BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 333


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          Date of Hearing:  June 30, 2015


          Counsel:               Stella Choe








                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                                  Bill Quirk, Chair





          SB  
          333 (Galgiani) - As Amended May 6, 2015





          SUMMARY:  Specifies that any person who possesses Ketamine,  
          gamma hydroxybutyric acid (GHB) or Rohypnol with the intent to  
          commit sexual assault, as defined, is guilty of a felony  
          punishable by imprisonment in the state prison for 16 months, or  
          two or three years.  Specifically, this bill:  



          1)Defines "sexual assault" for the purposes of this bill to mean  
            conduct in violation of specified provisions of law penalizing  
            sexual battery, rape, spousal rape, sodomy, or oral  








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            copulation.

          2)States the finding of the Legislature that in order to deter  
            the possession of Ketamine, GHB, and Rohypnol (flunitrazepam)  
            by sexual predators and to take steps to prevent the use of  
            these drugs to incapacitate victims for purposes of sexual  
            exploitation, it is necessary and appropriate that an  
            individual who possesses one of these substances for predatory  
            purposes be subject to felony penalties.





          EXISTING LAW:  





          1)Provides that the possession of specified controlled  
            substances including Ketamine, flunitrazepam and GHB, unless  
            upon the prescription of a physician, dentist, podiatrist, or  
            veterinarian licensed to practice in this state, is a  
            misdemeanor punishable by up to one year in a county jail,  
            except for a person who has one or more prior convictions for  
            a specified violent felony or has been convicted of a prior  
            offense requiring the person to register as a sex offender,  
            then the penalty shall be a felony. (Health & Saf. Code, §§  
            11350, subd. (a) and 11377, subd. (a).)

          2)Classifies controlled substances in five schedules according  
            to their danger and potential for abuse.  Schedule I  
            controlled substances have the greatest restrictions and  
            penalties, including prohibiting the prescribing of a Schedule  
            I controlled substance.  (Health & Saf. Code, §§ 11054 to  
            11058.)

          3)States, except as provided, that every person who possesses  








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            for sale or purchases for purposes of sale any of the  
            specified controlled substances, including cocaine and heroin,  
            shall be punished by imprisonment in a county jail for two,  
            three, or four years.  (Health & Saf. Code, § 11351.)

          4)Provides that every person that transports, imports into the  
            state, sells, furnishes, administers, or gives away, or offers  
            to transport, import into the state, sell, furnish, or give  
            away, or attempts to import into this state or transport  
            cocaine, cocaine base, or heroin, or other specified  
            controlled substances listed in the controlled substance  
            schedule, without a written prescription from a licensed  
            physician, dentist, podiatrist, or veterinarian shall be  
            punished by imprisonment for three, four, or five years.  
            (Health & Saf. Code, § 11352, subd. (a).)

          5)States that the possession for sale of methamphetamine, and  
            other specified controlled substances is punishable by  
            imprisonment in a county jail for 16 months, two or three  
            years. (Health & Saf. Code, § 11378.)

          6)Provides that every person that transports, imports into the  
            state, sells, furnishes, administers, or gives away, or offers  
            to transport, import into the state, sell, furnish, or give  
            away, or attempts to import into this state or transport  
            methamphetamine, or other specified  controlled substances   
            listed in the controlled substance schedule, without a written  
            prescription from a licensed physician, dentist, podiatrist,  
            or veterinarian shall be punished by imprisonment for two,  
            three, or four years.  (Health & Saf. Code, § 11379, subd.  
            (a).)

          7)States that every person guilty of administering to another  
            any chloroform, ether, laudanum, or any controlled substance,  
            anesthetic, or intoxicating agent, with intent thereby to  
            enable or assist himself or herself or any other person to  
            commit a felony, is guilty of a felony punishable by  
            imprisonment in the state prison for 16 months, or two or  
            three years.  (Pen. Code, § 222.)








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          8)States that rape is an act of sexual intercourse accomplished  
            where a person is prevented from resisting by any intoxicating  
            or anesthetic substance, or any controlled substance, and this  
            condition was known, or reasonably should have been known, by  
            the accused. (Pen. Code, §§ 261, subd. (a)(3); 262, subd.  
            (a)(2).)

          9)Specifies felony penalties for any person who commits an act  
            of sodomy, oral copulation or sexual penetration where the  
            victim is prevented from resisting by any intoxicating or  
            anesthetic substance, or any controlled substance, and this  
            condition was known, or reasonably should have been known, by  
            the accused. (Pen. Code, §§ 286, subd. (i); 288a, subd. (i);  
            289, subd. (e).)

          FISCAL EFFECT:  Unknown.





          COMMENTS:  



          1)Author's Statement:  According to the author, "During my time  
            in the State Legislature, this body has been dedicated to  
            spreading awareness and preventing sexual assault. When a  
            ballot measure such as Proposition 47 is placed in front of  
            voters, the potential for unintended consequences arise. I  
            firmly believe that voters in California did not intend to  
            weaken sexual assault statutes by passing Prop 47. The  
            malicious intent behind possessing and using 'date rape' drugs  
            on another individual is a heinous act deserving of a serious  
            consequence."

          2)Proposition 47:  On November 4, 2014, California voters  
            approved Proposition 47, also known as the Safe Neighborhoods  








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            and Schools Act, which reduced penalties for certain offenders  
            convicted of nonserious and nonviolent property and drug  
            crimes. Proposition 47 also allows inmates serving sentences  
            for crimes affected by the reduced penalties to apply to be  
            resentenced. 

          According to the California Secretary of State's web site, 59.6  
            percent of voters approved Proposition 47. (See  
            <  http://elections.cdn.sos.ca.gov/sov/2014-general/pdf/2014-comp 
            lete-sov.pdf  > [as of Mar. 14, 2015].)  The purpose of the  
            measure was "to maximize alternatives for nonserious,  
            nonviolent crime, and to invest the savings generated from  
            this act into prevention and support programs in K-12 schools,  
            victim services, and mental health and drug treatment."  
            (Ballot Pamp., Gen. Elec. (Nov. 4, 2014), Text of Proposed  
            Laws, p. 70.)  One of the ways the measure created savings was  
            by requiring misdemeanor penalties instead of felonies for  
            nonserious, nonviolent crimes like petty theft and drug  
            possession for personal use, unless the defendant has prior  
            convictions for specified violent crimes. (Ibid.)  

          Four months into its implementation, Proposition 47 has resulted  
            in fewer inmates in state prisons and county jails.  According  
            to the Legislative Analysts' Office (LAO), "As of January 28,  
            2015, the inmate population in the state's prisons was about  
            113,500, or 3,600
            inmates below the February 2015 cap, and slightly below the  
            final February 2016 cap. The expected impact of Proposition 47  
            on the prison population will make it easier for the state to  
            remain below the population cap."  (LAO, The 2015-16 Budget:  
            Implementation of Proposition 47 (Feb. 2015), p. 10.)  The LAO  
            report also found that Proposition 47 will likely reduce the  
            costs of criminal justice for counties, by freeing up jail  
            beds and reducing the time probation departments need to  
            follow prisoners after they are released. (Id. at p. 17.)

          3)California Constitutional Limitations on Amending a Voter  
            Initiative:  Because Proposition 47 was a voter initiative,  
            the Legislature may not amend the statute without subsequent  








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            voter approval unless the initiative permits such amendment,  
            and then only upon whatever conditions the voters attached to  
            the Legislature's amendatory powers.  (People v. Superior  
            Court (Pearson) (2010) 48 Cal.4th 564, 568; see also Cal.  
            Const., art. II, § 10, subd. (c).)  The California  
            Constitution states, "The Legislature may amend or repeal  
            referendum statutes.  It may amend or repeal an initiative  
            statute by another statute that becomes effective only when  
            approved by the electors unless the initiative statute permits  
            amendment or repeal without their approval."  (Cal. Const.,  
            art. II, § 10, subd. (c).) Therefore, unless the initiative  
            expressly authorizes the Legislature to amend, only the voters  
            may alter statutes created by initiative.  

          The purpose of California's constitutional limitation on the  
            Legislature's power to amend initiative statutes is to protect  
            the people's initiative powers by precluding the Legislature  
            from undoing what the people have done, without the  
            electorate's consent.  Courts have a duty to jealously guard  
            the people's initiative power and, hence, to apply a liberal  
            construction to this power wherever it is challenged in order  
            that the right to resort to the initiative process is not  
            improperly annulled by a legislative body.  (Proposition 103  
            Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th  
            1473.)  Yet, despite the strict bar on the Legislature's  
            authority to amend initiative statutes, judicial decisions  
            have recognized that the Legislature is not thereby precluded  
            from enacting laws addressing the general subject matter of an  
            initiative.  The Legislature remains free to address a  
            "related but distinct area" or a matter that an initiative  
            measure "does not specifically authorize or prohibit." (People  
            v. Kelly (2010) 47 Cal.4th 1008, 1025-1026.) 

          As to the Legislature's authority to amend the initiative,  
            Proposition 47 states:  "This act shall be broadly construed  
            to accomplish its purposes.  The provisions of this measure  
            may be amended by a two-thirds vote of the members of each  
            house of the Legislature and signed by the Governor so long as  
            the amendments are consistent with and further the intent of  








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            this act. The Legislature may by majority vote amend, add, or  
            repeal provisions to further reduce the penalties for any of  
            the offenses addressed by this act."  (Ballot Pamp., Gen.  
            Elec. (Nov. 4, 2014), Text of Proposed Laws, p. 74.) 

          This bill does not affect Proposition 47 because this bill does  
            not deal with simple possession of drugs.  Similar to the  
            statutes that require specific intent to sell controlled  
            substances which remain felonies, this bill will require  
            specific intent to commit sexual assault in order to charge a  
            defendant with a felony.  Because the bill as amended does not  
            affect Proposition 47, this bill does not have to go before  
            the voters. 

          4)"Club Drugs":  Ketamine, GHB, and flunitrazepam are commonly  
            designated as "club drugs" due to their association with  
            raves, nightclubs, concerts, and parties. Other drugs included  
            in this designation are MDMA (ecstasy), methamphetamine, and  
            cocaine. 
          
          Club drugs became popular in the 1990s and tend to be used by  
            youth and young adults to heighten mood, increase extraversion  
            and physical energy, and intensify the senses.  
            (National Inst. on Drug Abuse, Drug Facts: Club Drugs (GHB,  
            Ketamine, and Rohypnol) (December 2014)  
            <  http://www.drugabuse.gov/publications/drugfacts/club-drugs-ghb 
            -ketamine-rohypnol  > [as of Mar. 18, 2015].)  Studies also show  
            that these drugs are commonly used by members in the LGBT  
            community. (Palamar and Halkitis, A Qualitative Analysis of  
            GHB Use Among Gay Men: Reasons for Use Despite Potential  
            Adverse Outcomes (Jan. 2006); Mansergh, et al., The Circuit  
            Party Men's Health Survey: Findings and Implications for Gay  
            and Bisexual Men, American Journal of Public Health (June  
            2001).)

            GHB: According to the National Institute on Drug Abuse, GHB is  
            a central nervous system (CNS) depressant that was approved by  
            the Food and Drug Administration (FDA) in 2002 for use in the  
            treatment of narcolepsy, which is a sleep disorder. This  








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            approval came with severe restrictions, including its use only  
            for the treatment of narcolepsy, and the requirement for a  
            patient registry monitored by the FDA.  GHB is also a  
            metabolite of the inhibitory neurotransmitter  
            gamma-aminobutyric acid (GABA).  It exists naturally in the  
            brain, but at much lower concentrations than those found when  
            GHB is abused.  

            Rohypnol (flunitrazepam): According to the National Institute  
            on Drug Abuse, Rohypnol is a benzodiazepine (chemically  
            similar to sedative-hypnotic drugs such as Valium or Xanax),  
            but it is not approved for medical use in this country, and  
            its importation is banned.  

            Ketamine: According to the National Institute on Drug Abuse,  
            Ketamine is a dissociative anesthetic, mostly used in  
            veterinary practice. (National Inst. on Drug Abuse, Drug  
            Facts: Club Drugs (GHB, Ketamine, and Rohypnol) (December  
            2014)  
            <  http://www.drugabuse.gov/publications/drugfacts/club-drugs-ghb 
            -ketamine-rohypnol  > [as of Mar. 18, 2015].)  Recently, small  
            studies at prestigious medical centers like Yale, Mount Sinai  
            and the National Institute of Mental Health suggest Ketamine  
            can relieve depression in many people who are not helped by  
            widely used conventional antidepressants like Prozac or  
            Lexapro. (Hamilton, Depression Treatments Inspired by Club  
            Drug Move Ahead in Tests, (Jun. 2015) National Public Radio <  
            http://www.npr.org/sections/health-shots/2015/05/28/409800015/k 
            etamine-depression-treatments-inspired-by-club-drug-move-ahead- 
            in-tests> [as of June 19, 2015]; Pollack, Special K, a  
            Hallucinogen, Raises Hopes and Concerns as a Treatment for  
            Depression, New York Times (Dec. 9, 2014).)

            Due to these drugs' uses both recreationally and clinically,  
            any law that punishes simple possession of these drugs would  
            likely result in capturing many people who do not possess  
            these drugs for predatory purposes.  This bill specifies that  
            a person must possess one of these drugs with the intent to  
            commit sexual assault in order for the person to be punished  








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            with a felony.

          5)Drug-Facilitated Sexual Assault Statistics: Although a person  
            may be surreptitiously drugged with Rohypnol, GHB, or Ketamine  
            in order to incapacitate that person, it is much more common  
            for a person to consume these drugs voluntarily for its  
            intoxicating effects. 

          One study, funded by the National Institute of Justice, examined  
            the prevalence, nature, and reporting of various types of  
            sexual assault experienced by college students.  (Krebs, et  
            al., The Campus Sexual Assault Study, National Institute of  
            Justice (Oct. 2007).)  The researchers worked with two large,  
            public universities to collect data from over 6,800  
            undergraduate students (5,466 women and 1,375 men).  The data  
            indicated that 7.8% of women were sexually assaulted when they  
            were incapacitated after voluntarily consuming drugs and/or  
            alcohol and 0.6% were sexually assaulted when they were  
            incapacitated after having been given a drug without their  
            knowledge.  (Id. at p. iv; see also Section 6-1.) The study  
            found that the majority of the sexual assault victims that  
            were incapacitated reported having consumed alcohol (89%) or  
            being intoxicated prior to being assaulted (82%). (Id. at  
            Section 5.1.3.) 

            Another study conducted by the University of Illinois at  
            Chicago, funded by the U.S. Department of Justice, worked with  
            four clinics (Texas, California, Minnesota, and Washington  
            State) to study the prevalence of drugs in sexual assault  
            cases received by these clinics. (Negruz, et al., Estimate of  
            the Incidence of Drug-Facilitated Sexual Assault in the U.S,  
            Univ. of Illinois, Chicago (Nov. 2005).)  The study used  
            self-reporting surveys as well as toxicological analyses of  
            the subjects.  The drugs inquired about in the self-reporting  
            survey included marijuana, cocaine, and amphetamines.  These  
            three drugs were chosen because they are not normally given  
            surreptitiously. (Id. at pp. 7-8.)  The toxicological analyses  
            tested for those three drugs, as well as other drugs that are  
            often considered "date rape drugs" which include Rohypnol,  








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            GHB, Ketamine, clonazepam and scopolamine. (Id. at p. 112.)   
            Testing positive for one of these drugs could be due to  
            several different reasons: valid prescription use by the  
            subject, recreational drug use by the subject, surreptitious  
            drug administration by a potential assailant, or, in the case  
            of GHB, endogenous levels because GHB exists naturally in the  
            human body. (Id. at pp. 112-113.)  

            Among the 144 participants, 61.8% tested positive for one of  
            the drugs being analyzed in the study.  (Negruz, Estimate of  
            the Incidence of Drug-Facilitated Sexual Assault in the U.S,  
            supra, at p. 2.)  The drugs separated out as "date rape" drugs  
            were found in seven subjects (4.86%), of which three had a  
            prescription. No one admitted to having a prescription for  
            GHB, or using it recreationally, and GHB was only found in  
            levels considered to be endogenous.  (Id. at p. 113.)   
            However, the study does note that GHB has a short detection  
            time of 10-12 hours and because only four subjects reported to  
            the clinic within 12 hours, if any of the subjects had been  
            given GHB, the levels would have been undetectable.  (Id. at  
            p. 121.)  Ketamine and scopolamine were not reported to by any  
            of the subjects in the surveys, and were not found.   
            Flunitrazepam (Rohypnol) was not admitted to by anyone, but  
            was found in four subjects. (Id. at p. 113.)  However, when  
            tested a second time a week later, some of these subjects  
            tested positive for flunitrazepam again, indicating that the  
            subjects are likely recreational users of the drug but did not  
            report it in the survey.  (Id. at pp. 89, 189.)  Based on  
            these results, the study concluded that most of the subjects  
            positive for these drugs had taken them by their own accord  
            and not received them surreptitiously. (Id. at p. 189.)

            The study also evaluated whether participants truthfully  
            reported their drug use. The number of subjects who admitted  
            to taking drugs voluntarily was 40%, as compared to the 61.8%  
            of subjects who tested positive for one of the analyzed drugs.  
             (Negruz, Estimate of the Incidence of Drug-Facilitated Sexual  
            Assault in the U.S, supra, at p. 190.)  Researchers  
            hypothesized that the subjects' under-reporting of their drug  








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            usage may be attributed to the fact that the drugs being  
            analyzed are illegal and a person may face prosecution for its  
            use, or that the subjects may have felt that that their  
            recreational use of illegal drugs could negatively affect the  
            course of a sexual assault prosecution. (Id. at pp. 16, 190.) 

            While drug-facilitated sexual assault is a serious problem,  
            these studies confirm that it occurs most often after an  
            individual's own recreational use of drugs, rather than  
            surreptitious drugging by another person. Drugs such as  
            Rohypnol, Ketamine and GHB may be used to facilitate sexual  
            assault of an incapacitated person, but these are not the only  
            drugs that can be used, nor are they the most commonly used.   
            The substance that is most commonly found in sexual assault  
            victims is alcohol. (Krebs, The Campus Sexual Assault Study,  
            supra at p. 89; also see Grimes, Alcohol is by far the most  
            dangerous "date rape drug" (Sept. 22, 2014) The Guardian,  
            <  http://www.theguardian.com/science/blog/2014/sep/22/alcohol-da 
            te-rape-drug-facilitated-sexual-assault-dfsa  > [as of Mar. 19,  
            2015].)  

            This bill targets persons who possess these drugs for  
            predatory purposes, rather than those who merely possess these  
            drugs for personal use. This will ensure that victims of these  
            crimes who may have consumed these drugs voluntarily prior to  
            being assaulted will not have to fear prosecution of a felony  
            when deciding to whether to report the incident.  
            
          6)Argument in Support:  According to the California Probation,  
            Parole and Correctional Association, "Ketamine, flunitrazapam,  
            or gamma hydroxybutyric acid (GHB) commonly known as 'date  
            rape' or 'club' drugs can be found as pills, liquids, or  
            powders.  These drugs are used by perpetrators with the intent  
            to assist in sexual assault or robbery.  When ingested, these  
            drugs can affect a person very quickly and cause victims to  
            become weak, confused, and even pass out.  Victims usually do  
            not remember what happened while they were drugged.

          "These drugs while lawful when used for medical purposes, are  








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            very potent and dangerous.  Those who use them with the intent  
                                                                                          to commit sexual and physical assault, and other crimes,  
            should be prosecuted accordingly."

          7)Argument in Opposition:  According to Legal Services for  
            Prisoners with Children, "A small number of people may intend  
            to use these drugs to aid in committing an assault.  However,  
            we have seen that harsher punishment has not proven to be a  
            deterrent in drug use, drug abuse or in rates of sexual  
            violence over the past decades.  Instead, we have seen a  
            concurrent rise in drug use, abuse, and drug related violence  
            along with increased penalties.  Incredibly, decreasing  
            penalties, increasing education and increasing education and  
            increasing compassion have all been proven to lower the harms  
            associated with substance abuse and not to increase rates of  
            use.
            
            "Our prisons and jails are overcrowded, underfunded, and  
            ill-equipped to address and dismantle the culture of sexual  
            violence, misogyny and oppression that leads to sexual  
            assault.  This bill may make it more likely that more people  
            spend more time in prison - environments of sexual aggression,  
            violence, and oppression - where they are unlikely to reform,  
            and from which they may be more likely to go on to become  
            violence or hardened criminals.  Furthermore, this bill will  
            force taxpayers to bear the burdens of arrest, trial and  
            felony imprisonment - more than $47,000 per person, per year  
            of incarceration.  This money is better spent on safer  
            neighborhoods and schools - exactly where Proposition 47  
            voters meant for it to go."

          8)Related Legislation: AB 46 (Lackey) is substantially similar  
            to this bill.  AB 46 was held in the Committee on  
            Appropriations' Suspense File.

          9)Prior Legislation:  

             a)   SB 649 (Leno), of the 2013-2014 Legislative Session,   
               would have made the simple possession for personal use of  








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               cocaine, cocaine base, heroin, opium, and other specified  
               narcotics, opiates and hallucinogens listed in the  
               controlled substance schedule an alternate  
               felony/misdemeanor, rather than a straight felony.  SB 649  
               was vetoed.

             b)   SB 1506 (Leno), of the 2011-2012 Legislative Session,  
               would have made the unlawful possession of specified  
               controlled substances a misdemeanor.  SB 1506 failed  
               passage on the Senate floor.

             c)   SB 1067 (Horton), of the 2003-2004 Legislative session,  
               would have excluded the drugs GHB, Rohypnol, and Ketamine  
               from coverage by the term "nonviolent drug possession  
               offense" thereby making possession of these drugs  
               ineligible for probation and drug treatment under  
               Proposition 36, approved by the voters on November 7, 2000.  
                SB 1067 failed passage in this Committee.

          REGISTERED SUPPORT / OPPOSITION:





          Support


          


          California District Attorneys Association (Sponsor)


          California Peace Officers' Association


          California Police Chiefs Association 









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          California Probation, Parole and Correctional Association


          California Sexual Assault Investigators Association 
          California State Lodge, Fraternal Order of Police 
          California State Sheriffs' Association


          Crime Victims Action Alliance 
          Insurance Commissioner Dave Jones


          Los Angeles County District Attorney's Office


          Los Angeles County Professional Peace Officers Association 
          Long Beach Police Officers Association 
          Sacramento County Deputy Sheriffs' Association 



          Opposition


          


          Legal Services for Prisoners with Children





          Analysis Prepared by:Stella Choe / PUB. S. / (916)  
          319-3744











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