm
in the commission of, or attempted violation of, specified drug
commerce offenses to serve the entire sentence in state prison.
Fiscal
Impact:
State prison : (1) Potentially major future increase in state
prison costs in the millions to tens of millions of dollars
(General Fund) annually to the extent additional commitments
to state prison for drug commerce offenses with lengthier
terms result, as the base sentence that otherwise would have
AB 947 (Chávez) Page 1 of
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been served in county jail, plus the enhancement term, would
be served in state prison. While the number of cases
potentially subject to the sentence enhancement is unknown,
annual convictions for the specified drug commerce offenses
are in excess of 12,000 annually, and the differential between
prison commitments pre- and post-Realignment are in the
thousands; (2) Significant decrease in state prison costs,
potentially in the low millions of dollars (General Fund)
annually to the extent some portion of the more than 300
annual commitments to state prison for drug possession while
armed are instead sentenced to a jail term (for persons
without a disqualifying current or prior conviction).
County jails : (1) Potentially major future decreases in local
jail costs to the extent fewer persons are sentenced to county
jail for drug commerce offenses with an enhancement, and
instead serve their sentences in state prison, as the base
sentence that otherwise would have been served in county jail,
plus the enhancement term, would be served in state prison;
(2) Potentially significant increase in local jail costs to
the extent the potential charge for a prison enhancement
results in plea bargaining down for extended jail sentences;
(3) Potentially significant increase in local costs (Local
Funds) to the extent some portion of the more than 300 annual
commitments to state prison for drug possession while armed
are instead sentenced to a jail term.
Background: Existing law makes it a felony punishable by imprisonment in
state prison for two, three or four years to unlawfully possess
any amount of a substance containing cocaine, cocaine base,
heroin, methamphetamine, or phencyclidine while armed with a
loaded, operable firearm. (Health and Safety Code § 11370.1(a).)
Under existing law, a person who is personally armed with a
firearm in the commission of a violation or attempted violation
of specified controlled substance commerce or manufacturing
offenses, is subject to an additional and consecutive term of
imprisonment in county jail (unless a current or prior serious
or violent felony conviction or conviction requiring
registration as a sex offender occurred) for three, four or five
years. However, prior to the enactment of 2011 Public Safety
Realignment pursuant to AB 109 and AB 117, a person who was
personally armed with a firearm in the commission of specified
drug trafficking offenses was required to serve the enhancement
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in state prison. (Penal Code § 12022(c).)
As noted above, current law provides that the sentence for the
more serious offense of drug commerce while armed is to be
served in county jail, while the sentence for the less serious
offense of drug possession while armed is to be served in state
prison. This bill seeks to reverse the location in which the
sentence is to be served for these offenses, thereby providing
that the sentence for the offense of drug possession while armed
is to be served in county jail, and the sentence for drug
commerce while armed is to be served in state prison.
Proposed Law:
This bill would revise the sentencing provisions for specified
drug felonies, as follows:
Specifies that any person who commits a felony offense
of unlawfully possessing any amount of a substance
containing cocaine or another specified drug, a crystalline
or liquid substance containing PCP, plant material
containing PCP, or a hand-rolled cigarette treated with
PCP, while armed with a loaded, operable firearm, is
subject to imprisonment in county jail (or state prison if
ineligible for a jail term due to a current or prior
serious, violent, or sex registerable felony conviction)
for two, three, or four years.
Specifies that any person who is personally armed with a
firearm in the commission of, or attempted violation of,
numerous specified controlled substance commerce or
manufacturing offenses, pursuant to HSC §§ 11351, 11351.5,
11352, 11366.5, 11366.6, 11378, 11378.5, 11379, 11379.5, or
11379.6 is subject to an additional and consecutive term of
imprisonment in the state prison for three, four, or five
years.
Related
Legislation: AB 109 (Committee on Budget) Chapter 15/2011
enacted Public Safety Realignment of 2011, which, among its
numerous provisions, requires newly-convicted low-level
offenders without current or prior serious or violent offenses
AB 947 (Chávez) Page 3 of
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to serve their sentences in county jail instead of state prison.
Staff
Comments: The provisions of this bill could result in both
potentially significant increases and decreases to state prison
and county jail costs under the two separate provisions of the
bill as described below:
Drug possession while armed with a loaded firearm - HSC §
11370.1(a)
This bill provides that a conviction for specified drug
possession while armed with a loaded firearm is punishable by a
term of two, three, or four years in county jail instead of
state prison, unless a person has a current or prior
disqualifying conviction (serious or violent felony or
conviction for an offense requiring sex offender registration),
in which case, the term would continue to be served in state
prison.
According to data from the CDCR, annual commitments to state
prison under HSC § 11370.1(a) since 2012 (post-Realignment) have
averaged slightly over 300 per year. It is unknown how many
persons would continue to serve their sentences in state prison
due to a conviction for an offense disqualifying them from a
jail term, but for every 50 to 100 inmates that would
potentially serve their sentences in jail instead of state
prison, annual cost savings of $1.3 million to $2.7 million
could result, based on a contract bed cost of $27,000 per year.
Drug commerce while armed with a firearm - PC § 12022(c)
This bill does not change where the sentence for a drug commerce
offense would be served unless a firearm enhancement is
established. Drug commerce crimes are generally subject to
felony jail terms, unless the person has a disqualifying
conviction as described above. The defendant would thus be
convicted of a jail felony offense for which the enhancement is
to be served in prison. In such cases, the enhancement provision
requiring a prison term controls and the defendant would serve
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the entire sentence in prison, regardless of whether the
underlying offense would otherwise be punishable by a felony
jail sentence. (People v. Vega (2014) 222 Cal. App. 4th 1374,
1387.)
According to CDCR data, approximately 1,700 persons are
currently serving a prison sentence for the specified drug
commerce offenses (potentially due to a current or prior serious
or violent felony conviction or a conviction for an offense
requiring sex offender registration), and the provisions of this
measure would not impact this population. Staff notes that the
number of commitments to state prison prior to the enactment of
2011 Realignment for the specified drug commerce offenses was
nearly 8,000 persons in 2010, however, it is unknown how many of
these commitments included a firearm enhancement that could
potentially inform the potential fiscal impact of this bill.
Data from the DOJ indicates over 12,000 convictions in 2014 for
the specified drug commerce offenses in this measure. While it
is unknown what percentage of these cases would be subject to
the firearm enhancement, for every one percent or 120 persons
per year who would have otherwise been subject to a felony jail
term and the firearm enhancement, without a disqualifying
conviction barring a jail term, the potential increase to state
prison costs assuming a middle base term of three years plus the
middle term of four years for the enhancement, would result in
first-year costs of $3.2 million, increasing cumulatively to
over $16 million annually after five years. To the extent the
number of individuals convicted of the specified offenses with
the firearm enhancement is greater or less, would impact costs
accordingly.
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