BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 1182 Hearing Date: March 29, 2016
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|Author: |Galgiani |
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|Version: |February 18, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JM |
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Subject: Controlled Substances
HISTORY
Source: Author
Prior Legislation:SB 333 (Galgiani) - Vetoed, 2015
Support: Los Angeles Deputy Sheriffs Association; California
College and University Police Chiefs Association;
California Correctional Supervisors Association;
California Narcotic Officers Association; California
Police Chiefs Association; Los Angeles County
Professional Peace Officer Association; Crime Victims
United of California; Los Angeles Police Protective
League; Riverside Sheriffs Association; California
District Attorneys Association; Peace Officers
Research Association of California; California State
Sheriffs' Association; Fraternal Order of Police;
Association of Orange County Deputy Sheriffs; Long
Beach Police Officers Association; California
Statewide Law Enforcement Association; Sacramento
County Deputy Sheriffs' Association;
Opposition:California Attorneys for Criminal Justice; Legal
Services for Prisoners with Children
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PURPOSE
The purpose of this bill is to provide 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 (h) for sixteen
months, two years or three years.
Existing law 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).)
Existing law 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.)
Existing law 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.)
Existing law 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
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for three, four, or five years. (Health & Saf. Code, § 11352,
subd. (a).)
Existing law 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.)
Existing law 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).)
Existing law 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.)
Existing law 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).)
Existing law 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 provides that a person who possesses gamma
hydroxybutyric acid (GHB), ketamine or flunitrazepam, also known
by the trade name Rohypnol, with the intent to commit sexual
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assault, as defined, is guilty of a felony, punishable by
imprisonment pursuant to Penal Code Section 1170 (h) for sixteen
months, two years or three years.
This bill 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.
This bill 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.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several 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 December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
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final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 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).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 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 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:
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In November 2014, California voters approved
Proposition 47 which reclassified many crimes from
felonies to misdemeanors. One of these
reclassifications involved the possession of the drugs
Rohypnol, GHB and ketamine-commonly known as "date
rape" drugs. Prior to Proposition 47, possession of
a date rape drug was punishable as a "wobbler" in
which the prosecutor or judge can determine whether a
felony or misdemeanor is appropriate based on the
facts of the case. Prop. 47 removed the ability to
charge an individual with a felony for possession.
A fundamental difference exists between the possession
of recreational drugs meant to be consumed by that
individual and the possession of 'date rape' drugs
when intended to be used on another individual. These
drugs will render a sexual assault victim completely
incapacitated. They also result in a victim having
little to no memory of the assault which took place.
This allows a rapist to escape prosecution because a
victim can't remember the details of the crime when
questioned in court. Concerns have been expressed in
the law enforcement community that the new law
relating to the possession of date rape drugs can
potentially weaken sexual assault statutes and harm
public safety.
Senate Bill 1182 would give prosecutors the ability to
bring felony charges against individuals caught in
possession of date rape drugs with the intent to
commit a sexual assault. Given the difficult nature
of prosecuting sexual assault crimes, the Legislature
should embrace this opportunity to provide serious
consequences for criminals looking to use date rape
drugs to facilitate a heinous crime.
2.Difference Between Attempted Sexual Assault and Possession of
a Drug with Intent to Commit a Sex Crime
Governor Brown vetoed the identical predecessor to this bill -
SB 333 (Galgiani) - in 2015. In relevant part, the Governor's
veto message on this and numerous other bills stated:
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Each of these bills creates a new crime - usually by
finding a novel way to characterize and criminalize
conduct that is already proscribed. This
multiplication and particularization of criminal
behavior creates increasing complexity without
commensurate benefit.
Members may wish to consider whether possession of a drug
with intent to commit a sex crime is equivalent to attempt
to commit a sex crime, which already is a crime. In many
cases, the proof of an attempted sex crime would overlap
with proof of possession of a drug with intent to commit a
sex crime. An attempt to commit a crime has the following
two elements: The defendant intended to commit a crime and
he or she took a direct, yet ultimately ineffectual, step
towards commission of the crime. An attempted crime would
have been completed except for some circumstance or
occurrence that interrupted or prevented the defendant's
commission of the offense. Preparation to commit a crime
is not a direct step towards commission of a crime that
establishes an attempt. (People v. Breverman (1998) 19
Cal.4th 142, 154; CALCRIM 406.) Possession of a drug with
the intent to commit a sex crime would appear to constitute
preparation, not an attempt, under current law.
With the crime defined by this bill - possession of a specified
drug with the intent to commit a sex crime - the prosecution
would not need to prove that the defendant went beyond
preparation and took a direct step toward commission of the
crime. The prosecutor would simply need to prove possession,
including exercising dominion and control of a drug that is not
held on the defendant's person, with the intent to commit a sex
offense. Proof of intent would typically involve the
defendant's admission of such intent or prior convictions and
arrests for similar conduct.
In most cases, there are limits on the use of prior convictions
as proof of a current crime. Specifically, a defendant's prior
convictions or bad acts cannot be used to establish his or her
propensity to commit the charged offense. (Evid. Code § 1101,
subd. (a).) Propensity evidence is essentially improper
character evidence. Jurors who are informed that a defendant
has been previously convicted of a crime - especially the same
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crime for which the defendant is being tried - are highly likely
to convict the defendant because of his or her propensity to
commit the charged offense, not the evidence in the current
case. People v. Thompson (1980) 27 Cal.3d 303, 317-318.)
Evidence of prior convictions and other bad acts are, however,
admissible to prove knowledge intent, motive, common plan or
identity. (Evid. Code § 1101, subd. (b); People v. Ewoldt
(1994) 7 Cal.4th at 380, 393-406.)
As to sex crime prosecutions, "all that changed ?with the advent
of [Evidence Code] section 1108." (People v. Britt (2002) 104
Cal.App.4th 500, 505.) Evidence Code Section 1108, subdivision
(a) provides: "In a criminal action in which the defendant is
accused of a sexual offense, evidence of the defendant's
commission of another sexual offense or offenses is not made
inadmissible by Section 1101, if the evidence is not
inadmissible pursuant to Section 352." Section 352 authorizes a
trial judge to bar use of evidence that is more prejudicial than
probative. Evidence is more prejudicial than probative if the
unfairness of the evidence outweighs its tendency to prove an
issue in the case.
Jurors find prior convictions or arrests for a similar offense
to the one charged to be very powerful evidence. The fact that
jurors will likely rely on a prior conviction in weighing a
defendant's guilt than the evidence about the current offense is
precisely why prior conviction evidence is generally
inadmissible. (People v. Thompson, supra, 27 Cal.3d 303,
317-318.)
3.Plea Bargain Issues - Obtaining a Plea to Possession of a Drug
with Intent to Commit a Sex Crime in Cases where Conviction at
Trial of a Violent Sex Crime is Uncertain
The crime defined by this bill could be the basis for a plea
bargain in cases where the prosecutor and the defendant are each
not confident of prevailing in the trial of a sex crime such as
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rape or forced oral copulation. If there are proof problems
with a more serious sex offense - for example, the witness
cannot remember important things about the incident or she is
extremely reluctant to testify - the prosecutor could still
obtain a felony conviction for sex crime through a plea, rather
than the defendant going free or being convicted of an offense
that doesn't reflect his criminal sexual intent. A defendant
could be motivated to plead guilty in order to avoid a long
sentence if he were convicted of the more serious offense.
Because the consequences for something going wrong are so severe
- a long prison term for the defendant and the possibility that
a predator walks free for the prosecution - each side tends to
be acutely aware of the weaknesses in his or her case.
Defendants with prior sex offenses are excluded from misdemeanor
possession of drugs charges under Proposition 47. However, a
simple possession conviction would not reflect that the
defendant's crime was sexually motivated or that he has a
history of sex crimes. The crime defined by this bill would
clearly reflect the defendant's criminal sexual intent.
4.Use of Ketamine, Flunitrazepam or GHB for Prescription
Medications, Self-Medication and Intoxication
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 the sensation of pain without full
unconsciousness and depressed respiration.<1><2> Ketamine is
very widely used in African and other countries with low
per-capita income levels, as it is effective, cheap and safe.
Greater restrictions of ketamine manufacturing and distribution
have caused great alarm in Africa among physicians and public
health experts.<3>
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<1> http://www.ncbi.nlm.nih.gov/pubmed/18645539
<2>
http://emupdates.com/wp-content/uploads/2011/01/ACEP-Ketamine-Gui
deline-2011.pdf
<3>
http://www.theguardian.com/world/2015/feb/27/raver-drug-ketamine-
control-plan-at-un-condemned-as-potential-disaster
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Ketamine has recently been used as an "off label" drug for the
treatment of depressions. Patients report that they lose their
depressive symptoms quickly and the effect lasts for months.<4>
Clinical trials have been conducted or are underway for use of
ketamine as a formally recognized depression treatment. The
results of the trials have been remarkably positive.<5><6>
Ketamine is 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. Users
lose awareness of their surroundings and report vivid
hallucinations. Some people found them profound and
enjoyable,<7> others found the experience disturbing.
GHB is prescribed to narcoleptics to allow them to sleep deeply
at night. It is often used as a so-called "club drug."<8> It
has been described as being similar to alcohol intoxication, but
with more euphoric effects, without a hangover the next day.
However, users' experiences are quite variable.<9> GHB is
dangerous when mixed with alcohol, as both are central nervous
system depressants.
Flunitrazepam is a benzodiazepine, the class of
sedative-hypnotic drugs that include Xanax, Valium, and many
others. It was developed in 1965. It has been described as 10
times more potent than Valium, but is typically prescribed in
doses that are 1/10th of that of a common Valium dose. It is
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<4>
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
<5> http://www.nimh.nih.gov/about/director/2014/ketamine.shtml
<6>http://www.nimh.nih.gov/labs-at-nimh/join-a-study/trials/adult
-studies/rapid-antidepressant-effects-of-ketamine.shtml
<7> https://www.erowid.org/experiences/exp.php?ID=38360
<8> 'The silent 'G'" Contemporary Drug Problems, 2012
<9>
https://www.erowid.org/experiences/subs/exp_GHB.shtml#General
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not available legally in the United States, but it is available
around the world. It has been the most widely prescribed drug
of its class in Europe.<10> It has been successfully used to
treat alcoholics suffering from delirium tremens during
withdrawal. Flunitrazepam is very widely used by heroin addicts
to boost the effects of the drug without risking overdose and to
ease withdrawal.<11><12> A University of Illinois study on the
extent of drug facilitated sexual assault noted use of the drug
by opiate addicts and cocaine users, including rape victims
themselves. (Negruz, et al., Estimate of the Incidence of
Drug-Facilitated Sexual Assault in the U.S, Univ. of Illinois,
Chicago (Nov. 2005).)
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<10> http://www.cesar.umd.edu/cesar/drugs/rohypnol.asp
<11> http://www.ncbi.nlm.nih.gov/pubmed/8102333
<12> http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3454351/