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 
          
          ---------------------------
          <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,  
          ---------------------------
          <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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