BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 157 (Runner)
As Introduced February 12, 2009
Hearing date: April 14, 2009
Health and Safety Code
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SENTENCE ENHANCEMENTS FOR
MANUFACTURING METHAMPHETAMINE OR PCP:
THE PRESENCE OF CHILDREN, OR INJURY TO CHILDREN, DURING THE
OFFENSE
HISTORY
Source: Riverside County District Attorney
Prior Legislation: AB 233 (Cogdill) - Ch. 620, Stats. 2003
AB 3392 (Weggeland) - Ch. 871, Stats. 1996
AB 275 (Brown) - Ch. 323, Stats. 1985
AB 252 (Filante) - Ch. 3, Stats. 1985
Support: California Peace Officers' Association; California
Police Chiefs Association; San Bernardino County
Sheriff; California District Attorneys Association
Opposition:American Federation of State, County and Municipal
Employees (AFSCME),
AFL-CIO; California Attorneys for Criminal Justice
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KEY ISSUE
EXISTING LAW INCLUDES SENTENCE ENHANCEMENTS OF TWO AND FIVE
YEARS RESPECTIVELY THAT APPLY WHERE A DEFENDANT IS CONVICTED OF
METHAMPHETAMINE OR PCP MANUFACTURING IN WHICH "ANY" CHILD WAS
PRESENT OR SUFFERED GREAT BODILY INJURY IN THE COMMISSION OF THE
OFFENSE.
(CONTINUED)
SHOULD THIS ENHANCEMENT PROVIDE THAT THESE ENHANCEMENTS ARE TO BE
IMPOSED FOR EACH CHILD PRESENT (TWO YEARS) OR INJURED (FIVE YEARS)
IN SUCH AN OFFENSE?
PURPOSE
The purposes of this bill are to 1) provide that where a
defendant is convicted of manufacturing methamphetamine or PCP,
a sentence enhancement of two years shall be imposed for each
child present during the crime; and 2) provide that an
enhancement of five years shall be imposed for each child who
suffers great bodily injury in the offense.
Existing law classifies methamphetamine as a controlled
substance on Schedule II, which reflects a legislative finding
that the drug has a high potential for abuse and requires strict
limits on prescriptions. (Health and Saf. Code 11055, subd.
(d)(2).)
Existing law provides that the punishment for possession of
methamphetamine is punishable as either a misdemeanor of up to 1
year in the county jail or as a felony for 16 months, 2 or 3
years in state prison. (Health and Saf. Code 11377, subd.
(a).)
Existing law provides that the punishment for possession for
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sale of methamphetamine is 16 months, 2 or 3 years in state
prison. (Health and Saf. Code 11378.)
Existing law provides that the punishment for sale of
methamphetamine is 2, 3, or 4 years in state prison. (Health
and Saf. Code 11379, subd. (a).) The punishment for the
transporting methamphetamine for sale from one county to another
is punishable by 3, 6, or 9 years in state prison. (Health and
Saf. Code 11379, subd. (b).)
Existing law provides that a person who manufactures, compounds,
converts, produces, derives, processes, or prepares, either
directly or indirectly, by chemical extraction or independently
by means of chemical synthesis, any controlled substance,
including methamphetamine, shall be punished by imprisonment in
the state prison for 3, 5, or 7 years and a fine of up to
$50,000. (Health and Saf. Code 11379.6.)
Existing law provides that the possession of specified chemicals
with the intent to manufacture methamphetamine or phencyclidine
is a felony, punishable by imprisonment in the state prison for
2, 4, or 6 years. (Health and Saf. Code 11383.)
Existing law provides that any person convicted of the
manufacture of a controlled substance, or possession of
precursors with the intent to manufacture such a substance, in a
structure where any child under the age of 16 is present shall
be punished by an additional two years in the state prison.
(Health and Saf. Code 11379.7, subd. (a).)
Existing law provides that any person convicted of the
manufacture of a controlled substance where the commission of
the crime caused a child under the age of 16 to suffer great
bodily injury shall, in addition and consecutive to the penalty
for the new offense, receive an enhancement of five years in the
state prison. (Health and Saf. Code 11379.7, subd. (b).)
Existing law provides that any person convicted of the
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manufacture, sale, possession for sale, transportation of any
hazardous substance that is a controlled substance or a chemical
used in, or is a by-product of, the manufacture of a controlled
substance in violation of any law shall pay a penalty equal to
the amount of the actual cost incurred by the state or local
agency to remove and dispose of the hazardous substance.
(Health and Saf. Code 11374.5, subd. (b).)
Existing law provides that any person convicted of the
manufacture of a controlled substance where the commission of
the crime caused a child under the age of 16 to suffer great
bodily injury shall, in addition and consecutive to the penalty
for the new offense, receive an enhancement of five years in the
state prison. (Health and Saf. Code 11379.7, subd. (b).)
Existing law provides that any person convicted of unlawfully
manufacturing, or possessing specified precursors with the
intent to manufacture, methamphetamine or phencyclidine, when
the commission or attempted commission of the crime occurs in a
structure where any child under 16 years of age is present,
shall be punished by an additional 2 years in the state prison.
(Health and Saf. Code 11379.7, subd. (a).)
Existing law defines a structure used in the manufacture of
methamphetamine thus:
"[S]tructure" means any house, apartment building,
shop, warehouse, barn, building, vessel, railroad
car, cargo container, motor vehicle, housecar,
trailer, trailer coach, camper, mine, floating home,
or other enclosed structure capable of holding a
child and manufacturing equipment.
This bill provides that an enhancement imprisonment in the state
prison shall be imposed, as specified, for each child under 16
years of age who is present or who suffers great bodily injury.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
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crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
---------------------------
<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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decision, is unknown at the time of this writing.
This bill does appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
Senate Bill 157 would add a 2-year enhancement for
each child under the age of 16 who is present during
the commission of a crime in a structure housing a
methamphetamine laboratory and would add 5 years for
each child under the age of 16 who suffers great
bodily harm.
Currently, the penalty enhancement applies per case
rather than per child present during the commission of
a crime in a methamphetamine lab.
State courts have uniformly upheld Health and Safety
Code sections 11379.7 (a) and (b), which give only a
one-time enhancement per case . In other words, there
is only a blanket penalty enhancement regardless of
the number of children present during the commission
of a crime in a methamphetamine lab.
2. Where a Crime or Penalty Provision is Defined in Terms of the
Defendant Possessing "Any" Item or Harming "Any" Person,
"Any" Generally Means One or More, thus Allowing a Single
Conviction or Punishment Regardless of the Number of Items
Possessed or Persons Affected by the Defendant
This bill concerns a statute (Health & Saf. Code 11379.7) that
prescribes imposition of sentence enhancements where a defendant
is convicted of methamphetamine or PCP manufacturing under
circumstances where a child is present or injured in the
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commission of the offense. In particular, the statute states
that the enhancement applies where "any child under the age of
16" is present or injured in the offense. (Health & Saf. Code
11379.7, subds (a)-(b).) Courts have found the word "any" to be
ambiguous in that it can mean the singular or the plural. An
ambiguity in a criminal statute must be interpreted in favor of
the defendant. Thus, for example, a defendant who possesses
multiple items of child pornography is guilty of only one crime
if the governing statute forbids possession of "any" such items.
Applied to this bill, this interpretation of the word "any"
would appear to require that a defendant may receive a single
enhancement if any number of children is present during the
manufacturing of methamphetamine. This rule would also appear
to apply if any number of children is injured by methamphetamine
manufacturing. This bill provides that the enhancement is to be
imposed for each child who is present or injured in the offense,
rather than a single enhancement per conviction.
This issue has arisen most often in cases involving possession
of a prohibited item or object. A 1999 case explained the rule
in the context of illegal weapons:
In Kirk, the defendant [simultaneously] possessed .
. . two sawed-off weapons in violation of former
section 12020, subdivision (a). [Citation.] The
statute provided that, "Any person . . . who . . .
possesses . . . any instrument? known as a ?
sawed-off shotgun . . . is guilty of a felony."
[Citation.] The court ruled that the use of the
word "any" in conjunction with the words
"instrument" and "weapon" rather than the word "a"
created an ambiguity in the statute so that the
statute failed to provide a warning that separate
convictions would result for each weapon
simultaneously possessed.
. . . In this case [section] 4502, subdivision (a),
provides that, "Every person who, while at or
confined in any penal institution . . . possesses
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any dirk or dagger or sharp instrument . . . is
guilty of a felony . . ." (Italics added.) The use
of the word "any" in this statute, as in the statute
at issue in Kirk, persuades us defendant is subject
to only one conviction for his simultaneous
possession of three sharp wooden sticks in prison.
(People v. Rowland (1999) 75 Cal.App.4th 61, 65-66.)
A 2008 case applied the rule in a case involving child
pornography:
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People v. Bowie, supra, 72 Cal.App.3d 143 was also
relied on in Hertzig. In Bowie the defendant was
found in the possession of 11 identical blank checks.
He was charged with and convicted of 11 counts of
possession of blank checks with intent to defraud. On
appeal he claimed he should have been convicted of
only one count because his possession of the 11
identical blank checks was a single act. The statute
(former 475) stated that "[e]very person who ? has
or keeps in his possession ? any blank or unfinished
check" with the requisite intent is guilty of a
violation of former section 475. (People v. Bowie,
supra, at p. 156.) Relying on People v. Puppilo,
supra, 100 Cal.App. 559, the appellate court found
that "[a]lthough the statute refers to 'any check,'
the singular includes the plural." (People v. Bowie,
supra, at p. 156.) The appellate court rejected the
respondent's argument that there were 11 potential
victims as the controlling factor because the crime
there was based on possession, as opposed to forgery.
The court held that the defendant properly could be
convicted of only one count based on the 11 checks.
(Id. at p. 157.) People v. Manfredi (2008) 169 Cal.
App. 4th 622, 631.
SHOULD THE ENHANCEMENT PROVISIONS FOR MANUFACTURING
METHAMPHETAMINE SPECIFICALLY PROVIDE THAT A DEFENDANT SHALL
RECEIVE AN ENHANCEMENT FOR EACH CHILD EITHER PRESENT OR
SUFFERING GREAT BODILY INJURY IN THE OFFENSE, RATHER THAN A
SINGLE ENHANCEMENT PER CRIME OF CONVICTION?
3. Children Endangered by Methamphetamine Production
Much methamphetamine in California is literally home-made.
Children in residences where methamphetamine is manufactured are
subjected to toxic chemicals and the risk of injury from
explosion of the chemicals. Children raised in homes where
methamphetamine is manufactured often suffer a different form of
trauma when their parents are arrested. These children are
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often taken into state custody. Under this bill, parents who
manufacture methamphetamine would receive longer sentences than
under existing law if their children were present during
commission of the crime.
Numerous counties have programs for drug endangered children
(DEC). DEC standards have been the subject of legislation over
approximately the last decade. DEC programs seek to coordinate
the response of police agencies, prosecutors, social service
agencies and medical agencies. (Pen. Code
13879.80-13879.81.) The imposition of longer prison sentences
in methamphetamine manufacturing cases could require more
extensive services from DEC programs for children of defendants.
This bill is sponsored by the Riverside County District
Attorney. That office participates in an extensive DEC program
in Riverside County.
HOW WOULD DRUG ENDANGERED CHILDREN'S PROGRAMS BE USED AND
AFFECTED BY LONGER PRISON SENTENCES IN METHAMPHETAMINE
MANUFACTURING CASES?
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