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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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.
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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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