BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 139


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          Date of Hearing:  June 28, 2016


          Counsel:               David Billingsley








                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                       Reginald Byron Jones-Sawyer, Sr., Chair





          SB  
          139 (Galgiani) - As Amended June 15, 2016





          SUMMARY:  Raises penalties for possession of synthetic  
          cannabinoids and synthetic stimulants.  Expands list of  
          substances prohibited as synthetic cannabinoids.  Specifically,  
          this bill:  



          1)Expands the definition of a synthetic cannabinoid compound by  
            listing additional chemical categories as synthetic  
            cannabinoids.









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          2)Provides that a first offense of using or possessing a  
            synthetic stimulant compound or synthetic cannabinoid is  
            punishable as an infraction, a second offense is punishable as  
            an infraction or a misdemeanor, and a third or subsequent  
            offense is punishable as a misdemeanor. 

          3)Authorizes a person charged with certain crimes relating to  
            synthetic stimulant compounds or synthetic cannabinoid  
            compounds to be eligible to participate in a preguilty plea  
            drug court program. 

          4)Makes technical changes to the definition of synthetic  
            stimulant compound.

          EXISTING LAW:  



          1)Specifies that every person who sells, dispenses, distributes,  
            furnishes, administers, or gives, or offers to sell, dispense,  
            distribute, furnish, administer, or give, or possesses for  
            sale any synthetic cannabinoid compound, or any synthetic  
            cannabinoid derivative, to any person, is guilty of a  
            misdemeanor, punishable by imprisonment in a county jail not  
            exceeding six months, or by a fine not exceeding one thousand  
            dollars ($1,000), or by both that fine and imprisonment.  
            (Health & Saf. Code, § 11357.5, subd. (a).)



          2)States that every person who uses or possesses any synthetic  
            cannabinoid compound, or any synthetic cannabinoid derivative,  
            is guilty of an infraction, punishable by a fine not to exceed  
            two hundred fifty dollars ($250). (Health & Saf. Code, §  
            11357.5, subd. (b).)



          3)Defines "synthetic cannabinoid compound" as any of the  








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            following substances (Health & Saf. Code, § 11357.5, subd.  
            (c).):



             a)    1-pentyl-3-(1-naphthoyl)indole (JWH-018);

             b)    1-butyl-3-(1-naphthoyl)indole (JWH-073);



             c)   1-[2-(4-morpholinyl)ethyl]-3-(1-naphthoyl)indole  
               (JWH-200);



             d)    
               5-(1,1-dimethylheptyl)-2-[(1R,3S)-3-hydroxycyclohexyl]-phenol (CP-47,497); and



             e)    
               5-(1,1-dimethyloctyl)-2-[(1R,3S)-3-hydroxycyclohexyl]-phenol (cannabicyclohexanol; CP-47,497 C8 homologue).



          4)Provides that every person who sells or distributes, or offers  
            to sell or distribute, any synthetic stimulant compound, as  
            specified, to any person, or who possesses that compound for  
            sale, is guilty of a misdemeanor, punishable by imprisonment  
            in a county jail not to exceed six months, or by a fine not to  
            exceed one thousand dollars ($1,000), or by both that fine and  
            imprisonment. (Health & Saf. Code, § 11375.5, subd. (a).)

          5)Specifies that every person who uses or possesses any  
            synthetic stimulant compound specified in subdivision (c), or  
            any synthetic stimulant derivative, is guilty of an  
            infraction, punishable by a fine not to exceed two hundred  
            fifty dollars ($250). (Health & Saf. Code, § 11375.5, subd.  








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            (b).)



          6)Provides that the list of prohibited synthetic stimulants  
            include any quantity of the following substances, as  
            specified, within any of the following specific chemical  
            designations (Health & Saf. Code, § 11375.5, subd. (c).):



             a)   Naphthylpyrovalerone whether or not further substituted  
               in the naphthyl ring to any extent with alkyl, alkoxy,  
               alkylenedioxy, haloalkyl, or halide substituents, whether  
               or not further substituted in the naphthyl ring by one or  
               more other univalent substituents, or whether or not  
               further substituted in the carbon chain at the 3-, 4-, or  
               5-position with an alkyl substituent; and

             b)   2-amino-1-phenyl-1-propanone (cathinone) or variation in  
               any of the following ways:



               i)     By substitution in the phenyl ring to any extent  
                 with alkyl, alkoxy, alkylenedioxy, haloalkyl, or halide  
                 substituents, whether or not further substituted in the  
                 phenyl ring by one or more other univalent substituents.

               ii)    By substitution at the 3-position with an alkyl  
                 substituent;



               iii)   By substitution at the nitrogen atom with alkyl,  
                 dialkyl, or benzyl groups, or by inclusion of the  
                 nitrogen atom in a cyclic structure; and










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          7)Specifies that a controlled substance analog shall be treated  
            the same as specified controlled substances of which it is an  
            analog. (Health & Saf. Code, § 11401, subd. (a).)

          8)Provides that, except as specified, the term "controlled  
            substance analog" means either of the following:



             a)   A substance the chemical structure of which is  
               substantially similar to the chemical structure of  
               specified controlled substances; or (Health & Saf.Code, §  
               11401, subd. (b)(1).)

             b)   A substance which has, is represented as having, or is  
               intended to have a stimulant, depressant, or hallucinogenic  
               effect on the central nervous system that is substantially  
               similar to, or greater than, the stimulant, depressant, or  
               hallucinogenic effect on the central nervous system of  
               specified controlled substances. (Health & Saf. Code, §  
               11401, subd. (b)(2).)



          9)Specifies that the term "controlled substance analog" does not  
            mean "any substance for which there is an approved new drug  
            application as specified under the federal Food, Drug, and  
            Cosmetic Act or which is generally recognized as safe and  
            effective as specified by the federal Food, Drug, and Cosmetic  
            Act." (Health & Saf. Code, § 11401, subd. (c)(1).)

          10)Lists controlled substances in five "schedules" - intended to  
            list drugs in decreasing order of harm and increasing medical  
            utility or safety - and provides penalties for possession of  
            and commerce in controlled substances.  (Health & Saf. Code §§  
            11350-11401.)










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          11)Requires non-violent drug possession offenders to be offered  
            drug treatment on probation, which shall not include  
            incarceration as a condition of probation, in the form of,  
            Proposition 36 (Nov. 2000 election), the Substance Abuse and  
            Crime Prevention Act of 2000 (SACPA). (Pen. Code, § 1210.1.)  

           12)Provides that non-violent drug possession offenses include:   

              a)   Unlawful use, possession for personal use, or  
               transportation for personal use of a controlled substance;  
               and,(Pen. Code, § 1210, subd. (a).)  

              b)   Being under the influence of a controlled substance.  
               (Pen. Code, § 1210, subd. (a).)  
           


          FISCAL EFFECT:  Unknown.





          COMMENTS:  



          1)Author's Statement:  According to the author, "Synthetic  
            cannabinoid compounds have become a growing problem in our  
            community. Part of the reason that drugs dealers are having so  
            much success marketing the drug to teenagers and young adults  
            is that they are able to market them as being legal.  Up until  
            my bill last year, simple possession of these drugs was  
            actually perfectly legal under state law.  This is despite  
            their well-documented danger.  Now it has come to my attention  
            that underground chemists skirt the law by slightly altering  
            the chemical compounds of these drugs, to come up with new  
            versions, which technically, are NOT illegal yet.  Senate Bill  








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            139 will close these loopholes in state law and allow law  
            enforcement to be better equipped in getting these drugs away  
            from our communities."

          2)Synthetic Cannabinoids:  Synthetic cannabinoids come in two  
            basic forms.  CB1 cannabinoids bind to CB1 cannabinoid  
            receptors in the brain.  CB2 cannabinoid receptors bind to  
            cells throughout the body that are largely involved in  
            regulating the immune system, although their full properties  
            of CB2 are not known.  It appears that CB2 cannabinoids could  
            be used to treat inflammation.  (THC binds to CB1 and CB2  
            receptors.)  CB1 cannabinoids have psychoactive properties.   
            Typically statutes, news reports and academic works concern  
            CB1 synthetic cannabinoids. 

          The European Monitoring Centre for Drugs and Drug Addiction  
            (EMCDDA) is a European Union agency that "exists to provide  
            the EU ? with a factual overview of European drug problems and  
            a solid evidence base to support the drugs debate." 

          The EMCDDA Website includes the Following Information about  
            Synthetic Cannabinoids:



               Synthetic cannabinoids ?. bind to the same cannabinoid  
               receptors in the brain [as THC]   ?  More correctly  
               designated as cannabinoid receptor agonists, they were  
               developed over the past 40 years as therapeutic  
               agents.  ?However, it proved difficult to separate the  
               desired properties from unwanted psychoactive effects.  
                Although often referred to simply as synthetic  
               cannabinoids [or synthetic marijuana], many of the  
               substances are not structurally related to the  
               so-called "classical" cannabinoids like THC?












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               ?[L]ittle is known about the detailed pharmacology and  
               toxicology of the synthetic cannabinoids and few  
               formal human studies have been published.  It is  
               possible that, apart from high potency, some  
               cannabinoids could have? long half-lives?leading to a  
               prolonged psychoactive effect.  ? [T]here could [also]  
               be considerable ? batch variability? in terms of  
               substances present and ?quantity.   
                http://www.emcdda.europa.eu/topics/pods/synthetic-canna 
               binoids  



            Recent EMCDD Data on Synthetic Cannabinoids Include:



            A synthetic cannabinoid, JWH-018, was first detected in  
            "Spice" products in 2008.


            81 new psychoactive substances were reported to EMCDDA in  
            2013, 29 were synthetic cannabinoids.
            105 synthetic cannabinoids in total [were] monitored by EU  
            Early Warning System [in January of 2014].
            14 recognizable chemical families of synthetic cannabinoids  
            are known.

            The EMCDD reports that most synthetic cannabinoids are  
            manufactured in China and shipped though legitimate  
            distribution networks.  The White House Office of National  
            Drug Control Policy states that most synthetic cannabinoids  
            originate overseas, but that they are also being made on a  
            small scale in the United States.  
             https://www.whitehouse.gov/ondcp/ondcp-fact-sheets/synthetic-dr 
            ugs-k2-spice-bath-salts
             
            The EMCDD reported on adverse consequences of synthetic  








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            cannabinoid use:

               The adverse health effects associated with synthetic  
               cannabinoids are linked to both the intrinsic nature  
               of the substances and to the way the products are  
               produced.  There have been numerous reports of  
               non-fatal intoxications and a small number of deaths  
               associated with their use.  As noted above, some of  
               these compounds are very potent; therefore the  
               potential for toxic effects is high.  Harm may result  
               from uneven distribution of the substances within the  
               herbal material, result[ing] in products containing  
               doses that are higher than intended.



               The reported adverse effects of synthetic cannabinoid  
               products include agitation, seizures, hypertension,  
               emesis (vomiting) and hypokalemia (low potassium  
               levels).  ?There is some evidence?that synthetic  
               cannabinoids can be associated with psychiatric  
               symptoms, including psychosis.  There are also  
               investigations underway in the US regarding links  
               between the use of synthetic cannabinoids? and acute  
               kidney injury and recently, a case report associated  
               the use of the cannabinoid JWH-018 with?strokes in two  
               otherwise healthy males.  
                http://www.emcdda.europa.eu/topics/pods/synthetic-canna 
               binoids
           3)Synthetic Stimulant Chemicals:  It appears that the synthetic  
            stimulant chemicals included in this bill are closely related  
            to cathinone, the psychoactive chemical in the khat plant,  
            which is commonly used in the Middle East.  Khat and Cathinone  
            are included in Schedule II stimulants.  (Health and Saf. Code  
            § 11055, subd. (d)(7)-(8).)  Without this bill, it appears  
            that possession of one of the specified synthetic chemicals  
            would be a crime through the analog statute.  The analog  
            statute provides that any drug that has a chemical structure  
            or properties that are similar to a scheduled drug can be the  








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            subject of prosecution as though the drug were included in the  
            schedules.  

          The United Kingdom Advisory Council on the Misuse of Drugs  
            (ACMD) is an agency of the UK Home Office that advises policy  
            makers on drug issues.  In the past few years, the ACMD has  
            reported on the synthetic stimulants covered by this bill. 

          Synthetic cathinones are related to the parent compound  
            cathinone, one of the psychoactive principals in khat?   
            Cathinone derivatives are ?. analogues of a corresponding  
            phenethylamine.  The group includes several substances that  
            have been used as active pharmaceutical ingredients ? Since  
            the mid-2000s, unregulated ring-substituted cathinone  
            derivatives have appeared in the European recreational drugs  
            market.  The most commonly available cathinones sold on the  
            recreational market in the period up to 2010 appear to be  
            mephedrone (Figure 3) and methylone.  [The drugs]? are claimed  
            to have effects similar to those of cocaine, amphetamine or  
            MDMA, but little is known of their detailed pharmacology.   
            Apart from cathinone [and other specified chemicals].  
            cathinone derivatives are not under international control.

          ?Like cocaine, the resulting 'high' of mephedrone is  
            short-lived.  Consequently, users may consume several doses in  
            succession.  ?[Specified chemical alterations] could [create]  
            more potent [drugs].  It should be noted that?PMA and PMMA are  
            known to have a particularly high toxicity, and this property  
            might translate to their analogues. 

          As noted above, cathinone is the main psychoactive chemical in  
            the khat plan.  Use of khat in the United States has grown in  
            recent decades.  The New York State Office of Alcohol and  
            Substance Abuse Services produces research and educational  
            material about drugs.  The office has published the following  
            discussion of khat: 

          Khat has been grown for use as a stimulant for centuries in the  
            Horn of Africa and the Arabian Peninsula.  There, chewing khat  








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            predates the use of coffee and is used in a similar social  
            context.  Its fresh leaves and tops are chewed or?consumed as  
            tea, [producing] euphoria and stimulation.  The stimulant  
            effect is most effective when the leaves are still fresh.

          Khat use has traditionally been confined to the regions where  
            khat is grown, because only the fresh leaves have the desired?  
            effects.  In recent years improved [transportation] has  
            increased the global distribution.  

          ?In 1975, the [chemical] cathinone was isolated [from khat].   
            Cathinone is not very stable and breaks down to produce  
            cathine and norephedrine.  These chemicals belong to the PPA  
            (phenylpropanolamine) family, a subset of the phenethylamines  
            related to amphetamines and the catecholamines, epinephrine  
            and norepinephrine.   

          4)Drug Analog Law in California:   California law treats a  
            substance that is the chemical or functional equivalent of a  
            drug listed in Schedule I or II of the controlled substance  
            schedules the same as the scheduled drug.  Such a substance is  
            defined as a controlled substance analog.  California law  
            allows prosecution of a person for possession of, or commerce  
            in, of a substance that is an analog of a Schedule I or II  
            drug.  (Health & Saf. Code, §§ 11400-11401.)  The purpose of  
            the analog law is to prevent street chemists from  
            circumventing drug laws by synthesizing drugs which have  
            slight chemical or functional differences from the prohibited  
            drug.

          Newly developed synthetic cannabinoids are not covered by the  
            California analog statute synthetic cannabinoids are not  
            included in Schedule I or II of the controlled substances  
            schedules. Illegal synthetic cannabinoids are separately  
            defined and prohibited.  

          California's drug analog law provides two ways to establish that  
            a substance is an analog of a drug.  The first method relies  
            on demonstrating that the substance has a chemical structure  








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            which is "substantially similar" to the chemical structure of  
            the drug.  (Health & Saf.Code, § 11401, subd. (b)(1).) The  
            second method requires a showing that the substance has, is  
            represented as having, or is intended to have a stimulant,  
            depressant, or hallucinogenic effect on the central nervous  
            system that is "substantially similar" to the effect of the  
            drug. (Health & Saf. Code, § 11401, subd. (b)(2).)

          5)Alterations of Chemical Compounds in the Future:  The author  
            has expressed concern that individuals manufacturing synthetic  
            cannabanoids can avoid criminal repercussions by slightly  
            changing the chemical compound of substance that is currently  
            on the list of substances prohibited on the list of synthetic  
            cannabinoids.  

          The Author states ". . .  it has come to my attention that  
            underground chemists skirt the law by slightly altering the  
            chemical compounds of these drugs, to come up with new  
            versions, which technically, are NOT illegal yet." (Author's  
            Statement, supra.) 

          Existing law currently prohibits synthetic cannabinoids and  
            synthetic cannabinoid derivatives.  (Health & Saf. Code, §  
            11357.5, subd. (c).)  Existing law lists five chemical  
            compounds as synthetic cannabinoids.  Each chemical compound  
            is described by its chemical structure.  The author has chosen  
            to add a number of categories and substances (described by  
            their chemical structure) to the existing list of prohibited  
            synthetic cannabinoids.  It is not clear that expanding the  
            list will prevent street chemists from continuing to tweak the  
            chemical structure of substances in the future in an attempt  
            to create a substance which is not included in the list.  

          SB 1036 (Hernandez) takes a different approach to prohibiting  
            synthetic cannabinoids which are not specifically listed under  
            the current statute.  SB 1036 includes synthetic cannabinoids  
            within the existing analog statute.  If synthetic cannabinoids  
            are included in the analog statute, the status of any  
            substances with new chemical compositions can be established  








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            through expert opinion as an analog of the synthetic  
            cannabinoids which are currently prohibited.  SB 1036  
            (Hernández) is currently awaiting hearing in the Assembly  
            Appropriations Committee.  

          6)Argument in Support:  According to The California Police  
            Chiefs Association, "SB 139 is aimed at prohibiting possession  
            of 'bath salts' and 'spice' and encouraging entry into  
            treatment programs.  In addition, SB 139 is drafted so as to  
            be chemically current, thereby preventing bath salts and spice  
            manufacturers from chemically evading the law by making  
            molecular adjustments to their manufacturing process.  Senate  
            Bill 139 will assure that Bath Salts cannot continue to cause  
            harm.

          "Getting people into treatment is literally lifesaving.  The  
            effects of these drugs include agitation, paranoia,  
            hallucinations, severe chest pains, increased pulse, high  
            blood pressure, hyper-aggressive behavior and suicidal  
            thinking/behavior/ Most disturbing, suicidal thinking/behavior  
            may last even after the stimulatory effects of the drugs have  
            worn off.  Equally disturbing, the addictive nature of these  
            drugs is so powerful that - even with these symptoms - users  
            report an eagerness to go back and use again.  Without  
            treatment intervention, persons using these drugs face a  
            continued downward cycle."

          7)Argument in Opposition:  According to The American Civil  
            Liberties Union of California, "Using the criminal justice  
            system to address substance abuse has led to a broken criminal  
            justice system and billions of wasted taxpayer dollars.  The  
            state's current reliance on criminalization of drug abuse does  
            not work, and increasing penalties for simple possession of  
            the drugs targeted by SB 139 will do nothing to resolve  
            existing problems.  

          "Furthermore, the creation of new misdemeanors may further  
            exacerbate California's jail overcrowding problem.  According  
            to Public Policy Institute of California, "[a]s of September  
                                 







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            2012, the average daily jail population was about 3,954  
            inmates over the statewide rated jail capacity of 76,910  
            inmates, set by the California Board of State and Community  
            Corrections.  Twenty-one counties had an average daily  
            population greater than their rated capacity.  Additionally,  
            18 counties were operating under court-ordered population caps  
            for at least one jail in their county..."  Given that the  
            policy of incarceration for possession has been a dismal  
            failure in California and the nation, we should not undertake  
            to pass new penalties that will further strain the capacity of  
            California's county jails." 

          8)Related Legislation: SB 1036 (Hernández), would expand the  
            definition of controlled substance analog to include a  
            substance the chemical structure of which is substantially  
            similar to the chemical structure of a synthetic cannabinoid  
            compound. SB 1036 is awaiting hearing in the Assembly  
            Appropriation Committee.

          9)Prior Legislation:  

             a)   SB 1283 (Galgiani), Chapter 372, Statutes of 2013, makes  
               the use or possession of specified synthetic stimulant  
               compounds or synthetic stimulant derivatives, punishable by  
               a fine not exceeding $250.

             b)   AB 2420 (Hueso,) 2011-2012 Legislative Session, would  
               have created infraction and misdemeanor penalties for  
               possession or use of specified synthetic stimulants and  
               synthetic cannabinoids.  AB 2420 failed passage in the  
               Assembly Public Safety Committee.  

             c)   AB 486 (Hueso), Chapter 656, Statutes of 2011,  
               prohibited the sale, dispensing, distribution, furnishment,  
               administration or giving, or attempt to do so, of any  
               synthetic stimulant compound of any specified synthetic  
               stimulant derivative.  Violation of this section is  
               punishable by imprisonment in a county jail not exceeding 6  
               months, or by a fine not exceeding $1,000, or by both that  








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               fine and imprisonment.  

             d)   SB 420 (Hernandez), Chapter 420, Statutes of 2011,  
               prohibited the sale, dispensing, distribution,  
               administration or giving, or attempt to do so, of any  
               synthetic cannabinoid compound or any synthetic cannabinoid  
               derivative.  Violation of this section is punishable by  
               imprisonment in a county jail not exceeding 6 months, or by  
               a fine not exceeding $1,000, or by both that fine and  
               imprisonment.  



          REGISTERED SUPPORT / OPPOSITION:





          Support


          


          California Narcotics Officers' Association (Sponsor)
          Association of Orange County Deputy Sheriffs
          California District Attorneys Association
          California Police Chiefs Association
          California Statewide Law Enforcement Association
          City of San Marcos
          Fraternal Order of Police, California State Lodge


          Long Beach Police Officers Association
          Sacramento County Deputy Sheriffs' Association
          San Diego County District Attorney










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          Opposition


          


          American Civil Liberties Union of California


          Drug Policy Alliance
          Legal Services for Prisoners with Children



          Analysis Prepared by:David Billingsley / PUB. S. / (916)  
          319-3744