BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 1182|
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THIRD READING
Bill No: SB 1182
Author: Galgiani (D)
Introduced:2/18/16
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 3/29/16
AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone
SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/27/16
AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen
SUBJECT: Controlled 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 (h) for sixteen
months, two years or three years.
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
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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 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,
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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:
1)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 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.
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
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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 author states:
In November 2014, Proposition 47 reclassified felonies
as misdemeanors. One 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. 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. 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.
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:
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
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commensurate benefit.
Members may wish to consider whether possession of a drug with
intent to commit a sex crime is equivalent to the crime of
attempt to commit a sex 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
prevented the defendant's commission of the offense.
Preparation to commit a crime is not a direct step towards
commission of a crime. (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, and thus not an attempt.
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. 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, which are admissible in sex
crime prosecutions, unlike prosecutions for other crimes.
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.
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.
Ketamine is an anesthetic-dissociative drug. It appears to be
the drug of choice in pediatric surgery and pediatric emergency
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pain management, as it blocks the sensation of pain without full
unconsciousness and depressed respiration.
(http://www.ncbi.nlm.nih.gov/pubmed/18645539.) 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.
(http://emupdates.com/wp-content/uploads/2011/01/ACEP-Ketamine-Gu
ideline-2011.pdf.)
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.
(www.nytimes.com/2014/12/10/business/special-k-a-hallucinogen-rai
ses-hopes-and-concerns-as-a-treatment-for-depression.html?_r=0.)
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.
(http://www.nimh.nih.gov/about/director/2014/ketamine.shtml;
http://www.nimh.nih.gov/labs-at-nimh/join-a-study/trials/adult-st
udies/rapid-antidepressant-effects-of-ketamine.shtml.)
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,
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." (The
silent 'G'" Contemporary Drug Problems, 2012.) 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. 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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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.
(http://www.cesar.umd.edu/cesar/drugs/rohypnol.asp) 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. (http://www.ncbi.nlm.nih.gov/pubmed/8102333) 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).)
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
According to the Senate Appropriation Committee:
State prison commitments: Likely minor, if any, impact on the
number of commitments to state prison, as defendants with one
or more prior convictions for a serious/violent felony or an
offense requiring sex offender registration can already be
sentenced to state prison under existing law for simple
possession of the controlled substances specified in this
measure.
State prison sentences: Potential future increase in state
incarceration costs (General Fund) to the extent the new
felony offense of possession with intent to commit sexual
assault leads to longer state prison terms than otherwise
would have been imposed under existing law for simple
possession of these controlled substances for defendants with
qualifying prison-eligible prior convictions. To the extent
even two defendants are impacted in any one year could
increase state incarceration costs by $58,000 based on the
estimated contract bed rate of $29,000 per inmate.
County jail sentences: Potential future increase in local
incarceration costs (Local Funds) to the extent convictions
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for the new felony offense result in longer county jail terms
than otherwise would have been imposed under the existing
misdemeanor offense of unlawful possession of a specified
controlled substance, which carries a maximum term of one year
in county jail.
SUPPORT: (Verified5/27/16)
Association of Orange County Deputy Sheriffs
California College and University Police Chiefs Association
California Correctional Supervisors Association
California District Attorneys Association
California Narcotic Officers Association
California Police Chiefs Association
California State Sheriffs' Association
California Statewide Law Enforcement Association
Crime Victims United of California
Fraternal Order of Police
Long Beach Police Officers Association
Los Angeles County Professional Peace Officer Association
Los Angeles Deputy Sheriffs Association
Los Angeles Police Protective League
Peace Officers Research Association of California
Riverside Sheriffs Association
Sacramento County Deputy Sheriffs' Association
OPPOSITION: (Verified5/27/16)
California Attorneys for Criminal Justice
Legal Services for Prisoners with Children
Prepared by:Jerome McGuire / PUB. S. /
5/28/16 17:15:09
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