BILL ANALYSIS                                                                                                                                                                                                    Ó






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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.:NoLocal:    No


          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)



          California Attorneys for Criminal Justice

          California Public Defenders Association

          Drug Policy Alliance



          Prepared by:Jerome McGuire / PUB. S. /
          6/3/15 14:15:44


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