BILL ANALYSIS �
SENATE COMMITTEE ON EDUCATION
Alan Lowenthal, Chair
2011-12 Regular Session
BILL NO: SB 1530
AUTHOR: Padilla
AMENDED: March 27, 2012
FISCAL COMM: Yes HEARING DATE: April 11, 2012
URGENCY: No CONSULTANT:Beth Graybill
SUBJECT : School employees: dismissal, suspension, and leave
of absence procedures.
SUMMARY
This bill modifies notice and hearing procedures relating to
the dismissal and suspension of certificated employees as
specified.
BACKGROUND
Current law prohibits the dismissal of a certificated
employee who has achieved permanent status except for one or
more of the following causes:
(Education Code � 44932)
1) Immoral or unprofessional conduct.
2) Commission, aiding, or advocating the commission of acts
of criminal syndicalism.
3) Dishonesty.
4) Unsatisfactory performance.
5) Evident unfitness for service.
6) Physical or mental condition unfitting him or her to
instruct or associate with children.
7) Persistent violation of or refusal to obey state laws or
regulations pertaining to schools.
8) Conviction of a felony or of any crime involving moral
turpitude.
9) Violation of the prohibition against advocating or
teaching communism with the intent to indoctrinate or
inculcate in the mind of any pupil a preference for
communism.
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Page 2
10) Knowing membership in the Communist Party.
11) Alcoholism or other drug abuse which makes the employee
unfit to instruct or associate with children.
Current law requires a governing board to notify an employee
in writing of its intention to dismiss or suspend him or her
at the expiration of 30 days unless the employee demands a
hearing. Current law prohibits a 30-day Notice of Intent to
Dismiss or Suspend (30-day Notice) from being given between
May 15 and September 15 in any year. (EC � 44934 and EC �
44936)
Existing law requires suspension and dismissal hearings to
begin within 60 days of an employee's request. The hearing
is conducted by a three-member Commission on Professional
Competence (CPC) comprised of an educator chosen by the
employee, an educator (typically an administrator) chosen by
the school district's administration, and an Administrative
Law Judge (ALJ) from the Office of Administrative Hearings.
The ALJ serves as the chair of the CPC. Specific rules apply
to the hearing process:
Members of the CPC may not be employees of the
district and must have at least five years of experience
(within the last ten) in the discipline of the employee.
Parties may not introduce testimony or evidence
relating to matters that occurred more than four years
prior to the issuances of the 30-day Notice.
The decision of the CPC is deemed to be the final
decision of the governing board. (EC � 44944)
The Legislature has established additional notice
requirements school districts must follow when seeking to
suspend or dismiss an employee for unprofessional conduct or
unsatisfactory performance. Before a governing board can
take action to issue a 30-day Notice the following must
occur:
Unprofessional Conduct : The employee must be given
advance notice of at least 45 days. The Notice of
Unprofessional Conduct must specify the nature of the
cause, list specific instances of behavior and furnish
the employee an opportunity to correct the faults and
overcome the grounds of the charge. The notice must
also include a copy of the employee's evaluation. (EC �
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Page 3
44938(a))
Unsatisfactory Performance : The employee must be
given advance notice of at least 90 days. The Notice of
Unsatisfactory Performance must specify the nature of
the performance issues, with specific instances of
behavior with "such particularity" as to furnish the
employee an opportunity to correct his or her faults and
overcome the grounds for the charge. The notice must
also include a copy of the employee's evaluation. (EC �
44938(b))
Current law authorizes the immediate suspension of a
permanent employee for specified conduct including: immoral
conduct, conviction of a felony or any crime involving moral
turpitude, incompetency due to mental disability, willful
refusal to perform regular assignments without reasonable
cause, advocating communism, or knowing membership in the
Communist Party. (EC � 44939)
Current law establishes certain crimes as "mandatory leave of
absence offenses" and requires school districts to place an
employee criminally charged of those offenses on a compulsory
leave of absence. Mandatory offenses include sex offenses
specified in EC � 44010 and offenses involving aiding or
abetting the unlawful sale, use, or exchange to minors of
specified controlled substances with the exception of
marijuana, mescaline, peyote, or tetrahydrocannabinols.
(EC � 44940 and � 44940.5)
Existing law establishes certain crimes as "optional leave of
absence offenses" and authorizes (but does not require)
school districts to place an employee charged with those
offenses on a compulsory leave of absence. These offenses
include controlled substance offenses specified in EC �
44011, a violation or attempted violation of specified
sections of the Penal Code and Health and Safety Code insofar
as these sections relate to any controlled substances except
marijuana, mescaline, peyote, or tetrahydrocannabinols. (EC
� 44940.5)
ANALYSIS
This bill :
1) Modifies suspension and dismissal procedures for the
offenses defined in the following statutes:
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a) Sexual misconduct offenses specified in EC �
44010.
b) Controlled substances offenses specified in EC
� 44011.
c) Penal Code offenses specified in PC � 11165.2
to � 11165.6 inclusive.
For the specified offenses only,
a) Removes the prohibition against issuing 30-day
Notice between May 15 and September 15.
b) Specifies that a Commission on Professional
Competence (CPC) shall consist of an administrative
law judge (ALJ) of the Office of the Administrative
Hearings. Requires the place for the hearing to be
selected by the ALJ.
c) Authorizes testimony and evidence relating to
matters that occurred more than four years prior to
the issuance of the 30-day Notice to be introduced
at a hearing.
d) Deems the decision of the ALJ to be advisory
to the governing board.
2) Makes the following changes pertaining to the suspension
or dismissal of a permanent employee for unprofessional
conduct:
a) Deletes the definition of unprofessional
conduct.
b) Eliminates the requirement to issue a 45-day
Notice of Unprofessional Conduct prior to filing a
charge with the governing board.
c) Adds unprofessional conduct to the conditions
for which a governing board may immediately suspend
a permanent employee.
3) Removes marijuana, mescaline, peyote, and
tetrahydrocannabinols as exceptions to the controlled
substance offenses for which a certificated employee may
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Page 5
be charged with a mandatory or optional leave of absence
offense.
4) Requires local agencies and school districts to be
reimbursed for costs if the Commission on State Mandates
determines that this act contains costs mandated by the
state.
STAFF COMMENTS
1) Need for the bill : According to the author, existing
dismissal statutes make it difficult for governing
boards to dismiss employees who engage in serious
misconduct. Dismissal proceedings are often long and
costly. The requirement to give an employee who engages
in unprofessional conduct 45 days to correct their
behavior is often too long. Additionally, the
prohibition against issuing a 30-day Notice after May 15
limits the ability of a school district to address
misconduct in a timely manner. The author maintains
that for cases involving sexual misconduct, drugs, or
violence against children, the restriction on historical
evidence hinders an employer's ability to build a
reasonable case or establish a pattern of the conduct.
The author maintains that because a governing board is
responsible for the safety of pupils enrolled in the
district, it should have the authority to dismiss
teachers who jeopardize that safety or otherwise engage
in conduct that harms pupils. This bill addresses two
problematic areas for employers: The suspension and
dismissal of certificated employees who engage in
unprofessional conduct and the dismissal of employees
charged with committing specified criminal offenses.
2) Causes for dismissal . Of the 11 statutory causes for
dismissal, only unprofessional conduct and
unsatisfactory performance require a preliminary notice
before a governing board can issue a 30-day Notice of
Intent to Dismiss or Suspend: The preliminary notice
requirement for these two causes is based on the notion
that an employee can (or should be able to) improve or
correct his or her conduct within the prescribed
timeframe. Specifically, issues related to
unsatisfactory performance can be remediated within 90
days while unprofessional conduct should be corrected
within a 45-day period.
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3) Unprofessional conduct . This bill eliminates the
preliminary notice requirement for unprofessional
conduct and provides specific authority for a school
district to immediately suspend an employee for this
type of conduct. In so doing, the bill would give
school districts greater authority to take swift and
decisive action to address conduct that may adversely
affect students or the school community.
The difference between the common meaning of the term
'unprofessional conduct' and the meaning of the term as
a cause for dismissal can be confusing. Case law
supports the notion that unprofessional conduct revolves
around duties and responsibilities relative to the
employment setting, such as the employee's duties and
how the employee relates to colleagues, parents, and
students, etc. The line between immoral conduct and
unprofessional conduct is not always clear. Actions
such as writing love notes to students may be considered
immoral conduct, while using profane language and
swearing at students seems to fit the category of
unprofessional conduct. Yet under existing law, an
employer wanting to suspend an employee for that
unprofessional conduct would first need to provide the
employee with a 45-day notice. When there is a single,
egregious breach of conduct, providing employers with
greater latitude to immediately implement a short
discipline (like a two-day suspension) seems to make
sense and potentially gives the employee an appropriate
"cooling off" period. Moreover, it could reduce any
inappropriate use of an "immoral conduct" charge in
order to suspend the employee. By eliminating the
one-size-fits-all remediation period, this bill allows
school districts greater flexibility to match discipline
to the offense.
Opponents argue that removing the preliminary notice
requirement raises the question of whether an employee
would be given a fair and adequate opportunity to
improve. However, employers indicate that persistent
conduct problems are typically addressed through
documentation and progressive discipline over a period
of time and argue that providing an additional 45 days
for remediation may not be productive and could, in
egregious cases, jeopardize pupil safety. Given the
Commission on Professional Competence (CPC) could
determine the extent to which an employee was given
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reasonable opportunity to correct the fault, the
question posed by this bill is whether it is in the
public interest of the State to maintain an employment
protection for educators that is not enjoyed by most
other public servants.
This bill deletes the current statutory definition of
unprofessional conduct. While case law will continue to
shape and define the types of conduct that may be
considered unprofessional, school districts and
employees should have some statutory definition to turn
to for guidance. To assist school districts in
addressing unprofessional conduct, the statutory
definition should be retained. Staff recommends the
bill be amended to the definition of "Unprofessional
conduct" currently specified in EC � 44938(c) into �
44939.
4) Special offenses - special process . The Legislature has
established high "fitness" standards for individuals who
work near and around children. The State has strong
screening procedures for employment and licensure that
help protect pupils from educators who have a criminal
background that makes them unfit for working with
children. However, proponents of this measure argue
that existing law makes it difficult to adequately
protect pupils from educators who commit harmful acts
subsequent to being hired. This bill modifies dismissal
procedures for employee who are charged with specified
criminal offenses involving sexual misconduct,
controlled substances, or actions harming or endangering
children. The specific offenses are listed in Appendix
A.
By removing exemptions that currently exist for the
unlawful sale, exchange and use of marijuana, mescaline,
peyote, or tetrahydrocannabinols with students this bill
makes those offenses "mandatory leave of absence"
offenses, which will also require notification of the
Commission on Teacher Credentialing.
5) Bifurcated hearing process . This bill establishes a
different dismissal hearing process for employees
charged with the specified criminal offenses noted
above. For these offenses, the hearing would be
conducted by an ALJ who could consider evidence and
testimony pertaining to matters that occurred more than
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four years prior to the 30-day notice and who's decision
would be advisory to the governing board.
The state's employment and credential discipline process for
teachers is based on a "jury of peers" model. Educators
constitute a majority of a commission of professional
competence; the Commission on Teacher Credentialing's
Committee of Credentials includes elementary teachers,
secondary teachers, school administrators, school board
members and public representatives. These discipline
models allow the legal issues pertaining to the removal
of an educator's job or credential to be considered in
the context of an educator's practice. While the
participation of educator specialists may be of benefit
for most dismissal cases, it is not clear that
professional competency or classroom experience would be
as relevant in matters involving criminal offenses.
Current law prohibits testimony or evidence relating to
matters that occurred more than four years prior to the
issuance of the 30-day notice from being introduced
during a hearing. Although administrative law judges
(ALJs) may on occasion ask for information that extends
beyond the four-year limit, the law prohibits a CPC from
basing a decision on charges or evidence relating to
matters that occurred more than four years prior to the
filing of the notice. (A similar four-year prohibition
applies to the scope of discovery in community college
proceedings.)
For the specified offenses, this bill makes the decision of
the ALJ advisory to a governing board. While governing
boards could theoretically move forward with a dismissal
when an ALJ recommends reinstatement, the potential for
a wrongful termination lawsuit suggests otherwise.
However, by empowering a governing board to have the
final say, this bill could have a chilling effect on
employees exercising their due process rights to a
hearing. To maintain due process, the Committee may
wish to consider amendments that would require governing
boards to follow a process similar to that specified in
Government Code � 11517 to � 11519, whereby a board
would, in rejecting the proposed decision, be required
to decide the case upon the record, including the
hearing transcript, provide a copy of the record to the
employee, and afford the employee the opportunity to
present either oral or written argument before the
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board. Given the ALJ would be required to conduct the
proceedings in accordance with Chapter 5 (commencing
with Section 11500) of Part 1 of Division 3 of Title 2
of the Government Code, it seems appropriate to require
governing boards to follow standardized procedures once
an ALJ's proposed decision is received.
6) Related and prior legislation . This bill is somewhat
similar to SB 1059 (Huff), also scheduled to hear on
April 11, 2012, which also modifies procedures relating
to the suspension and dismissal of employees.
AB 2028 (Knight). This bill, identical to SB 1059, modifies
procedures relating to the suspension, dismissal and
leave of absence of employees.
SB 355 (Huff, 2011) authorized the governing board of a
school district to evaluate and assess the performance
of certificated employees using a multiple-measures
evaluation system, authorizes school districts to make
specified employment decisions based on teacher
performance, and expands the reasons districts may
deviate from the order of seniority in terminating and
reappointing teachers, as specified. This bill failed
passage in this Committee on a 3-2 vote.
SB 955 (Huff, 2010) proposed various changes to statutes
governing the layoff and dismissal of certificated
educators, and would have given governing boards the
final say over dismissal cases. This bill was passed by
this Committee on a 5-4 vote.
SUPPORT
Alliance for a Better Community
Children Now
Democrats for Education Reform
Education Trust West
Los Angeles Mayor Antonio R. Villaraigosa
Los Angeles Unified School District
Mexican American Legal Defense and Educational Fund
Partnership for Los Angeles Schools
Santa Ana Police Department
Visalia Unified School District
Youth Policy Institute
OPPOSITION
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California Teachers Association
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Appendix A
Specified Offenses Covered by SB 1530
--------------------------------------------------------------
|Penal Code | Offense |� 44010 |
| Section | |Subsecti|
| | | on |
|-----------+-----------------------------------------+--------|
|220 |Assault to commit rape | (a) |
|-----------+-----------------------------------------+--------|
|243.4 |Sexual battery | |
|(a)(b)(c)(d| | |
|) | | |
|-----------+-----------------------------------------+--------|
|261 |Rape | |
|-----------+-----------------------------------------+--------|
|261.5 |Unlawful sexual intercourse with minor | |
| |(statutory rape) | |
|-----------+-----------------------------------------+--------|
|262 |Rape of spouse by force/fear/threat | |
|-----------+-----------------------------------------+--------|
|264.1 |Aiding and abetting rape | |
|-----------+-----------------------------------------+--------|
|266 |Entice minor female for | |
| |prostitution/etc. | |
|-----------+-----------------------------------------+--------|
|266j |Providing or transporting child under 16 | |
| |for lewd or lascivious act | |
|-----------+-----------------------------------------+--------|
|267 |Abduct minor for prostitution | |
|-----------+-----------------------------------------+--------|
|272 |(on or after 9/15/61) Contributing to | (e) |
| |the delinquency of a minor involving | |
| |lewd/lascivious conduct | |
|-----------+-----------------------------------------+--------|
|285 |Incest | (a) |
|-----------+-----------------------------------------+--------|
|286 |Sodomy | (a), |
| | | (g) |
|-----------+-----------------------------------------+--------|
|288 |Lewd or lascivious acts with child under | (a) |
| |14 years | |
|-----------+-----------------------------------------+--------|
|288.5 |Lewd or lascivious acts | (a) |
|-----------+-----------------------------------------+--------|
|288a |Oral copulation | (a), |
| | | (g) |
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|-----------+-----------------------------------------+--------|
|289 |Penetration by foreign object | (a) |
|-----------+-----------------------------------------+--------|
|290 |Registration as a sex offender and any | (j) |
| |conviction resulting in requirement to | |
| |register as a sex offender | |
|-----------+-----------------------------------------+--------|
|311(1) |Indecent exposure (after 9/7/55 but | (d) |
| |before 9/15/61) | |
|-----------+-----------------------------------------+--------|
|311(2) |(before 9/15/61) Procuring another's | (b) |
| |lewd exposure or excitation lewd | |
| |thoughts | |
|-----------+-----------------------------------------+--------|
|311.1 |Sent or brought into state for sale or | (a) |
| |distribution, matter depicting sexual | |
| |conduct by minor | |
|-----------+-----------------------------------------+--------|
|311.2 |Sending or bringing into state for sale | |
| |or distribution, matter depicting sexual | |
| |conduct by minor; transaction with minor | |
|-----------+-----------------------------------------+--------|
|311.3 |Sexual exploitation of a child | |
|-----------+-----------------------------------------+--------|
|311.4 |Employment or use of minor to perform | |
| |prohibited acts | |
|-----------+-----------------------------------------+--------|
|311.10 |Advertising for sale or distribution | |
| |obscene matter depicting a person under | |
| |the age of 18 years engaging in or | |
| |simulating sexual conduct | |
|-----------+-----------------------------------------+--------|
|311.11 |Possession or control of matter | |
| |depicting minor engaging or simulating | |
| |sexual conduct | |
|-----------+-----------------------------------------+--------|
|313.1 |Distribute harmful matter to minors | |
|-----------+-----------------------------------------+--------|
|314 |Indecent exposure (on or after 9/15/61) | (c) |
|-----------+-----------------------------------------+--------|
|647(a) |Disorderly conduct: solicit lewd act | (a) |
|-----------+-----------------------------------------+--------|
|647(d) |Disorderly conduct: loiter in or about | |
| |toilet | |
|-----------+-----------------------------------------+--------|
|647a |(Before 12/31/87) Annoy/molest children | |
|-----------+-----------------------------------------+--------|
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|647b |Loitering about adult schools; molesting | |
| |of pupils | |
|-----------+-----------------------------------------+--------|
|647(5) |(Before 9/15/61) Vagrancy, lewd: | (b) |
| |solicitation of homosexual activity | |
|-----------+-----------------------------------------+--------|
|647.6 |(After 1/1/88) Annoy/molest children | (a) |
|-----------+-----------------------------------------+--------|
|Various |Any attempt to commit any of the | (h) |
| |above-mentioned offenses | |
|-----------+-----------------------------------------+--------|
|Various |Any commission or attempt in another | (i) |
| |state or against the laws of the U.S. | |
| |which if committed in California would | |
| |have been punishable as one or more of | |
| |the above-mentioned offenses (including | |
| |PC � 290) | |
|-----------+-----------------------------------------+--------|
|W&I � 702 |(prior to 9/15/61) Lewd and lascivious | (f) |
| |conduct | |
|-----------+-----------------------------------------+--------|
|W&I � 6300 |Commitment as a mentally disordered sex | (k) |
| |offender under former article | |
| |(commencing with � 6300, repealed in | |
| |1981) | |
|-----------+-----------------------------------------+--------|
| | | |
--------------------------------------------------------------
--------------------------------------------------------------
| Health & | Offense |� 44011 |
| Safety | |Subsecti|
| Code | | on |
| Section | | |
|-----------+-----------------------------------------+--------|
|11350 |Possession of designated controlled | (a) |
| |substances | |
|-----------+-----------------------------------------+--------|
|11351 |Possession/purchase of designated | |
| |controlled substances for sale | |
|-----------+-----------------------------------------+--------|
|11351.5 |Possession of cocaine for sale | |
|-----------+-----------------------------------------+--------|
|11352 |Transportation/etc. designated | |
| |controlled substances | |
|-----------+-----------------------------------------+--------|
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|11352.1 |Dispensing or furnishing drugs without a | |
| |license | |
|-----------+-----------------------------------------+--------|
|11352.5 |Sale of heroin | |
|-----------+-----------------------------------------+--------|
|11353 |Adult induces/etc. minor to violate | |
| |controlled substance provisions | |
|-----------+-----------------------------------------+--------|
|11353.1 |Violation of 11353 by an adult near | |
| |other minors | |
|-----------+-----------------------------------------+--------|
|11353.4 |Multiple violations of 11353 by an | |
| |adult; involving minor under 14 yrs. | |
|-----------+-----------------------------------------+--------|
|11353.5 |Sale/etc. of controlled substance by | |
| |adult to a minor under 14 and near other | |
| |minors | |
|-----------+-----------------------------------------+--------|
|11354 |Minor induces/etc. another minor to | |
| |violate controlled substance prov. | |
|-----------+-----------------------------------------+--------|
|11355 |Sale/etc. of substance in lieu of | |
| |controlled substance | |
|-----------+-----------------------------------------+--------|
|11361 |Employment of minor under 14 to | |
| |transport/sell/etc. | |
|-----------+-----------------------------------------+--------|
|11366 |Open/maintain place to sell/etc. | |
| |controlled substance | |
|-----------+-----------------------------------------+--------|
|11368 |Forged or altered narcotic prescription | |
|-----------+-----------------------------------------+--------|
|11377 |Possession of controlled substance | |
|-----------+-----------------------------------------+--------|
|11378 |Possession of controlled substance for | |
| |sale | |
|-----------+-----------------------------------------+--------|
|11378.5 |Possession of phencyclidine for sale | |
|-----------+-----------------------------------------+--------|
|11379 |Transportation/etc. of controlled | |
| |substance | |
|-----------+-----------------------------------------+--------|
|11379.2 |Possession for sale, or sale of ketamine | |
|-----------+-----------------------------------------+--------|
|11379.5 |Transportation/etc. of phencyclidine | |
|-----------+-----------------------------------------+--------|
|11379.6 |Manufacture/etc. of controlled | |
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| |substances | |
|-----------+-----------------------------------------+--------|
|11379.7 |Violation of specified offenses near | |
| |child under 16 | |
|-----------+-----------------------------------------+--------|
|11379.8 |Violation of 11379.6 with specified | |
| |controlled substances | |
|-----------+-----------------------------------------+--------|
|11379.9 |Causing death or great bodily injury of | |
| |another person | |
|-----------+-----------------------------------------+--------|
|11380 |Use/etc. of minor to violate controlled | |
| |substance provisions | |
|-----------+-----------------------------------------+--------|
|11380.1 |Violation of 11380 with specified | |
| |controlled substances | |
|-----------+-----------------------------------------+--------|
|11380.5 |Furnishing/etc. minor with specified | |
| |controlled substances | |
|-----------+-----------------------------------------+--------|
|11382 |Sale/etc. of substance in lieu of | |
| |controlled substance | |
|-----------+-----------------------------------------+--------|
|11550 |Use/under the influence of controlled | |
| |substance | |
|-----------+-----------------------------------------+--------|
|Various |Any offense committed or attempted in | (b) |
| |another state or against the laws of the | |
| |U.S. which, if committed or attempted in | |
| |this state would have been punished as | |
| |one or more of the offenses above. | |
|-----------+-----------------------------------------+--------|
|11500 |(fmr section) Unlawful possession of a | (c) |
| |controlled substance | |
|-----------+-----------------------------------------+--------|
|11500.5 |(fmr section) Unlawful possession of | |
| |controlled substance for sale | |
|-----------+-----------------------------------------+--------|
|11501 |(fmr section) Unlawful transportation of | |
| |controlled substance | |
|-----------+-----------------------------------------+--------|
|11502, |(fmr section) Inducing minor's violation | |
|11502.1 |of controlled substance law | |
|-----------+-----------------------------------------+--------|
|11503 |(fmr section) Unlawful sale, transport, | |
| |etc. of controlled substance | |
|-----------+-----------------------------------------+--------|
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|11557 |(fmr section) Operating or maintaining | |
| |place for dispensing controlled | |
| |substance | |
|-----------+-----------------------------------------+--------|
|11715 |(fmr section) Forging or altering | |
| |prescription | |
|-----------+-----------------------------------------+--------|
|11721 |(fmr section) Prohibited use or being | |
| |under influence of controlled substance | |
|-----------+-----------------------------------------+--------|
|Various |Any attempt to commit any of the | (d) |
| |offenses above | |
--------------------------------------------------------------
--------------------------------------------------------------
|Penal Code | Harm to Children Offense |
| Section | |
--------------------------------------------------------------
|11165.2 |Child neglect |
--------------------------------------------------------------
|11165.3 |Willful harming or injuring a child or |
| |endangering the person or health of a child |
--------------------------------------------------------------
|11165.4 |Unlawful corporal punishment or injury |
--------------------------------------------------------------
|11165.5 |Abuse or neglect in out-of-home care |
|-----------+--------------------------------------------------|
|11165.6 |Child abuse or neglect |
| | |
--------------------------------------------------------------