BILL ANALYSIS
AB 640
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Date of Hearing: April 14, 2009
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 640 (Huber) - As Amended: April 13, 2009
SUMMARY : Provides that any person granted probation for the
sale of methamphetamine shall serve at least 180 days in the
county jail. Specifically, this bill :
1)Requires that any person convicted of the sale of
methamphetamine, who is eligible for and granted probation,
shall be confined in a county jail for at least 180 days, as a
condition of probation.
2)Requires no less than the minimum 180-day sentence to be
imposed unless the court finds that in the interest of justice
not to impose that sentence, and states on the circumstances
indicating why justice would best be served by not imposing
that minimum jail sentence.
EXISTING LAW :
1)Provides that any person convicted of the sale of cocaine,
heroin, or PCP who is eligible for probation, and is granted
probation shall, as a condition thereof, be confined in a
county jail for at least 180 days. The imposition of the
minimum 180 day sentence shall be imposed in every case where
probation has been granted, except that the court may, in an
unusual case where the interest of justice would best be
served, absolve a person from spending the 180 day sentence in
the county jail if the court specifies on the record and
enters into the minutes, the circumstances indicating that the
interests of justice would best be served by that disposition.
(Penal Code Section 1203.076.)
2)Provides that any person who transports, sells, furnishes, or
gives away specified controlled substances, including
methamphetamine, shall be punished by imprisonment state
prison for two, three, or four years. [Health and Safety Code
Section 11379(a).]
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3)Provides that a person who possesses for sale specified
controlled substances, including methamphetamine, shall be
punished by imprisonment in the state prison for 16 months, 2
or 3 years. (Health and Safety Code Section 11378.)
4)Provides that the possession of specified controlled
substances, including methamphetamine, shall be punished by
imprisonment in a county jail for a term not to exceed one
year, or by imprisonment in the state prison for 16months, 2
or 3 years. [Health and Safety Code Section [11377(a).]
5)Provides that any person who transports, sells, furnishes, or
gives away specified controlled substances, including heroin
or cocaine shall be punished by imprisonment state prison for
three, four, or five years. [Health and Safety Code Section
11352(a).]
6)Provides that a person who possesses for sale specified
controlled substances, including heroin and cocaine, shall be
punished by imprisonment in the state prison for two, three,
or four years. (Health and Safety Code Section 11351.)
7)Provides that the possession of specified controlled
substances, including heroin or cocaine, shall be punished by
imprisonment in the state prison for 16months, 2 or 3 years.
[Health and Safety Code Section [11350(a).]
8)Classifies controlled substances in five schedules according
to their danger and potential for abuse. Schedule I
controlled substances have the greatest restrictions and
penalties, including prohibiting the prescribing of a Schedule
I controlled substance. (HSC Sections 11054 to 11058.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, " We must put to
an end the ability of drug dealers to return directly back to
our streets after being convicted of selling methamphetamine.
The longer we put drug pushers behind bars, the longer drug
addicts and drug infested communities will have to cleanup and
break the cycle of drug abuse.
AB 640
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Despite continuous efforts to combat the methamphetamine drug
use epidemic, its use in California is rampant throughout the
state. The Department of Alcohol and Drug Programs (ADP) has
reported that methamphetamine use is now the most commonly
reported primary drug problem in the state, based on data
collected from all publicly monitored treatment providers.
Nationwide, Californians make up 40% of all methamphetamine
treatment admissions.
2)Comments : Penal Code Section 1203.076 provides that any
person convicted of the sale of cocaine, heroin, or PCP who is
eligible for and granted probation shall serve at least 180
days in the county jail, except in unusual circumstances.
Existing law does not have a similar provision relating to the
sale of methamphetamine. Therefore, a person convicted of the
sale of methamphetamine could be granted probation and not
serve one day in jail. This bill requires that persons
convicted of the sale of methamphetamine serve at least 180
days in the county jail. However, in order to maintain the
distinction between methamphetamine and cocaine or heroin,
this bill should be amended require 120 days incarceration,
instead of 180 days, to reflect the fact that methamphetamine
is a Schedule II (HSC Section 11055) controlled substance and
cocaine and heroin are Schedule I (HSC Section 11054)
controlled substances, and the fact that the punishment for
the sale of methamphetamine is two, three, or four years and
the punishment for the sale of cocaine or heroin is three,
four, or five years. If this bill were amended to 120 days,
as opposed to 180 days, the distinction between the different
Schedules and existing penalties relating to methamphetamine
and cocaine and heroin would be maintained.
3)Argument in Support : According to the California State
Sheriffs' Association , "Existing law provides that any person
who is eligible for and granted probation, be confined in the
county jail for at least 180 days. AB 640 would add the sale
of methamphetamine to the provision requiring 180 days in the
county jail as a condition of probation. Methamphetamine use
and distribution has devastating social on public safety
consequences. It is imperative that equal penalties be
applied for the distribution of this product in addition to
that of cocaine and heroin as included in current statute."
4)Argument in Opposition : According to the California Attorneys
for Criminal Justice , "First, we would note that it is
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important to allow judges to have broad discretion under the
law to determine an appropriate sentence in any given case, as
they can factor such things as the nature of the offense and
the background and character of each individual defendant. To
create a presumptive minimum jail term as set forth in AB 640
will only serve to needlessly fetter such judicial discretion
and to further erode the trust we bestow on our independent
judiciary.
"Second, we would also note that the California prison and local
jail systems are currently in a crisis mode regarding
overcrowding. The California prison system is facing federal
intervention and a reduction in its budget given California's
fiscal crisis. The prison population is more than double our
prison capacity. Jail populations are only growing and taxing
local county governments. Given this reality and the urgent
need to remedy this major crisis in California's criminal
justice system, we believe it is particularly inappropriate to
pass legislation which would unnecessarily add to California's
already overcrowded and over-burdened prison and county jail
systems."
5)Related Legislation : AB 858 (Gilmore) contains a provision
which would also require any person granted probation for the
sale of methamphetamine to serve a minimum 120 days in the
county jail. AB 858 is scheduled to be heard by this
Committee today.
6)Prior Legislation : AB 441 (Parra), of the 2007-08 Legislative
Session, would have required any person granted probation for
the sale of methamphetamine to serve a minimum 120 days in the
county jail. AB 441 was held in the Senate Public Safety
Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association
California Peace Officers' Association
California Police Chiefs Association
California State Sheriffs' Association
Peace Officer Research Association of California
Opposition
AB 640
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California Attorneys for Criminal Justice
Legal Services for Prisoners with Children
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
319-3744