Senate BillNo. 1323


Introduced by Senators Bates and Huff

(Coauthors: Senators Nguyen and Stone)

(Coauthors: Assembly Members Brough and Wagner)

February 19, 2016


An act to amend Sections 11370.4 and 11372 of the Health and Safety Code, relating to controlled substances.

LEGISLATIVE COUNSEL’S DIGEST

SB 1323, as introduced, Bates. Controlled substances: fentanyl.

Existing law classifies controlled substances into 5 schedules and places the greatest restrictions and penalties on the use of those substances placed in Schedule I. The drug fentanyl is classified in Schedule II. Existing law prohibits a person from possessing for sale or purchasing for purposes of sale, specified controlled substances, including fentanyl, and provides for imprisonment in a county jail for 2, 3, or 4 years for a violation of this provision. Existing law also imposes an additional term upon a person who is convicted of a violation of, or of a conspiracy to violate, specified provisions of law with respect to a substance containing heroin, cocaine base, and cocaine, if the substance exceeds a specified weight. Existing law imposes a greater additional term under these provisions depending on the weight of the substance.

This bill would make the provisions imposing an additional term, as described above, applicable with respect to a substance containing fentanyl. By imposing additional incarceration costs on local agencies, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 11370.4 of the Health and Safety Code
2 is amended to read:

3

11370.4.  

(a)  begin deleteAny end deletebegin insert(1)end insertbegin insertend insertbegin insertA end insertperson convicted of a violation of, or
4of a conspiracy to violate, Section 11351, 11351.5, or 11352 with
5respect to a substance containing heroin,begin insert fentanyl,end insert cocaine base as
6specified in paragraph (1) of subdivision (f) of Section 11054, or
7cocaine as specified in paragraph (6) of subdivision (b) of Section
811055 shall receive an additional term as follows:

begin delete

9(1)

end delete

10begin insert(end insertbegin insertA)end insertbegin insert end insert Where the substance exceeds one kilogram by weight, the
11person shall receive an additional term of three years.

begin delete

12(2)

end delete

13begin insert(end insertbegin insertB) end insert Where the substance exceeds four kilograms by weight,
14the person shall receive an additional term of five years.

begin delete

15(3)

end delete

16begin insert(end insertbegin insertC) end insert Where the substance exceeds 10 kilograms by weight, the
17person shall receive an additional term of 10 years.

begin delete

18(4)

end delete

19begin insert(end insertbegin insertD) end insert Where the substance exceeds 20 kilograms by weight, the
20person shall receive an additional term of 15 years.

begin delete

21(5)

end delete

22begin insert(end insertbegin insertE) end insert Where the substance exceeds 40 kilograms by weight, the
23person shall receive an additional term of 20 years.

begin delete

24(6)

end delete

25begin insert(end insertbegin insertF) end insert Where the substance exceeds 80 kilograms by weight, the
26person shall receive an additional term of 25 years.

begin delete

27The

end delete

28begin insert(2)end insertbegin insertend insertbegin insertTheend insert conspiracy enhancements provided for in this
29subdivision shall not be imposed unless the trier of fact finds that
30the defendant conspirator was substantially involved in the
31planning, direction, execution, or financing of the underlying
32offense.

P3    1(b)  begin deleteAny end deletebegin insert(1)end insertbegin insertend insertbegin insertA end insertperson convicted of a violation of, or of
2conspiracy to violate, Section 11378, 11378.5, 11379, or 11379.5
3with respect to a substance containing methamphetamine,
4amphetamine, phencyclidine (PCP) and its analogs shall receive
5an additional term as follows:

begin delete

6(1)

end delete

7begin insert(end insertbegin insertA) end insert Where the substance exceeds one kilogram by weight, or
830 liters by liquid volume, the person shall receive an additional
9term of three years.

begin delete

10(2)

end delete

11begin insert(end insertbegin insertB) end insert Where the substance exceeds four kilograms by weight, or
12100 liters by liquid volume, the person shall receive an additional
13term of five years.

begin delete

14(3)

end delete

15begin insert(end insertbegin insertC) end insert Where the substance exceeds 10 kilograms by weight, or
16200 liters by liquid volume, the person shall receive an additional
17term of 10 years.

begin delete

18(4)

end delete

19begin insert(end insertbegin insertD) end insert Where the substance exceeds 20 kilograms by weight, or
20400 liters by liquid volume, the person shall receive an additional
21term of 15 years.

begin delete

22In

end delete

23begin insert(2)end insertbegin insertend insertbegin insertInend insert computing the quantities involved in this subdivision,
24plant or vegetable material seized shall not be included.

begin delete

25The

end delete

26begin insert(3)end insertbegin insertend insertbegin insertTheend insert conspiracy enhancements provided for in this
27subdivision shall not be imposed unless the trier of fact finds that
28the defendant conspirator was substantially involved in the
29planning, direction, execution, or financing of the underlying
30offense.

31(c)  The additional terms provided in this section shall not be
32imposed unless the allegation that the weight of the substance
33containing heroin,begin insert fentanyl,end insert cocaine base as specified in paragraph
34(1) of subdivision (f) of Section 11054, cocaine as specified in
35paragraph (6) of subdivision (b) of Section 11055,
36methamphetamine, amphetamine, or phencyclidine (PCP) and its
37analogs exceeds the amounts provided in this section is charged
38in the accusatory pleading and admitted or found to be true by the
39trier of fact.

P4    1(d)  The additional terms provided in this section shall be in
2addition to any other punishment provided by law.

3(e)  Notwithstanding any otherbegin delete provision ofend delete law, the court may
4strike the additional punishment for the enhancements provided
5in this section if it determines that there are circumstances in
6mitigation of the additional punishment and states on the record
7its reasons for striking the additional punishment.

8

SEC. 2.  

Section 11372 of the Health and Safety Code is
9amended to read:

10

11372.  

(a)  In addition to the term of imprisonment provided
11by law for persons convicted of violating Section 11350, 11351,
1211351.5, 11352, 11353, 11355, 11359, 11360, or 11361, the trial
13court may impose a fine not exceeding twenty thousand dollars
14($20,000) for each offense. In no event shall a fine be levied in
15lieu of or in substitution for the term of imprisonment provided
16by law for any of these offenses.

17(b)  Any person receiving an additional term pursuant to
18begin insert subparagraph (A) ofend insert paragraph (1) of subdivision (a) of Section
1911370.4, may, in addition, be fined by an amount not exceeding
20one million dollars ($1,000,000) for each offense.

21(c)  Any person receiving an additional term pursuant to
22begin delete paragraph (2)end deletebegin insert subparagraph (B) of paragraph (1)end insert of subdivision
23(a) of Section 11370.4, may, in addition, be fined by an amount
24not to exceed four million dollars ($4,000,000) for each offense.

25(d)  Any person receiving an additional term pursuant to
26begin delete paragraph (3)end deletebegin insert subparagraph (C) of paragraph (1)end insert of subdivision
27(a) of Section 11370.4, may, in addition, be fined by an amount
28not to exceed eight million dollars ($8,000,000) for each offense.

29(e)  The court shall make a finding, prior to the imposition of
30the fines authorized by subdivisions (b) to (e), inclusive, that there
31is a reasonable expectation that the fine, or a substantial portion
32thereof, could be collected within a reasonable period of time,
33taking into consideration the defendant’s income, earning capacity,
34and financial resources.

35

SEC. 3.  

No reimbursement is required by this act pursuant to
36Section 6 of Article XIII B of the California Constitution because
37the only costs that may be incurred by a local agency or school
38district will be incurred because this act creates a new crime or
39infraction, eliminates a crime or infraction, or changes the penalty
40for a crime or infraction, within the meaning of Section 17556 of
P5    1the Government Code, or changes the definition of a crime within
2the meaning of Section 6 of Article XIII B of the California
3Constitution.



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