BILL ANALYSIS                                                                                                                                                                                                    



          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  







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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,  








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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).):



           --------------------------------------------- 
          |  Where the substance  |  Additional term:   |
          |       exceeds:        |                     |
          |                       |                     |
          |                       |                     |
          |-----------------------+---------------------|
          |      1 kilogram       |       3 years       |
          |                       |                     |
          |                       |                     |
          |-----------------------+---------------------|
          |      4 kilograms      |       5 years       |
          |                       |                     |
          |                       |                     |
          |-----------------------+---------------------|
          |     10 kilograms      |      10 years       |
          |                       |                     |
          |                       |                     |
          |-----------------------+---------------------|
          |     20 kilograms      |      15 years       |
          |                       |                     |
          |                       |                     |
          |-----------------------+---------------------|
          |     40 kilograms      |      20 years       |
          |                       |                     |
          |                       |                     |
          |-----------------------+---------------------|








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          |     80 kilograms      |      25 years       |
          |                       |                     |
          |                       |                     |
          |                       |                     |
           --------------------------------------------- 


          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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