BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 333| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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 SB 333 Page 2 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. SB 333 Page 3 (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: SB 333 Page 4 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. SB 333 Page 5 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 SB 333 Page 6 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 SB 333 Page 7 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 SB 333 Page 8 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 **** END ****