BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 305 Hearing Date: April 14, 2015
-----------------------------------------------------------------
|Author: |Bates |
|-----------+-----------------------------------------------------|
|Version: |February 23, 2015 |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Urgency: |No |Fiscal: |Yes |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Consultant:|JM |
| | |
-----------------------------------------------------------------
Subject: Sentence Enhancements: Concentrated Cannabis
HISTORY
Source: San Diego County District Attorney; California
District Attorneys Association
Prior Legislation:AB 3392 (Weggeland) Ch. 871, Stats. of 1996
Support: California Narcotics Officers Association; California
State Sheriffs' Association; County of San Diego
Opposition:American Civil Liberties Union; California Chapter of
the National Organization for the Reform of Marijuana
Laws; Drug Policy Alliance; Legal Services for
Prisoners with Children
PURPOSE
The purpose of this bill is to include manufacturing
"concentrated cannabis" in an existing sentence enhancement
SB 305 (Bates ) PageB
of?
under which a person convicted of manufacturing methamphetamine
by chemical extraction or synthesis, or possession of precursor
chemicals with the intent to make PCP, is subject to a sentence
enhancement of two years if a child under 16 resides in the
place of manufacturing and five years if a child suffers great
bodily injury.
Existing law defines marijuana as "all parts of the plant
Cannabis sativa L., whether growing or not; the seeds of that
plant; the resin extracted from any part of the plant; and every
compound, manufacture, salt, derivative, mixture, or preparation
of the plant, its seeds or resin." (Health and Saf. Code §
11018.)
Existing law defines "concentrated cannabis" as "the separated
resin, whether crude or purified, obtained from marijuana."
(Health and Saf. Code § 11006.5.)
Existing law provides that possession of not more than 28.5
grams of marijuana is an infraction, punishable by a fine of up
to $100. Possession of more than 28.5 grams of marijuana is a
misdemeanor, punishable by a jail term of up to six months, a
fine of up to $500, or both. (Health and Saf. Code § 11357,
subds (a)-(b).)
Existing law provides that where a crime is punishable pursuant
to Penal Code Section 1170, subdivision (h), the defendant shall
serve the applicable felony sentence in the county jail, unless
the defendant has been previously convicted of a serious felony
or must register as a sex offender. (Pen. Code §§ 290, 117o,
subd. (h), 1192.7, subd. (c).) <1>
Existing law provides that cultivation or processing of
marijuana is a felony, punishable pursuant to Penal Section
1170, subdivision (h), by a sentence of 16 months, two years or
three years and a fine of up to $10,000. (Health and Saf. Code
§ 11358.)
---------------------------
<1> Section 1170 (h) states that a defendant convicted of a
violent felony (Pen. Code §667.5, subd. (c)) must serve his or
her execute felony sentence in prison. However, as all violent
felonies are serious felonies, a reference to serious felonies
includes violent felonies.
SB 305 (Bates ) PageC
of?
Existing law provides that possession of marijuana for sale or
transfer of any kind is a felony, punishable pursuant to Penal
Code Section 1170, subdivision (h), for a term of 16 months, two
years or three years and a fine of up to $10,000. (Health and
Saf. Code § 11359.)
Existing law provides that sale or transfer of marijuana is a
felony, punishable pursuant to Penal Code Section 1170,
subdivision (h), for a term of two, three or four years and a
fine of up to $10,000. (Health and Saf. Code § 11360.)
Existing law provides that possession of concentrated cannabis
is a misdemeanor, punishable by a county jail term of up to one
year and a fine of up to $500, except that if the defendant has
been convicted of a serious felony or is required to register as
a sex offender, the offense is a felony, punishable by a
sentence of 16 months, two years or three years, pursuant to
Penal Code Section 1170, subd. (h). (Health and Saf. Code §
11357, subd. (a).)
Existing law provides that a person who, by chemical extraction
or synthesis, manufactures, compounds, converts, produces,
derives, processes, or prepares any controlled substance, shall
be punished by imprisonment pursuant to Penal Code Section 1170,
subdivision (h) for three, five, or seven years and a fine of up
to $50,000. (Health and Saf. Code § 11379.6.)
Existing law provides that where a defendant possesses specified
combinations of chemicals, or specified chemical variants of
such chemicals, with the intent to manufacture PCP is guilty of
a felony, punishable pursuant to Section 1170, subdivision (h)
by a term of two, four or six years and a fine of up to $10,000.
(Health and Saf. Code § 11383.)
Existing law provides that where a defendant is convicted of
manufacturing methamphetamine by chemical extraction or
synthesis, or convicted of possession of precursor chemicals
with the intent to make PCP, and a child under the age of 16
resides in the structure where the manufacturing took place, the
defendant shall receive an enhancement of two years. If a child
under the age of 16 suffers great bodily injury, the enhancement
SB 305 (Bates ) PageD
of?
is five years. These two enhancements must be served in prison,
as well as the underlying conviction for manufacturing, per se.
(Health and Saf. Code § 11379.7; People v. Vega (2014) 222
Cal.App.4th 1374.)
Existing law defines great bodily injury as a "significant or
substantial physical injury." Great bodily injury can include
abrasions, bruises and lacerations, as well as more serious
injuries. (People v. Salas (1978) 77 Cal.App.3d 600, 605-607;
People v. Washington 210 1042, 1047-1048.)
This bill provides that a defendant who is convicted of
manufacturing concentrated cannabis shall be subject to an
enhancement of two years if a child under the age of 16 resides
in the place of manufacturing and an enhancement of five years
if a child under the age of 16 suffers great bodily injury. The
enhancement term and the underlying conviction shall be served
in prison.
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 February of this year 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
SB 305 (Bates ) PageE
of?
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:
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:
SB 305 (Bates ) PageF
of?
There have been a total of 55 butane hash oil labs
with children residing or present in the structure
through December 2014. Since January 2015 there have
been 7 more instances to total 62 to date. In 2012
there were only 4 labs found, so the need to update
statute is needed now more than ever. As of August of
2014, 6 children had been reported injured and 1 child
dead, but clearly many more have gone unreported and
these labs endanger those in nearby residences.
As of February of 2014, the Los Angeles Times reported
that a Los Angeles County Deputy District Attorney has
prosecuted 26 people since 2013 under a law that
penalized PCP and meth manufacturing, but not
concentrated cannabis. Clearly the problem of children
exposed to these fires or explosions is on the rise.
Existing law does not go far enough to protect
children when dealing with concentrated cannabis.
Meth and PCP manufacturing in any structure where
children under the age of 16 are present can already
add 2 or 5 years to one's felony sentence, if caught.
Unfortunately manufacturing concentrated cannabis is
left out of this code section; therefore, district
attorneys do not have the full panoply of tools to
protect vulnerable children living in these homes.
2.Background on Concentrated Cannabis, Including Hashish, Butane
Honey Oil and Related Substances
The most common and widely known form of concentrated cannabis
is hashish, or hash. There are references to hashish use in the
Middle East at least as early as the 10th Century.<2><3>
Hashish has traditionally been made by hand, with simple
screens, presses and cloth bags - commonly, marijuana is
---------------------------
<2>
http://druglibrary.org/schaffer/hemp/history/first12000/2.htm
<3>
http://www.narconon.org/drug-information/hashish-history.html
SB 305 (Bates ) PageG
of?
essentially pounded into a resinous powder that is heated or
pressed to form a block or sticky paste.<4>
Hash oil is generally made by using a solvent to strip the
essential oils 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.
In Colorado, hash oil is legal, but production is highly
regulated. The Los Angeles Times reported on February 5, 2014:
Safer forms of production exist where it is sanctioned
and regulated under state law. In Colorado's highly
controlled market, state officials this month set
forth rules requiring hash oil producers to follow the
same procedures that manufacturers use to extract oils
from plants to make canola oil, fragrances, food
additives, pharmaceuticals and shampoo.
Butane extraction must be done in a closed loop system
so that no vapor escapes, in rooms with powerful
ventilation systems. And the facilities must comply
with health and safety codes and be inspected by a
certified industrial hygienist or professional
----------------------
<4> http://nimbinwave.com/facts/afghanistan-hashish
SB 305 (Bates ) PageH
of?
engineer.
Hash oil contains a very high concentration of the active
chemicals in marijuana, most notably THC, which is understood to
produce the high experienced by the user. However, numerous
other chemicals are found in marijuana, hashish and hash oil.
The most widely known of these is CBD. CBD antagonizes
(cancels) the effect of THC. The National Cancer Institute in
the National Institutes of Health has noted that "[t]he use of
Cannabis for medicinal purposes dates back at least 3,000
years." CBD and THC have been identified as having numerous
medical benefits, including relief from nausea, pain and
inflammation, reducing seizures and shrinking and inhibiting the
growth of tumors."<5>
3.Broad Scope of This Bill
As noted above, concentrated cannabis has been used for
centuries. Recently, however, using solvents to strip the oils
from whole plant material have become increasingly popular. The
most common solvent used in the process is butane, although
isopropyl, ethyl alcohol and carbon dioxide can also be used.
Butane is especially volatile and flammable. When butane
evaporates during the process, concentrations of the odorless
gas can fill a room, similar to how natural gas from a leaky gas
line or valve can fill a house. Any spark or flame, even static
electricity, can cause the gas to explode.
There are methods to produce hash oil without solvents. One
method growing in popularity involves soaking marijuana in very
cold water as it is filtered. Another method uses olive oil.<6>
It can be argued that these methods do not use chemical
processes, and thus would not be covered by the bill. As there
---------------------------
<5>
http://www.cancer.gov/cancertopics/pdq/cam/cannabis/patient/page2
<6>
http://www.medicaljane.com/2014/02/20/european-study-what-is-the-
best-cannabis-oil-extraction-method/
SB 305 (Bates ) PageI
of?
are few reported cases interpreting what constitutes chemical
processing of concentrated cannabis, a definitive conclusion
cannot be stated.
In discussions with committee staff, the sponsor agreed that the
bill should be limited to cases in which defendants used
volatile solvent extraction to manufacture concentrated
cannabis. Members may wish to consider whether the enhancement
the bill proposes should be limited to such circumstances.
IF THE BILL IS APPROVED BY THE COMMITTEE, SHOULD IT SPECIFY THAT
THE ENHANCEMENT APPLIES TO THE USE OF A VOLATILE SOLVENT TO
MANUFACTURE CONCENTRATED CANNABIS?
4.Appellate Decisions Have Found That the Enhancement for
Endangering or Injuring a Child in the Manufacturing of
Methamphetamine or PCP, and the Underlying Conviction for
Manufacturing Itself, must be Served in Prison
The statute imposing a two-year enhancement for methamphetamine
manufacturing that causes great bodily injury to a child and the
five-year enhancement for manufacturing the drug in a structure
where a child resides - Health and Safety Code Section 11379.7 -
provides that the enhancement terms must be served in prison.
The court in People v. Vega, supra, 222 Cal.App. 4th 1374, held
that where a defendant is convicted of manufacturing
methamphetamine and is subject to either enhancement the entire
sentence must be served in prison. The enhancements essentially
pull the sentence for the underlying crime of manufacturing,
which would otherwise be served in jail pursuant to Penal Code
Section 1170, subdivision (h), into prison as well.
The court essentially took the following steps in its analysis:
Penal Code Section 18 provides: " Except in cases where
a different punishment is prescribed by any law of this
state, every offense declared to be a felony is punishable
by imprisonment for 16 months, or two or three years in the
state prison unless the offense is punishable pursuant to
subdivision (h) of Section 1170."
The sentence for a subdivision (h) crime is to be served
SB 305 (Bates ) PageJ
of?
in jail, except where the defendant has a prior serious
felony conviction or is required to register as a sex
offender. Paragraph (3) of subdivision (h) provides that
those defendants must serve their sentences in prison.
Health and Safety Code Section 11379.7 provides that an
enhancement for manufacturing methamphetamine or PCP in a
place where a child resides, or where a child is injured,
shall be served in prison. This is an additional exception
to the general rule in Penal Code Section 1170 (h) that the
sentence for the crime of manufacturing, per se, is to be
served in county jail. That is, a defendant who is
convicted of manufacturing methamphetamine or PCP shall
serve his or her sentence in county jail, unless he or she
has a disqualifying prior conviction or an enhancement
requiring a prison term applies.
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.<7>
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
incarceration and other criminal penalties on crime.
----------------------
<7> 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.)
SB 305 (Bates ) PageK
of?
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.<8>
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
----------------------
<8> 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
,)
SB 305 (Bates ) PageL
of?
deterred from committing a crime, but in practice
often do not."<9>
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 CONCENTRATED CANNABIS?
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.
----------------------
<9> Id. at 132-133.
SB 305 (Bates ) PageM
of?
Specifically, the incremental deterrent effect of
increases in lengthy prison sentences is modest at
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.<10>
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
----------------------
<10> Id. at 155-156 (emphasis added).
SB 305 (Bates ) PageN
of?
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
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.<11>
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 -
---------------------------
<11> Id. at 146 (citations omitted).