BILL ANALYSIS Ó
SB 1182
Page 1
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