BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 212|
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THIRD READING
Bill No: SB 212
Author: Mendoza (D)
Amended: 6/2/15
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 6-0, 4/14/15
AYES: Hancock, Anderson, Leno, McGuire, Monning, Stone
NO VOTE RECORDED: Liu
SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/28/15
AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen
SUBJECT: Controlled substances: factors in aggravation
SOURCE: Author
DIGEST: This bill: 1) provides that where a defendant is
convicted of manufacturing methamphetamine or concentrated
cannabis by chemical extraction or synthesis, the court may
consider as a factor in aggravation the fact that the crime was
committed within 200 feet of an occupied residence or any
structure where another person was present at the time the
offense was committed in the case of methamphetamine; and 2)
where the defendant manufactured concentrated cannabis by such a
method, the factor in aggravation may apply if the crime was
committed within 300 feet of an occupied residence or any
structure where another person was present at the time the
offense was committed.
ANALYSIS:
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Existing law:
1)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:
a) Cocaine, heroin and marijuana are Schedule I drugs.
b) Methamphetamine, oxycodone and codeine are Schedule II
drugs.
c) Barbiturates (tranquilizers, anabolic steroids and
specified narcotic, pain medications are Schedule III
drugs.
d) Benzodiazepines (Valium) and phentermine (diet drug) are
Schedule IV drugs.
e) Specified narcotic pain medications with active
non-narcotic active ingredients are Schedule V drugs.
(Health & Saf. Code §§ 11054-11058.)
1)Provides penalties for possession, possession for purposes of
sale, and manufacturing of controlled substances. (Health &
Saf. Code §§ 11350-11401.)
2)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.
a) 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.
b) The sentence for any person who offers to manufacture a
controlled substance by chemical extraction or synthesis is
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three, four or five years.
c) 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.)
This bill:
1)Provides that where a defendant is convicted of manufacturing
methamphetamine by chemical extraction or synthesis, the court
may consider as a factor in aggravation that the crime was
committed within 200 feet of an occupied residence or any
structure where another person was present at the time the
offense was committed.
2)Provides that where the defendant manufactured concentrated
cannabis by such a method, the court may consider as a factor
in aggravation that the crime was committed within 300 feet of
an occupied residence or any structure where another person
was present at the time the offense was committed.
Background
The dangers of manufacturing methamphetamine are relatively well
known. The manufacturing process can produce explosions, fires
and toxic waste. Persons who live, work, shop or engage in
recreation near the site of methamphetamine manufacturing are
placed in danger of injury or illness from the manufacturing
itself and the toxic waste that is often dumped at the place of
manufacturing. This bill authorizes the court to consider that
manufacturing occurred within 200 feet of any place where a
person resided or was present at the time of the crime as a
factor in aggravation justifying the upper term. A factor in
aggravation is a fact that demonstrates that the offense
committed by the defendant was more egregious than the average
crime involving a violation of the same law. It appears that a
sentencing court could validly rely on the proximity of other
persons to the manufacturing site as an aggravating factor in
sentencing a defendant for manufacturing of methamphetamine.
Concentrated cannabis comes in many forms. Hash oil is
generally made by using a solvent to strip the essential oils
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from marijuana plant matter. The resulting material is often
described as "honey oil" or "wax," reflecting the appearance of
the product. A relatively new and popular form of concentrated
cannabis is "butane honey oil" or "BHO." BHO is commonly made
by packing marijuana in a steel or glass tube, introducing or
injecting butane in one end of the tube and straining the liquid
material that emerges from the other end of the tube. The
liquid may be heated - in warm water - to purge the butane. The
resulting product is a resin or oil. Butane is volatile and
highly flammable. Using too much heat or exposing the butane to
a spark can cause an explosion, especially inside a structure,
as evaporated butane gas can fill a room. Extracting BHO
outside allows the butane vapors to dissipate into the air.
Other solvents - including alcohol - can be used to produce hash
oil.
This bill authorizes the court to consider that the defendant
manufactured concentrated cannabis through the use of a chemical
solvent within 300 feet of an occupied residence or place where
others were present at the time of manufacturing as a factor in
aggravation. The 300 feet proximity standard applies to
concentrated cannabis manufacturing by chemical extraction
because explosions from that process can be quite powerful. BHO
manufacturing explosion can severely damage or destroy the place
of manufacturing, severely damage nearby structures and injure
or kill nearby persons. Where property is damaged or persons
are injured or killed, additional charges and penalties would
apply. This bill addresses the dangers presented by
manufacturing concentrated cannabis through use of a chemical
solvent, not actual damage caused by the process.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
According to the Senate Appropriations Committee, this bill has
no fiscal impact.
SUPPORT: (6/1/15)
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Alameda County District Attorney
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 Peace Officers Association
California Professional Firefighters
California State Sheriffs' Association
Chief Probation Officers of California
Crime Victims United of California
Los Angeles Police Protective League
Riverside Sheriffs' Association
OPPOSITION: (6/1/15)
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Drug Policy Alliance
Prepared by:Jerome McGuire / PUB. S. /
6/2/15 12:22:51
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