BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
SB 1323 (Bates) - Controlled substances: fentanyl
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|Version: February 19, 2016 |Policy Vote: PUB. S. 7 - 0 |
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|Urgency: No |Mandate: Yes |
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|Hearing Date: April 18, 2016 |Consultant: Jolie Onodera |
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This bill meets the criteria for referral to the Suspense File.
Bill
Summary: SB 1323 would add fentanyl to the list of controlled
substances subject to a sentence enhancement of three years to
25 years for specified drug commerce convictions, based on the
weight of the substance containing the fentanyl, as specified.
Fiscal
Impact:
State prisons : Potential future increase in state costs
(General Fund) for longer terms in state prison than otherwise
would have been imposed in the absence of the proposed
sentence enhancement. Given the range of sentence enhancements
from three to 25 years, the cumulative impact of even one or
SB 1323 (Bates) Page 1 of
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two defendants over a span of several years could increase
future state costs in the hundreds of thousands of dollars.
County jails : Potential future increase in local costs (Local
Funds or General Fund*) for extended jail terms than otherwise
would have been imposed in the absence of the proposed
sentence enhancement. Costs would be dependent on the number
of defendants and the length of the sentence enhancement
imposed.
Court workload : Potential minor increase in workload (General
Fund) for separate jury trials for cases charged with the
proposed enhancement.
*Proposition 30 (2012) provides that legislation enacted after
September 30, 2012, that has an overall effect of increasing the
costs already borne by a local agency, as specified, apply to
local agencies only to the extent the State provides annual
funding for the cost increase. Although legislation creating a
new crime or revising the definition of an existing crime is
exempt from Proposition 30 state funding requirements,
legislation that changes the penalty for an existing crime is
not similarly specifically exempt. Drug commerce offenses
involving fentanyl are crimes under existing law. To the extent
the greater penalties imposed for drug commerce crimes involving
specified amounts of substances containing fentanyl are
determined to change the penalties for existing crimes, any
increase in costs to local agencies attributable to the
provisions of this legislation could potentially require annual
funding from the State.
Background: Existing law provides for specified penalties for commerce in
cocaine, cocaine base, heroin, and specified opiates, including
fentanyl, as follows:
A person who possesses for sale or purchases for
purposes of sale any of the controlled substances specified
above shall be punished by imprisonment pursuant to Penal
Code (PC) § 1170(h) for two, three, or four years. (Health
and Safety Code (HSC) § 11351, 11351.5.)
A person who transports, imports into this state, sells,
furnishes, administers, or gives away, or offers to
transport, import into this state, sell, furnish,
SB 1323 (Bates) Page 2 of
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administer, or give away, or attempts to import into this
state or transport, unless upon the written prescription of
specified persons licensed to practice in this state, any
of the controlled substances specified above shall be
punished by imprisonment pursuant to PC § 1170(h) for
three, four, or five years, or a term of three, six, or
nine years if transporting the controlled substance between
non-contiguous counties. (HSC § 11352.)
Under existing law, a person convicted of a violation of, or of
a conspiracy to violate any of the above referenced drug
commerce crimes with respect to a substance containing heroin,
cocaine, or cocaine base is subject to an additional term of
incarceration, as follows (HSC § 11370.4(a).):
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| Where the substance | Additional term: |
| exceeds: | |
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| 1 kilogram | 3 years |
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| 4 kilograms | 5 years |
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|-----------------------+---------------------|
| 10 kilograms | 10 years |
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|-----------------------+---------------------|
| 20 kilograms | 15 years |
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| 40 kilograms | 20 years |
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| 80 kilograms | 25 years |
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Proposed Law:
This bill would provide that a person convicted of a violation
of, or of a conspiracy to violate specified drug commerce crimes
with respect to a substance containing fentanyl is subject to a
sentence enhancement of three years to 25 years based on the
weight of the substance containing the fentanyl.
Staff
Comments: By adding fentanyl to the list of controlled
substances subject to a sentence enhancement based on the weight
of the substance containing fentanyl, this bill could
potentially result in longer sentences being imposed for drug
commerce crimes involving fentanyl, both to state prison and
county jail pursuant to the provisions of PC § 1170(h)(3), which
provides that sentences imposed on defendants with the following
criminal history must be served in state prison: 1) a defendant
has a prior or current felony conviction for a serious or
violent felony; 2) a defendant is required to register as a sex
offender; or 3) a defendant is convicted of a crime and as part
of the sentence an enhancement pursuant to PC § 186.11 is
imposed.
While the court may strike the additional punishment for the
enhancements, it is possible that the court may instead impose a
longer base term, thereby still resulting in greater costs than
otherwise would have been incurred under existing law.
The fiscal impact of this bill cannot be known with certainty,
as the actual impact will be dependent on numerous factors
including but not limited to judicial and prosecutorial
discretion, the criminal history of the defendant, and the
factors unique to each case. Additionally, to the extent
historical commitments under the enhancement statute already
largely reflect defendants convicted of commerce crimes
involving fentanyl, which is commonly mixed with heroin, the
impact of this bill would be limited to only those cases in
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which fentanyl was the sole controlled substance manufactured,
distributed or sold in the underlying offense.
Data from the Department of Justice indicates over 4,000
convictions in each of the past three years for the drug
commerce crimes applicable in this bill. However, data was
unavailable at the time of this analysis indicating how many
defendants additionally had a sentence enhancement imposed on
the specified convictions. Data from the CDCR reflects an
average of 70 commitments released from state prison over the
past three years under the sentence enhancement statute
specified in this bill. To the extent this bill impacts even one
or two defendants over a span of several years, given the range
of sentence enhancements from three to 25 years, the cumulative
impact of even a small number of cases would increase future
state costs in the hundreds of thousands of dollars based on the
estimated contract bed cost per case of $29,000 per inmate.
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