BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:   June 29, 2016


                        ASSEMBLY COMMITTEE ON APPROPRIATIONS


                               Lorena Gonzalez, Chair


          SB 1182  
          (Galgiani) - As Introduced February 18, 2016


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          |Policy       |Public Safety                  |Vote:|7 - 0        |
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          Urgency:  No  State Mandated Local Program:  YesReimbursable:   
          No


          SUMMARY:


          This bill makes the possession of specified controlled  
          substances (gamma hydroxybutyric acid (GHB), ketamine or  
          flunitrazepam, also known as Rohypnol), with the intent to  
          commit sexual assault, as defined, a felony punishable in the  
          state prison for 16 months or two or three years.


          FISCAL EFFECT:


          Potentially moderate ongoing out-year costs in excess of  








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          $150,000 (GF) for increased state prison commitments.  According  
          to the California Department of Corrections (CDCR), the  
          contracted out-of-state annual bed rate is $29,000.  In 2013-14,  
          there were 22 state prison commitments for rape convictions  
          where the victim was prevented from resisting by an intoxicating  
          substance, and an unknown number were prevented.   If intent to  
          commit sexual assault, with any of the three substances listed  
          were proven for three individuals per year, the cost to CDCR  
          would be $87,000 (GF) the first year, $174,000 (GF) the second  
          year, etc. for this new crime. 


          COMMENTS:


          1)Purpose.  According to the author, "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.   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.

          2)Background.  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. 


            Current 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  








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            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 is a felony.


            Also under current law, 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. Current law also 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.


            "Club Drugs."  Ketamine, GHB, and flunitrazepam are commonly  
            designated as "club drugs" due to their association with  
            raves, nightclubs, concerts, and parties. Other drugs included  
            in this designation are MDMA (ecstasy), methamphetamine, and  
            cocaine.  Club drugs became popular in the 1990s and tend to  
            be used by youth and young adults to heighten mood, increase  
            extraversion and physical energy, and intensify the senses. 


            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 their intoxicating effects.  

            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 whether to report the incident.  








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          3)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."

          4)Support.  According to the California Police Chiefs  
            Association, ""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."

          5)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  








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            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. 

          6)Prior Legislation:   
            
             a)   AB 46 (Lackey), held on this committee's Suspense file,  
               is nearly identical to this bill. 

             b)   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.  In his message, the Governor cited the  
               realignment legislation as the proper vehicle to examine  
               the current sentencing structure.

             c)   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.

             d)   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 Assembly Public Safety.









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          Analysis Prepared by:Pedro R. Reyes / APPR. / (916)  
          319-2081