BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 212 Hearing Date: April 14, 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 Professional Firefighters; California
Narcotic Officers Association; California State
Sheriffs' Association; Chief Probation Officers of
California; Crime Victims United of California; Los
Angeles Police Protective League; Riverside Sheriffs'
Association; California Peace Officers Association;
Alameda County District Attorney
Opposition:American Civil Liberties Union; California Attorneys
for Criminal Justice; California Public Defenders
Association; Drug Policy Alliance
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PURPOSE
The purpose of this bill is to extend the enhancement for a drug
commerce crime committed on property that is accessible to the
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 enhancement based on the weight of the
heroin, cocaine, possessed for sale, sold or transported.
Enhancement ranges from three years for one kilogram to 25 years
for 80 kilograms. The increments of the enhancement are three,
five, 10, 15, 20, and 25 years. (Health and Saf. Code §§
11370.4, subd. (a).)
Existing law provides enhancements based on the weight or volume
of the methamphetamine or PCP possessed for sale, sold or
transported. The enhancements range from three years for one
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kilogram/30 liters to 15 years for 20 kilograms/400 liters. The
increments of the enhancement are three, five, 10, and 20 years.
(Health and Saf. Code §§ 11370.4, subd. (b).)
Existing law provides that manufacturing any controlled
substance by chemical extraction or synthesis is guilty of a
felony, punishable pursuant to Penal Code Section 1170,
subdivision (h) for a term of three, five or seven years and a
fine not to exceed $50,000.
The fact that a minor under the age of 16 years resided
in a structure in which methamphetamine was manufactured by
chemical extraction or synthesis is a factor in
aggravation, indicating that the defendant should be
sentenced to the upper term of seven years, unless an
enhancement of two or five years is imposed under Section
11397.7 for manufacturing methamphetamine where a minor
under the age of 16 resides or the crime caused great
bodily injury to such a child.
The sentence for any person who offers to manufacture a
controlled substance by chemical extraction or synthesis is
three, four or five years.
Fines collected under this section are to be transferred
to the State Treasurer for deposit in the Drug Lab Clean-up
Account. (Health & Saf. Code § 11379.6.)
Existing law provides enhancement based on the weight or volume
of methamphetamine or PCP the defendant manufactured by chemical
extraction or synthesis: Enhancement ranges from three years
for one pound/three gallons to 15 years for 105 gallons/44
pounds. Health & Saf. Code § 11379.8.)
Existing law provides that any person convicted of unlawfully
manufacturing, or possessing specified precursor chemicals 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).)
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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.)
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.
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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
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
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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."
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
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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:
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
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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.
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.
In 1992, 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
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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
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
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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
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
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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 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
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.)
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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.
Available Penalties in the Garcia Case under Current Law
After the court in Garcia struck the school proximity
enhancements, Garcia and his codefendants still faced long
felony jail terms if convicted on all the charges.
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
could have been sentenced to 22 years, 8 months in jail. The
other defendants would have been sentenced to 21 years in jail.
Actual Sentences imposed pursuant to Plea Bargains
The committee obtained the Abstract of Judgment for defendant
Garcia and the minute orders or related documents for the plea
bargains for all three defendants. Garcia was sentenced to a
term of 11 years in jail, pursuant to what appears to be a
particularly complicated plea agreement. Garcia received a term
of two years for sale of methamphetamine, a
one-year-and-eight-month consecutive term for manufacturing and
an eight months consecutive term for possession for sale. The
10-year enhancement based on the weight in pounds of the
methamphetamine manufactured in the offense was stricken from
the sentence. The court did impose an enhancement of five years
based on the weight of the methamphetamine that was sold or
transported. A consecutive enhancement based on the weight of
the methamphetamine possessed for sale was also imposed. Seven
years were to be served in jail and four on mandatory
supervision. Defendant Francisco Magdaleno pleaded guilty to
one charge of sale or transportation of methamphetamine, was
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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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granted probation and ordered to serve 180 days as a condition
of probation. Defendant Gabriel Magdalenoi pleaded guilty to
misdemeanor resisting arrest and was sentenced to serve a term
of 364 days in jail.
It is unclear what benefit the prosecutor would have gained had
the court not dismissed the school trafficking enhancement. It
appears likely that the enhancement would have simply added to
the plea bargaining leverage of the prosecutor in Garcia's case.
Prosecutors can often choose from an array of enhancements that
apply in cases involving drug commerce. The enhancement based
on the weight of the methamphetamine involved in manufacturing
crime was dismissed as part of the bargain in the Garcia case.
The additional enhancement allegation for manufacturing within
1,000 feet of a school would thus not likely have substantially
affected the bargain or the resulting sentence.
IN THE CASE THAT PROMPTED INTRODUCTION OF THIS BILL, WOULD THE
ENHANCEMENT DISMISSED BY THE COURT HAVE ACTUALLY AFFECTED THE
SENTENCE THE DEFENDANTS RECEIVED THROUGH PLEA BARGAINS?
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.
It appears that the danger from methamphetamine manufacturing
largely extends to persons in nearby residences. Arguably, any
enhancement or sentencing aggravation for manufacturing should
reflect that danger. Manufacturing methamphetamine does not
appear to present any special danger to children at a school up
to three blocks from the manufacturing site.
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
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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,
and would not produce the large amounts of toxic waste and fumes
produced by a large lab.
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
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homes, government buildings, business, churches and secondary
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?
7. Sentencing Project Study of Drug-Free School Zone Laws
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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.
5. Research on Sentences as a Deterrent to Crime
Criminal justice experts and commentators have noted that, with
regard to sentencing, "a key question for policy development
regards whether enhanced sanctions or an enhanced possibility of
being apprehended provide any additional deterrent benefits.
Research to date generally indicates that increases in
the certainty of punishment, as opposed to the
severity of punishment, are more likely to produce
deterrent benefits.<4>
A comprehensive report published in 2014, entitled The
Growth of Incarceration in the United States, discusses the
effects on crime reduction through incapacitation and
deterrence, and describes general deterrence compared to
specific deterrence:
A large body of research has studied the effects of
----------------------
<3>
http://www.sentencingproject.org/detail/publication.cfm?publicati
on_id=526
<4> Valerie Wright, Ph.D., Deterrence in Criminal Justice
Evaluating Certainty vs. Severity of Punishment (November 2010),
The Sentencing Project
(http://www.sentencingproject.org/doc/Deterrence%20Briefing%20.pd
f.)
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incarceration and other criminal penalties on crime.
Much of this research is guided by the hypothesis that
incarceration reduces crime through incapacitation and
deterrence. Incapacitation refers to the crimes
averted by the physical isolation of convicted
offenders during the period of their incarceration.
Theories of deterrence distinguish between general and
specific behavioral responses. General deterrence
refers to the crime prevention effects of the threat
of punishment, while specific deterrence concerns the
aftermath of the failure of general deterrence-that
is, the effect on reoffending that might result from
the experience of actually being punished. Most of
this research studies the relationship between
criminal sanctions and crimes other than drug
offenses. A related literature focuses specifically
on enforcement of drug laws and the relationship
between those criminal sanctions and the outcomes of
drug use and drug prices.<5>
In regard to deterrence, the authors note that in "the
classical theory of deterrence, crime is averted when the
expected costs of punishment exceed the benefits of
offending. Much of the empirical research on the deterrent
power of criminal penalties has studied sentence
enhancements and other shifts in penal policy. . . .
Deterrence theory is underpinned by a rationalistic
view of crime. In this view, an individual
considering commission of a crime weighs the benefits
of offending against the costs of punishment. Much
offending, however, departs from the strict decision
calculus of the rationalistic model. Robinson and
Darley (2004) review the limits of deterrence through
harsh punishment. They report that offenders must
have some knowledge of criminal penalties to be
----------------------
<5> The Growth of Incarceration in the United States (2014),
Jeremy Travis, Bruce Western and Steve Redburn, Editors,
Committee on Causes and Consequences of High Rates of
Incarceration, The National Research Council, p. 131 (citations
omitted)
(http://johnjay.jjay.cuny.edu/nrc/NAS_report_on_incarceration.pdf
,)
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deterred from committing a crime, but in practice
often do not."<6>
Members may wish to discuss whether the "rationalistic
view" of crime described above likely would apply to
persons who manufacture concentrated cannabis - that is,
whether the sentencing enhancements proposed by this bill
would be known by these offenders and, if so, whether the
additional time would discourage commission of the crime.
WOULD A SENTENCE ENHANCEMENT DISCOURAGE PERSONS FROM
MANUFACTURING METHAMPHETAMINE?
The authors of the 2014 report discussed above conclude
that incapacitation of certain dangerous offenders can have
"large crime prevention benefits," but that incremental,
lengthy prison sentences are ineffective for crime
deterrence:
Whatever the estimated average effect of the
incarceration rate on the crime rate, the available
studies on imprisonment and crime have limited utility
for policy. The incarceration rate is the outcome of
policies affecting who goes to prison and for how long
and of policies affecting parole revocation. Not all
policies can be expected to be equally effective in
preventing crime. Thus, it is inaccurate to speak of
the crime prevention effect of incarceration in the
singular. Policies that effectively target the
incarceration of highly dangerous and frequent
offenders can have large crime prevention benefits,
whereas other policies will have a small prevention
effect or, even worse, increase crime in the long run
if they have the effect of increasing postrelease
criminality.
Evidence is limited on the crime prevention effects of
most of the policies that contributed to the post-1973
increase in incarceration rates. Nevertheless, the
evidence base demonstrates that lengthy prison
sentences are ineffective as a crime control measure.
Specifically, the incremental deterrent effect of
increases in lengthy prison sentences is modest at
----------------------
<6> Id. at 132-133.
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best. Also, because recidivism rates decline markedly
with age and prisoners necessarily age as they serve
their prison sentence, lengthy prison sentences are an
inefficient approach to preventing crime by
incapacitation unless they are specifically targeted
at very high-rate or extremely dangerous offenders.
For these reasons, statutes mandating lengthy prison
sentences cannot be justified on the basis of their
effectiveness in preventing crime.<7>
With regard to the drug trade, the authors state:
For several categories of offenders, an incapacitation
strategy of crime prevention can misfire because most
or all of those sent to prison are rapidly replaced in
the criminal networks in which they participate.
Street-level drug trafficking is the
paradigm case. Drug dealing is part of a complex
illegal market with low barriers to entry. Net
earnings are low, and probabilities of eventual arrest
and imprisonment are high . . . Drug policy research
has nonetheless shown consistently that arrested
dealers are quickly replaced by new recruits . . . .
At the corner of Ninth and Concordia in Milwaukee in
the mid-1990s, for example, 94 drug arrests were made
within a 3-month period. "These arrests, [the police
officer] pointed out, were easy to prosecute to
conviction. But . . . the drug market continued to
thrive at the intersection" . . . .
Despite the risks of drug dealing and the low average
profits, many young disadvantaged people with little
social capital and limited life chances choose
to sell drugs on street corners because it appears to
present opportunities not
otherwise available. However, such people tend to
overestimate the benefits of
that activity and underestimate the risks . . . . This
perception is compounded by peer influences, social
pressures, and deviant role models provided by
successful dealers who live affluent lives and manage
to avoid arrest. Similar analyses apply to many
members of deviant youth groups and gangs: as members
----------------------
<7> Id. at 155-156 (emphasis added).
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and even leaders are arrested and removed from
circulation, others take their place. Arrests and
imprisonments of easily replaceable offenders create
illicit "opportunities" for others.<8>
Members may wish to discuss whether the sentence
enhancement proposed by this bill would provide any
appreciable crime deterrent benefits, and whether greater
incapacitation for these offenders could generate the
"misfire" consequence described above.
BASED ON THE RESEARCH DESCRIBED ABOVE, WOULD THE SENTENCING
ENHANCEMENTS PROPOSED BY THIS BILL IMPROVE PUBLIC SAFETY?
IN A COST-BENEFIT ANALYSIS, WOULD THE ADDED COSTS OF
INCARCERATION FROM THE EXPANSION OF THIS SENTENCING
ENHANCEMENT BE OUTWEIGHED BY ITS PUBLIC SAFETY BENEFIT,
EITHER THROUGH INCAPACITATION OR DETERRENCE?
-- END -
---------------------------
<8> Id. at 146 (citations omitted).