BILL ANALYSIS Ó
SB 1182
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Date of Hearing: June 14, 2016
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
SB
1182 (Galgiani) - As Introduced February 18, 2016
SUMMARY: Makes possession of gamma hydroxybutyric acid (GHB),
ketamine, or flunitrazepam, also known as Rohypnol, with the
intent to commit sexual assault, as defined, a felony.
Specifically, this bill:
1)Defines "sexual assault" for the purposes of this bill to
include, but not be limited to, violations of specified
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provisions related to sexual assault committed against a
victim who is prevented from resisting by an intoxicating or
anesthetic substance, or any controlled substance.
2)Specifies that this crime is a county jail-eligible felony,
punishable by imprisonment for 16 months, or two or three
years.
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.
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
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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, or 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
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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. Rape is generally punishable by imprisonment in
state prison for three, six, or eight years. (Pen. Code, §§
261, subd. (a)(3); 262, subd. (a)(2); 264.)
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).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "In November
2014, California voters approved Proposition 47 which
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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 Prop. 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. Possession
of a date rape drug is now a mandatory misdemeanor.
"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.
"This will allow prosecutors to bring felony charges against a
perpetrator who has been found in possession of these drugs
and has taken steps to use them to facilitate 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."
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2)Governor's Veto Message: This bill is identical to SB 333
(Galgiani), of the current legislative session, which was
vetoed by the Governor. This bill was among several other
criminal justice bills vetoed by the Governor last year
signaling the Governor's push for sentencing reform.
According to the Governor's veto message:
"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.
"Over the last several decades, California's criminal code has
grown to more than 5,000 separate provisions, covering almost
every conceivable form of human misbehavior. During the same
period, our jail and prison populations have exploded.
"Before we keep going down this road, I think we should pause
and reflect on how our system of criminal justice could be
made more human, more just and more cost-effective."
3)Proposition 47: On November 4, 2014, California voters
approved Proposition 47, also known as the Safe Neighborhoods
and Schools Act, which reduced penalties for certain offenders
convicted of nonserious and nonviolent property and drug
crimes. Proposition 47 also allows inmates serving sentences
for crimes affected by the reduced penalties to apply to be
resentenced.
According to the California Secretary of State's web site, 59.6
percent of voters approved Proposition 47. (See
< http://elections.cdn.sos.ca.gov/sov/2014-general/pdf/2014-comp
lete-sov.pdf > [as of Mar. 14, 2015].) The purpose of the
measure was "to maximize alternatives for nonserious,
nonviolent crime, and to invest the savings generated from
this act into prevention and support programs in K-12 schools,
victim services, and mental health and drug treatment."
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(Ballot Pamp., Gen. Elec. (Nov. 4, 2014), Text of Proposed
Laws, p. 70.) One of the ways the measure created savings was
by requiring misdemeanor penalties instead of felonies for
nonserious, nonviolent crimes like petty theft and drug
possession for personal use, unless the defendant has prior
convictions for specified violent crimes. (Ibid.)
Four months into its implementation, Proposition 47 had resulted
in fewer inmates in state prisons and county jails. According
to the Legislative Analysts' Office (LAO), "As of January 28,
2015, the inmate population in the state's prisons was about
113,500, or 3,600
inmates below the February 2015 cap, and slightly below the
final February 2016 cap. The expected impact of Proposition 47
on the prison population will make it easier for the state to
remain below the population cap." (LAO, The 2015-16 Budget:
Implementation of Proposition 47 (Feb. 2015), p. 10.) The LAO
report also found that Proposition 47 will likely reduce the
costs of criminal justice for counties, by freeing up jail
beds and reducing the time probation departments need to
follow prisoners after they are released. (Id. at p. 17.)
In its most recent report on the fiscal impact of Proposition
47, the LAO estimated that the savings resulting from the
implementation of Proposition 47 is approximately $100 million
more than what was estimated by the administration. (LAO, The
2016-2016 Budget: Implementation of Proposition 47 (Feb.
2016), p. 11.)
4)California Constitutional Limitations on Amending a Voter
Initiative: Because Proposition 47 was a voter initiative,
the Legislature may not amend the statute without subsequent
voter approval unless the initiative permits such amendment,
and then only upon whatever conditions the voters attached to
the Legislature's amendatory powers. (People v. Superior
Court (Pearson) (2010) 48 Cal.4th 564, 568; see also Cal.
Const., art. II, § 10, subd. (c).) The California
Constitution states, "The Legislature may amend or repeal
referendum statutes. It may amend or repeal an initiative
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statute by another statute that becomes effective only when
approved by the electors unless the initiative statute permits
amendment or repeal without their approval." (Cal. Const.,
art. II, § 10, subd. (c).) Therefore, unless the initiative
expressly authorizes the Legislature to amend, only the voters
may alter statutes created by initiative.
The purpose of California's constitutional limitation on the
Legislature's power to amend initiative statutes is to protect
the people's initiative powers by precluding the Legislature
from undoing what the people have done, without the
electorate's consent. Courts have a duty to jealously guard
the people's initiative power and, hence, to apply a liberal
construction to this power wherever it is challenged in order
that the right to resort to the initiative process is not
improperly annulled by a legislative body. (Proposition 103
Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th
1473.) Yet, despite the strict bar on the Legislature's
authority to amend initiative statutes, judicial decisions
have recognized that the Legislature is not thereby precluded
from enacting laws addressing the general subject matter of an
initiative. The Legislature remains free to address a
"related but distinct area" or a matter that an initiative
measure "does not specifically authorize or prohibit." (People
v. Kelly (2010) 47 Cal.4th 1008, 1025-1026.)
As to the Legislature's authority to amend the initiative,
Proposition 47 states: "This act shall be broadly construed
to accomplish its purposes. The provisions of this measure
may be amended by a two-thirds vote of the members of each
house of the Legislature and signed by the Governor so long as
the amendments are consistent with and further the intent of
this act. The Legislature may by majority vote amend, add, or
repeal provisions to further reduce the penalties for any of
the offenses addressed by this act." (Ballot Pamp., Gen.
Elec. (Nov. 4, 2014), Text of Proposed Laws, p. 74.)
This bill does not affect Proposition 47's misdemeanor penalties
for simple possession of drugs. Similar to the statutes that
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require specific intent to sell controlled substances which
remain felonies, this bill will require specific intent to
commit sexual assault in order to charge a defendant with a
felony. Because the bill as amended does not affect
Proposition 47, this bill does not have to go before the
voters.
5)Drug-Facilitated Sexual Assault Statistics: Although a person
may be surreptitiously drugged with Rohypnol, GHB, or ketamine
in order to incapacitate that person, it is much more common
for a person to consume these drugs voluntarily for its
intoxicating effects.
One study, funded by the National Institute of Justice, examined
the prevalence, nature, and reporting of various types of
sexual assault experienced by college students. (Krebs, et
al., The Campus Sexual Assault Study, National Institute of
Justice (Oct. 2007).) The researchers worked with two large,
public universities to collect data from over 6,800
undergraduate students (5,466 women and 1,375 men). The data
indicated that 7.8% of women were sexually assaulted when they
were incapacitated after voluntarily consuming drugs and/or
alcohol and 0.6% were sexually assaulted when they were
incapacitated after having been given a drug without their
knowledge. (Id. at p. iv; see also Section 6-1.) The study
found that the majority of the sexual assault victims that
were incapacitated reported having consumed alcohol (89%) or
being intoxicated prior to being assaulted (82%). (Id. at
Section 5.1.3.)
Another study conducted by the University of Illinois at
Chicago, funded by the U.S. Department of Justice, worked with
four clinics (Texas, California, Minnesota, and Washington
State) to study the prevalence of drugs in sexual assault
cases received by these clinics. (Negruz, et al., Estimate of
the Incidence of Drug-Facilitated Sexual Assault in the U.S,
Univ. of Illinois, Chicago (Nov. 2005).) The study used
self-reporting surveys as well as toxicological analyses of
the subjects. The drugs inquired about in the self-reporting
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survey included marijuana, cocaine, and amphetamines. These
three drugs were chosen because they are not normally given
surreptitiously. (Id. at pp. 7-8.) The toxicological analyses
tested for those three drugs, as well as other drugs that are
often considered "date rape drugs" which include Rohypnol,
GHB, ketamine, clonazepam and scopolamine. (Id. at p. 112.)
Testing positive for one of these drugs could be due to
several different reasons: valid prescription use by the
subject, recreational drug use by the subject, surreptitious
drug administration by a potential assailant, or, in the case
of GHB, endogenous levels because GHB exists naturally in the
human body. (Id. at pp. 112-113.)
Among the 144 participants, 61.8% tested positive for one of
the drugs being analyzed in the study. (Negruz, Estimate of
the Incidence of Drug-Facilitated Sexual Assault in the U.S,
supra, at p. 2.) The drugs separated out as "date rape" drugs
were found in seven subjects (4.86%), of which three had a
prescription. No one admitted to having a prescription for
GHB, or using it recreationally, and GHB was only found in
levels considered to be endogenous. (Id. at p. 113.)
However, the study does note that GHB has a short detection
time of 10-12 hours and because only four subjects reported to
the clinic within 12 hours, if any of the subjects had been
given GHB, the levels would have been undetectable. (Id. at
p. 121.) Ketamine and scopolamine were not reported to by any
of the subjects in the surveys, and were not found.
Flunitrazepam (Rohypnol) was not admitted to by anyone, but
was found in four subjects. (Id. at p. 113.) However, when
tested a second time a week later, some of these subjects
tested positive for flunitrazepam again, indicating that the
subjects are likely recreational users of the drug but did not
report it in the survey. (Id. at pp. 89, 189.) Based on
these results, the study concluded that most of the subjects
positive for these drugs had taken them by their own accord
and not received them surreptitiously. (Id. at p. 189.)
The study also evaluated whether participants truthfully
reported their drug use. The number of subjects who admitted
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to taking drugs voluntarily was 40%, as compared to the 61.8%
of subjects who tested positive for one of the analyzed drugs.
(Negruz, Estimate of the Incidence of Drug-Facilitated Sexual
Assault in the U.S, supra, at p. 190.) Researchers
hypothesized that the subjects' under-reporting of their drug
usage may be attributed to the fact that the drugs being
analyzed are illegal and a person may face prosecution for its
use, or that the subjects may have felt that that their
recreational use of illegal drugs could negatively affect the
course of a sexual assault prosecution. (Id. at pp. 16, 190.)
While drug-facilitated sexual assault is a serious problem,
these studies confirm that it occurs most often after an
individual's own recreational use of drugs, rather than
surreptitious drugging by another person. Drugs such as
Rohypnol, ketamine and GHB may be used to facilitate sexual
assault of an incapacitated person, but these are not the only
drugs that can be used, nor are they the most commonly used.
The substance that is most commonly found in sexual assault
victims is alcohol. (Krebs, The Campus Sexual Assault Study,
supra at p. 89; also see Grimes, Alcohol is by far the most
dangerous "date rape drug" (Sept. 22, 2014) The Guardian,
< http://www.theguardian.com/science/blog/2014/sep/22/alcohol-da
te-rape-drug-facilitated-sexual-assault-dfsa > [as of June 8,
2016].)
This bill targets persons who possess these drugs for
predatory purposes, rather than those who merely possess these
drugs for personal use. This will ensure that victims of these
crimes who may have consumed these drugs voluntarily prior to
being assaulted will not have to fear prosecution of a felony
when deciding to whether to report the incident.
6)Argument in Support: According to the California Police
Chiefs Association, "In November 2014, California voters
approved Proposition 47 which reclassified many crimes,
including the possession of narcotics, from felonies to
misdemeanors. By broadly reclassifying personal narcotic
possession from a felony to a misdemeanor, Proposition 47
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reduced the penalties for the possession of predatory drugs.
"SB 1182 will help keep our communities and college campuses
safer by providing law enforcement with the necessary tools to
successfully combat the possession and use of predatory
drugs."
7)Argument in Opposition: According to California Attorneys for
Criminal Justice, "Longer and harsher prison sentences for
possession of drugs runs counter to the express preference of
California voters for a shift in priorities toward violent
crime and away from punishing drug offenders with longer and
longer sentences. Moreover, the circumstance SB 1182 seeks to
criminalize, the possession of "date rape" drugs by sexual
predators who intend to use them to commit sexual assault, is
already criminalized, effectively and severely, by attempt and
sexual assault laws.
"If a prosecutor can credibly allege that a defendant has the
intent to commit a sexual assault, then the prosecutor can
combine that intent with the possession of the drugs specified
by this bill (an act in furtherance) and charge the defendant
with attempted sexual assault. Such a charge would be a
felony and carry at least as strong a sentence as the new
crime contemplated by this bill.
"SB 1182 is seeking another bite at the apple. Last year, the
legislature passed this exact bill, then entitled SB 333,
seeking to re-felonize possession of Ketamine, GHB and
Rohypnol, and it was summarily vetoed by Governor Brown, along
with several other bills seeking to create brand new crimes."
8)Related Legislation:
a) SB 333 (Galgiani) was identical to this bill. SB 333 was
vetoed.
b) AB 46 (Lackey) was substantially similar to this bill.
AB 46 was held in the Committee on Appropriations' Suspense
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file.
9)Prior Legislation:
a) SB 649 (Leno), of the 2013-2014 Legislative Session,
would have made the simple possession for personal use of
cocaine, cocaine base, heroin, opium, and other specified
narcotics, opiates and hallucinogens listed in the
controlled substance schedule an alternate
felony/misdemeanor, rather than a straight felony. SB 649
was vetoed.
b) SB 1506 (Leno), of the 2011-2012 Legislative Session,
would have made the unlawful possession of specified
controlled substances a misdemeanor. SB 1506 failed
passage on the Senate floor.
c) SB 1067 (Horton), of the 2003-2004 Legislative session,
would have excluded the drugs GHB, Rohypnol, and ketamine
from coverage by the term "nonviolent drug possession
offense" thereby making possession of these drugs
ineligible for probation and drug treatment under
Proposition 36, approved by the voters on November 7, 2000.
SB 1067 failed passage in this Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
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Alameda County District Attorney's Office
Association of Orange County Deputy Sheriffs' Association
California District Attorneys Association
California Peace Officers Association
California Police Chiefs Association
California State Sheriffs' Association
California Statewide Law Enforcement Agency
Dave Jones, Insurance Commissioner
Fraternal Order of Police
Long Beach Police Officers Association
Peace Officers Research Association of California
Sacramento County Deputy Sheriffs' Association
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Opposition
California Attorneys for Criminal Justice
Legal Services for Prisoners with Children
Analysis Prepared by:Stella Choe / PUB. S. / (916)
319-3744