BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                        SB 333|
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                                UNFINISHED BUSINESS 


          Bill No:  SB 333
          Author:   Galgiani (D), et al.
          Amended:  8/31/15  
          Vote:     21  

           SENATE PUBLIC SAFETY COMMITTEE:  7-0, 4/28/15
           AYES:  Hancock, Anderson, Leno, Liu, McGuire, Monning, Stone

           SENATE APPROPRIATIONS COMMITTEE:  7-0, 5/28/15
           AYES:  Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen

           SENATE FLOOR:  40-0, 6/3/15
           AYES:  Allen, Anderson, Bates, Beall, Berryhill, Block,  
            Cannella, De León, Fuller, Gaines, Galgiani, Glazer, Hall,  
            Hancock, Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson,  
            Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning,  
            Moorlach, Morrell, Nguyen, Nielsen, Pan, Pavley, Roth, Runner,  
            Stone, Vidak, Wieckowski, Wolk

           ASSEMBLY FLOOR:  78-0, 9/2/15 - See last page for vote

           SUBJECT:   Controlled substancesControlled substances.


          SOURCE:    Author

          DIGEST:   This bill provides that possession of  
          gamma-Hydroxybutyric acid (GHB), flunitrazepam (Rohypnol), or  
          ketamine with the intent to commit a sex crime, as defined, is a  
          felony, punishable pursuant to Penal Code Section 1170,  
          subdivision (h), for a felony term of 16 months, two years or  
          three years.

          Assembly Amendments provide that an executed felony sentence for  
          possession of GHB, flunitrazepam or ketamine shall be served  








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          pursuant to Penal Code Section 1170, subdivision (h), in a  
          county jail unless the defendant has a prior or current  
          conviction for a serious or violent felony, as specified, or is  
          required to register as a sex offender. 

          ANALYSIS: 
          
          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  
            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 who 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.  








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            (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.)

          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).)

          This bill:








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          1)Provides that a person who possesses GHB, ketamine or  
            flunitrazepam, also known by the trade name Rohypnol, with the  
            intent to commit sexual assault, as defined, is guilty of a  
            felony, punishable by imprisonment pursuant to Penal Code  
            Section 1170, subdivision (h), for 16 months, or two or three  
            years in a county jail, or served in prison if the defendant  
            has a prior or current conviction for a serious or violent  
            felony, or is required to register as a sex offender.

          2)Defines "sexual assault" for the purposes of this bill to  
            include, but not be limited to, violations of specified  
            provisions related to sexual assault committed against a  
            victim who is prevented from resisting by an intoxicating or  
            anesthetic substance, or any controlled substance. 

          3)States the finding of the Legislature that in order to deter  
            the possession of ketamine, GHB, and Rohypnol 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.

          Background

          The crime defined by this bill - possession of a specified drug  
          with intent to commit a sex crime - is similar to an attempt to  
          commit a sex crime, but with an important distinction.  An  
          attempt is the intent to commit a crime and an affirmative, yet  
          unsuccessful, step towards committing the crime.  "Mere  
          preparation" is not an affirmative step.  (People v. Breverman  
          (1998) 19 Cal.4th 142, 154; CALCRIM 406.)  This bill allows  
          conviction of defendants who did not go beyond preparation.  For  
          example, the defendant told his companions at a bar that he  
          wanted to drug a woman and have sex with her.  He puts a drug in  
          her drink, but her friends intervene when the defendant tries to  
          get the woman to leave the bar with him.  This could be  
          described as preparation to commit a sex crime, not a direct  
          step towards commission of the crime, and thus not an attempt.   
          This conduct would constitute guilt of possession of a drug with  
          intent to commit a sex crime.








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          Defendants with prior sex offenses are excluded from the  
          misdemeanor drug possession provisions in Proposition 47.   
          However, if an excluded defendant's possession of a drug had a  
          sexual motivation or connection, a simple possession conviction  
          would not reflect that.  Even if the prior was a sex offense,  
          there would be nothing about the current conviction indicating a  
          sexual motivation or connection.  In contrast, in a prosecution  
          for possession with intent to commit a sex crime under this  
          bill, the defendant's prior convictions and misconduct could be  
          used as evidence of his intent in the current case. 

          Ketamine is an anesthetic-dissociative drug.  It appears to be  
          the drug of choice in pediatric surgery and pediatric emergency  
          pain management, as it blocks pain without full unconsciousness  
          and depressed respiration.  Ketamine is widely used in Africa  
          and other countries with low per-capita income levels, as it is  
          effective, cheap, and safe.  Greater restrictions on ketamine  
          have caused alarm in Africa among public health experts.   
          Ketamine has also recently been used as an "off label" drug for  
          the treatment of depressions.  Patients lose depressive symptoms  
          quickly and the effect lasts for months.  Clinical trials for  
          use of ketamine as a depression treatment have been remarkably  
          positive.  Ketamine is also used for intoxication or  
          mind-altering experiences.  Users seek the dissociative  
          experience that would be considered an unwanted or problematic  
          side effect in medial use.   
          (http://www.ncbi.nlm.nih.gov/pubmed/18645539;  
          http://emupdates.com/wp-content/uploads/2011/01/ACEP-Ketamine-Gui 
          deline-2011.pdf;  
          http://www.theguardian.com/world/2015/feb/27/raver-drug-ketamine- 
          control-plan-at-un-condemned-as-potential-disaster;  
          http://www.nytimes.com/2014/12/10/business/special-k-a-hallucinog 
          en-raises-hopes-and-concerns-as-a-treatment-for-depression.html?_ 
          r=0; http://www.nimh.nih.gov/about/director/2014/ketamine.shtml;  
          http://www.nimh.nih.gov/health/trials/depression.shtml.)

          GHB is prescribed to narcoleptics to allow them to sleep deeply  
          at night.  It is often used as a so-called "club drug."  It has  
          been described as being similar to alcohol intoxication, but  
          with more euphoric effect and without a hangover.  GHB is  
          dangerous when mixed with alcohol, as both are central nervous  








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          system depressants.  ("The silent G," Contemporary Drug  
          Problems, 2012;  
          https://www.erowid.org/experiences/subs/exp_GHB.shtml#General.)
          Flunitrazepam is a benzodiazepine, the class of  
          sedative-hypnotic drugs that includes Xanax, Valium, and many  
          others.  It was developed in 1965.  It has been described as  
          being 10 times more potent than Valium, but is typically  
          prescribed in doses that are 1/10th that of a common Valium  
          dose.  It is not available legally in the United States, but it  
          is generally available in the rest of the world.  It is the most  
          widely prescribed drug of its class in Europe.  It has been  
          successfully used to treat alcoholics suffering from delirium  
          tremens.  Flunitrazepam is very widely used by heroin addicts to  
          boost the effects of the drug without risking overdose and to  
          ease withdrawal.   
          (http://www.cesar.umd.edu/cesar/drugs/rohypnol.asp;   
          http://www.ncbi.nlm.nih.gov/pubmed/810233;   
          http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3454351/.)

          The limited studies on drug facilitated sexual assault have  
          found that although a person may be surreptitiously drugged with  
          Rohypnol, GHB, or ketamine, it is much more common for a person  
          to consume these drugs voluntarily for their intoxicating  
          effects.  Two major studies were funded by the United States  
          Department of Justice.  One of these studies considered data  
          collected from college students.  The other examined data  
          collected from women reporting sexual assaults in cities in a  
          number of states across the country.  The college study  
          indicated that 7.8% of women were sexually assaulted when they  
          were incapacitated after voluntarily consuming drugs and/or  
          alcohol and 0.6% were assaulted when they were given a drug  
          surreptitiously.  The great majority of incapacitated victims  
          reported consuming alcohol (89%) or being voluntarily  
          intoxicated prior to the assault (82%).  The multiple city study  
          concluded that most of the subjects testing positive for these  
          ketamine, GHB and flunitrazepam had taken them voluntarily.    
          (Krebs, et al., The Campus Sexual Assault Study, National  
          Institute of Justice (Oct. 2007);  Negruz, et al., Estimate of  
          the Incidence of Drug-Facilitated Sexual Assault in the U.S,  
          Univ. of Illinois, Chicago (Nov. 2005).)  
          This bill targets persons who possess these drugs for predatory  
          purposes, rather than those who merely possess these drugs for  








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          personal use.  

          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   Yes

          According to the Senate Appropriations Committee, potentially  
          moderate state costs (General Fund) for incarceration in prison  
          of any defendant who is not eligible for a county jail sentence  
          under Penal Code Section 1170 (h) because the defendant has been  
          convicted of a serious or violent felony, or must register as a  
          sex offender.


          SUPPORT:   (Verified  9/2/15)



          California Insurance Commissioner Dave Jones


          Association for Los Angeles Deputy Sheriffs


          California College and University Police Chiefs Association 


          California Correctional Supervisors Organization


          California Narcotic Officers Association


          Crime Victims United of California


          Los Angeles Police Protective League


          Peace Officers Research Association of California


          Riverside Sheriffs' Association








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          San Bernardino County Sheriff




          OPPOSITION:  (Verified  9/2/15) 

          Legal Services for Prisoners with Children


           ASSEMBLY FLOOR:  78-0, 9/2/15
           AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,  
            Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang,  
            Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle,  
            Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina  
            Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,  
            Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden,  
            Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder,  
            Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina,  
            Melendez, Nazarian, Obernolte, O'Donnell, Olsen, Patterson,  
            Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas,  
            Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner,  
            Waldron, Weber, Wilk, Williams, Wood
           NO VOTE RECORDED: Mullin, Atkins



          Prepared by:Jerome McGuire / PUB. S. / 
          9/2/15 19:29:53


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