BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 212 Hearing Date: March 24, 2015
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|Author: |Mendoza |
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|Version: |February 11, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JM |
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Subject: Controlled Substances: Enhanced Penalties
HISTORY
Source: California District Attorneys Association
Prior Legislation:AB 3451 (O'Connell) - Ch.1248, Stats. 1988
AB 2124 (Umberg) - Ch. 989, Stats. 1992
AB 104 (Quackenbush) - Ch. 551, Stats. 1993
Support: Association for Los Angeles Deputy Sheriffs;
California Association of Code Enforcement Officers;
California College and University Police Chiefs
Association; California Contract Cities Association;
California Narcotic Officers Association; California
State Sheriffs' Association; Chief Probation Officers
of California; Los Angeles Police Protective League;
Riverside Sheriffs' Association
Opposition:California Attorneys for Criminal Justice; California
Public Defenders Association; Drug Policy Alliance
PURPOSE
The purpose of this bill is to extend the enhancement for a drug
commerce crime committed on property that is accessible to the
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public within 1,000 feet of a school to such crimes committed on
private property not accessible to the public, and to
"preschools," as defined.
Existing law classifies controlled substances in five schedules
according to their medical utility and potential for abuse.
Schedule I controlled substances are deemed to have no accepted
medical uses and cannot be prescribed. Examples of drugs in the
California Schedule include the following:
Cocaine, heroin and marijuana are Schedule I drugs.
Methamphetamine, oxycodone and codeine are Schedule II
drugs.
Barbiturates (tranquilizers, anabolic steroids and
specified narcotic, pain medications are Schedule III
drugs.
Benzodiazepines (Valium) and phentermine (diet drug) are
Schedule IV drugs.
Specified narcotic pain medications with active
non-narcotic active ingredients are Schedule V drugs.
(Health & Saf. Code §§ 11054-11058.)
Existing law provides penalties for possession, possession for
purposes of sale, and manufacturing of controlled substances.
(Health & Saf. Code §§ 11350-11401.)
Existing law provides that any person convicted of unlawfully
manufacturing, or possessing specified precursors with the
intent to manufacture, methamphetamine or phencyclidine, when
the commission or attempted commission of the crime occurs in a
structure where any child under 16 years of age is present,
shall be punished by an additional 2 years, pursuant to Penal
Code Section 1179, subdivision (h). (Health and Saf. Code §
11379.7, subd. (A).)
Existing law includes enhancements for controlled substance
crimes that directly involve or affect minors. These include:
Involving minor in controlled substance crimes
concerning a very wide range of drugs, such as opiates,
opiate derivatives, specified hallucinogens and
depressants, methamphetamine and others - 3, 6 or 9 year
enhancement. (Health & Saf. Code § 11353.)
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Involving minor in specified heroin and cocaine crimes
on the grounds of a church, synagogue, playground, youth
center, child care facility when open for business or when
children are using the facility - 1 year enhancement in
addition to the 3, 6, 9 year enhancement for using the
minor in the commission of the underlying crime. (Health &
Saf. Code §§ 11353 and 11353.1.)
Involving minor in specified heroin and cocaine crimes
on the grounds of a school, or within 1000 feet thereof,
when open for classes, or when children are using the
facility: 2 enhancement in addition to the 3, 6, 9 year
term for using the minor in the commission of the crime.
An additional enhancement of 1, 2 or 3 years where the
defendant is at least four years older than the minor.
(Health & Saf. Code §§ 11353 and 11353.1.)
Involving minor in cocaine base crimes on the grounds of
a school, or within 1000 feet thereof, when open for
classes, or when children are using the facility, with a
prior conviction of that crime - Enhancement of 1, 2 or 3
years. (There are two forms of the enhancement: 1) where
the defendant was imprisoned in the prior crime, and 2)
where the current crime involved a minor under the age of
14.) (Health & Saf. Code § 11353.4.)
Selling or providing specified drugs (other than
included in other enhancements) to a minor on school
ground: Enhancement of 5, 7, or 9 years. (Health & Saf.
Code § 11353.5.)
Manufacturing methamphetamine or PCP in a place where a
16-year-old person resides - Enhancement of 2 years and 5
years where great bodily injury occurs. (Health & Saf.
Code § 11379.7.)
Using minor for drug transactions involving
methamphetamine, PCP, LSD on grounds of a church, school,
playground et cetera (Health & Saf. Code § 11380.1.) -
Enhancement of 1 year (church, playground, et cetera), 2
years (school), 1, 2 or 3 years (minor used was four years
younger than the perpetrator).
Existing law provides that where an adult defendant possesses
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for sale, sells, transports or manufactures cocaine, heroin or
methamphetamine within 1,000 feet of a school, he or she shall
be punished by an enhancement of 3, 4 or 5 years. (Health &
Saf. Code § 11353.6, subd. (b).)
Where the crime "involves a minor who is at least four
years younger" than the adult defendant, the defendant
shall be punished by an enhancement of 3, 4 or 5 years, in
addition to the enhancement - defined in subdivision (b) of
Section 11353.6 - based solely on the proximity to the
school. (Health & Saf. Code § 11353.6, subd. (c).)
Within 1,000 feet of a ?.. "school" ?means any public
area or business establishment where minors are legally
permitted to conduct business? within 1,000 feet of any
public or private elementary, vocational, junior high or
high school.
Decisional law holds that a public area includes private
property that is accessible to the public. (People v.
Jimenez (1995) 33 Cal.App.4th 54, 58.)
Decisional law holds that if the charged crime involves
a charged or uncharged conspiracy - an agreement to commit
a crime and an overt act in furtherance of the conspiracy -
and any overt act that is done on property accessible to
the public, the enhancement applies. (People v. Marzet
(1997) 57 Cal.App.4th 329, 332.)
This bill provides that the crimes of possession for sale,
transportation and manufacturing of cocaine, heroin or
methamphetamine are subject to a sentence enhancement of 3, 4 or
5 years, with an additional 3, 4 or 5 years if the crime
involves a minor who is at least four years younger than the
defendant, if the crime occurs on private property inaccessible
to the public that is within 1,000 feet of a school.
This bill extends the enhancement for committing a drug commerce
crime involving cocaine, heroin or methamphetamine within 1,000
feet of a school to such crimes committed near a preschool.
This bill defines a preschool as "a school for children under
six years of age."
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In its most recent status report to the court (February 2015),
the administration reported that as "of February 11, 2015,
112,993 inmates were housed in the State's 34 adult
institutions, which
amounts to 136.6% of design bed capacity, and 8,828 inmates were
housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design
bed capacity."( Defendants' February 2015 Status Report In
Response To February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC,
3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
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Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy
COMMENTS
1.Need for This Bill
According to the author:
The manufacturing and sale of illicit drugs poses a serious
risk to those in areas where these crimes occur, especially
children. A child walking home from school can easily come
in contact with a drug deal turned violent or a drug dealer
selling to children. Additionally, clandestine labs pose a
substantial risk of harm to children.
A loophole in the existing law has been exposed by defense
attorneys in recent court rulings. Current law adds a
sentencing enhancement for drug sale or manufacture within
1,000 feet of school. However, the enhancement cannot be
applied if the sale or manufacture occurs on private
property, and current law does not clearly protect
preschools. SB 212 protects our children by strengthening
current law to include illicit drug trafficking of
manufacturing on private property and by adding preschools
to the definition of schools.
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2. History of the "Juvenile Drug Trafficking and Schoolyard Act
of 1988"
The Health and Safety Code contains a bewildering array of
controlled substance enhancements. A different punishment, or
multiple punishments, can be imposed based on relatively small
differences between the particular circumstances of many drug
crimes.
This bill amends "The Juvenile Drug Trafficking and Schoolyard
Act of 1988" - AB 3451 (O'Connell) Ch.1248, Stats. 1988. That
legislation defined an enhancement for cocaine commerce crimes
committed near schools. The legislation appears to have been
part of a series of new laws intended to address concerns about
the use of, and commerce in, cocaine, especially crack cocaine.
The Assembly concurrence analysis of the 1988 legislation
stated:
The Senate amendments limit the newly created sentence
enhancements in this bill to persons over 18 who are
convicted of sale, possession for sale, transportation or
manufacture of cocaine or cocaine base upon school grounds,
or within 1,000 feet of a school. The 1992 amendments to
the law added numerous drug crimes and provided that the
enhancement applies where the offense occurred in a public
area.
In1992, AB 2124 (Umberg) added heroin commerce to the
enhancement and limited the enhancement to public places.
Methamphetamine was added to the enhancement in 1993 by AB 104
(Quackenbush).
The school proximity enhancement statute currently provides that
"where the violation takes place upon the grounds of, or within
1,000 feet of, a public or private elementary, vocational,
junior high, or high school [while]? the school is open for
classes or?programs, or?when minors are using the facility ?
[the defendant]...shall receive an additional punishment of
three, four, or five years at the court's discretion." (Health
& Saf. Code § 11353.6, subd. (a).)
Subdivision (g) of Section 11356.6 states: "'Within 1,000 feet
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of a public or private elementary, vocational, junior high, or
high school' means any public area or business establishment
where minors are legally permitted to conduct business which is
located within 1,000 feet of any public or private elementary,
vocational, junior high, or high school."
This bill expands the enhancement to a qualifying crime
committed in any "public or private area" within 1,000 feet of a
school. The bill also defines a school to include a preschool.
3.Appellate Decisions Concerning the Purpose of the Enhancement
History and Purpose of the Law
The court in People v. Jimenez (1995) 34 Cal.App.4th 54,
explained the purpose of the school proximity enhancement and
interpreted the term "public area." The court noted that the
law initially applied to any place within 1,000 feet of a
school. In 1992, the Legislature expanded the enhancement to
heroin commerce and tailored the enhancement to any "public
area," rather than defining the enhancement solely in terms of
distance from the school.
The court found that the 1992 amendments "focus[ed] ?on
preventing the sale of drugs to students on their way to and
from school and, equally important, protecting them from
exposure to drug dealers and buyers so they will not be
influenced to emulate ?either." (Id., at p. 59.) The
Legislature limited the enhancement to times when a school is
open for classes or programs and recognized that drug sales in
purely private places inaccessible to minors do not present the
harm addressed by the enhancement. The enhancement would apply
to any business where minors are allowed to go, such as a
convenience store, but not to a bar or an interior room in a
private residence. (Ibid.)
Broadening the enhancement to include any offense committed
within 1,000 feet of a school - regardless of the absence of
actual risk to students - may not necessarily reflect the
culpability of the defendant. For example, the enhancement
would apply a hand-to-hand drug sale inside a private residence
within 1,000 feet of a school, but across a walled freeway from
the school. The enhancement would not apply to sales in a
restaurant frequented by students less than 1/5 of a mile, or a
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few city blocks, from a school.
Public Place Includes Private Property Readily Accessible to the
Public
The court in Jimenez noted that the term "public place," as used
in Penal Code Section 647, includes "an area where a member of
the public may be lawfully present." (People v. Jimenez at p.
60; quoting People v. White (1991) 227 Cal.App.3d 886, 891.)
These areas include a barber shop, common hallway in an
apartment building, front yard of a residence, or an automobile
parked on a public street. The court in Jimenez specifically
found that a public area included a private driveway or other
private property "readily accessible to the public." The court
noted that limiting the enhancement to public property "would
allow a drug dealer who openly sold narcotics within a few feet
of a school to avoid the enhancement if he stepped off of the
street and onto a private driveway." Such a construction would
greatly frustrate the purpose of the statute. (Jimenez, at p.
60.)
Other appellate cases have applied the enhancement to crimes
where an element of the crime - an essential fact that the
prosecution must prove - occurred in a public place. For
example, the court in People v. Marzet (1997) 57 Cal.App.4th 329
applied the enhancement to a case involving a conspiracy to
possess heroin for sale.<1> A conspiracy is an agreement by two
or more persons to commit a crime and an overt act in
furtherance of the conspiracy. The defendants in Marzet
possessed the crime inside a private residence and would have
sold the heroin inside the residence. However, because some of
the overt acts in furtherance of the conspiracy occurred outside
the residence - negotiations on a street corner within 1,000
feet of a school - the school proximity enhancement was properly
imposed.
4. The Case Addressed by This Bill: People v. Garcia
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<1> Marzet specifically concerned the element of an overt act in
a conspiracy. Arguably, the decision would apply to a case
where any other element is committed within the school zone.
However, committee staff has not found a case addressing that
particular issue.
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The Ruling affects only the Garcia Case and has no Precedential
Value
This bill was introduced to address an unpublished opinion of
the Sixth District of the Court of Appeal of California in San
Jose. The 6th district has jurisdiction over the counties of
Santa Clara, San Benito, Santa Cruz, and Monterey. The case at
issue is People v. Garcia, appellate docket number H040555;
Santa Clara County docket number C1241645, filed September 23,
2014. An unpublished case has no precedential value.
Prosecutors and superior courts across the state are not bound
or limited by the decision and it cannot be cited authority in
any other court case. An unpublished opinion is only relevant
or citable in other proceedings in that case.
Facts of the Case and the Court's Ruling
In Garcia, three defendants were charged with numerous drug
crimes, including manufacturing
of a methamphetamine, possession for sale of methamphetamine,
transportation for sale of methamphetamine, and other relatively
minor charges. The drug commerce charges included sentence
enhancements that the drugs weighed more than 10 pounds, that a
child resided in the place of manufacture and that the crimes
occurred within 1,000 feet of a school. The trial court
dismissed the school proximity enhancement because the crimes
did not occur in a "public area,"
as required by the enhancement (Health & Saf. Code § 11353.6,
subd. (g)). (Garcia Opinion, pp. 8; "Op".)
The Santa Clara County District Attorney relied on the Marzet
case in arguing that the defendants had engaged in an uncharged
conspiracy and the overt acts in furtherance of the conspiracy
included transporting chemicals used in manufacturing over the
sidewalk and driveway. The court agreed that this argument
would have prevailed had the prosecutor proved at the
preliminary hearing that such acts occurred while school was in
session or open for school-related programs. (Op. pp. 7-8.)
The court ruled that the crime was committed in a "private,
enclosed laboratory" that did not meet the statutory definition
of a public area. This bill would prevent similar rulings in
other cases. It would also extend the school proximity
enhancement to preschools.
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Penalties Under Current Law
After the court in Garcia struck the school proximity
enhancements, Garcia and his codefendants still faced long
felony jail terms. Specifically, Garcia faced a likely sentence
of 16 years, 8 months.<2> The other defendants faced a likely
term of 15 years and 8 months. Had the enhancement not been
stricken, Garcia would likely been sentenced to 22 years, 8
months in jail? The other defendants would have been sentenced
to 21 years in jail.
5. Sponsor's Argument Focuses on Manufacturing of a
Controlled Substance
The California District Attorneys Association - the sponsor of
the bill - emphasizes that "mixing chemicals in clandestine labs
is an inherently dangerous activity that creates substantial
risk of explosions, fires, chemical burns and toxic fume
inhalation?" Such dangers are inherent in the manufacture of
methamphetamine, but are not presented by sale or possession for
sale of drugs that occur in a private residence. Committee
members may wish to determine if the bill should be tailored to
apply to manufacturing of methamphetamine or other drugs that
create a risk of injury or illness to children at a nearby
school.
In recent years, media and law enforcement reports have noted
that a new process for making methamphetamine on a small scale
is rapidly growing in popularity. This process is typically
called "shake and bake" or "one pot" because the drug is usually
made in a 2-liter bottle or a similar closable container and
typically produces an amount for personal use. This method
requires much less pseudoephedrine than required to make
methamphetamine in a full clandestine lab. Although the
chemicals in a one-pot process can explode, the method does not
present the same degree of danger of explosion as a full lab,
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<2> The sentencing calculations assume that the defendants would
receive the middle term of five years on the manufacturing count
and that the possession for sale count was separately
punishable. The sentences would be two years higher or lower if
the court imposed the higher or lower term respectively. If the
possession for sale conviction was not separately punishable,
each sentence would be eight months lower.
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and would not produce the large amounts of toxic waste and fumes
produced by a large lab. Nevertheless, methamphetamine
manufacturing enhancements would appear to apply to one-pot or
shake and bake incidents.
SHOULD THE BILL BE LIMITED TO MANUFACTURING OF METHAMPHETAMINE?
6. Expanding the Enhancement to Crimes Within 1,000 Feet of a
Preschool
Vagueness Concerns
This bill defines a "preschool" as "a school for children under
six years of age." The bill does not further define "school" or
describe what a school for children under the age of 3 would
teach or provide.
A statute punishing a crime committed near a "school for
children under six years of age" arguably may be
unconstitutionally vague. A statute is invalid if a person of
ordinary intelligence cannot reasonably determine what the
statute requires of prohibits. (Connally v. General Const. Co.
(1926) 269 U.S. 385, 391.) The basic premise of the
void-for-vagueness doctrine is that "[n]o one may be required at
peril of life, liberty or property to speculate as to the
meaning of penal statutes." (Lanzetta v. New Jersey (1939) 306
U.S. 451, 453.)
The term "preschool" can be used to refer to a "state preschool"
- a statutorily defined and state-funded program to prepare
three and four-year-old children for kindergarten. A state
preschool must provide the following: "Developmentally
appropriate ? educational development, health services, social
services, nutritional services, parent education and parent
participation, evaluation, and staff development." (Ed. Code §
8235.)
"Preschool" is also a widely-used colloquial term that can
include any child care or day care facility for children not yet
in kindergarten, including infants. It is not unusual for a
child care facility that does not provide specialized education
programs to be described by its operators as a school. Under
this broader definition, preschools can be located in private
homes, government buildings, business, churches and secondary
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schools or colleges. A defendant may not know that he or she is
within 1,000 feet of such an entity.
As included in this bill, does the term "school" mean an entity
that provides educational and other services consistent with
"state preschool" standards? Does it mean any child care
facility described as a school? Does it mean any child care
facility? Existing law - Health and Safety Code Section 11353.1
for example - provides enhanced penalties for crimes committed
on the grounds of a child care facility. A child care facility
is defined as a "facility that provides nonmedical care to
children under 18 years of age ? essential for sustaining the
activities of daily living or for the protection of the
individual." No similar specificity is included in this bill as
to the definition of a preschool. Arguably, a defendant would
not know what constitutes a preschool within the meaning of this
bill, and the term could be applied differently by prosecutors
from county-to-county.
Policy Considerations for Including Preschools in the School
Proximity Enhancement
The court decisions interpreting and applying the school
proximity enhancement have found that the enhancement was
intended to prevent students from being exposed to drug dealers
and buyers so that they would not be influenced to emulate
either. (People v. Jimenez, supra, 33 Cal.4th 54, 59.) The
committee may wish to consider whether preschool students would
be likely to emulate the conduct of drug sellers and buyers they
might pass by when being brought to preschool by their parents.
Member also might wish to consider whether preschool students
could be injured or harmed by explosions and fumes from a
methamphetamine laboratory.
IS THE TERM "PRESCHOOL" UNCONSTITUTIONALLY VAGUE?
DO DRUG COMMERCE CRIMES COMMITTED NEAR PRESCHOOLS CREATE THE
RISK OF HARM THAT THE EXISTING SCHOOL PROXIMITY ENHANCEMENT WAS
INTENDED TO ADDRESS - PREVENTING STUDENTS FROM BEING INDUCED OR
TEMPTED TO EMULATE DRUG BUYERS OR SELLERS?
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7. Sentencing Project Study of Drug-Free School Zone Laws
In December of 2013 the Sentencing Project published a study of
drug-free school zone laws.<3> The study found the laws
problematic for two major reasons:
1. Many drug-free zone laws are too broadly written, often
creating long prison terms for crimes that did not endanger
children. Such penalties are costly, but provide little or
no public safety benefit.
2. Drug-free school zones are clustered in high-density urban
areas that are home to minority and economically
disadvantaged residents. Residents of these areas convicted
of drug crimes are subject to much harsher penalties than
persons convicted of the same crimes in other areas,
exacerbating the economic and social barriers attendant to
felony convictions.
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