BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 721 (Bradford)
As Introduced: February 21, 2013
Hearing date: June 11, 2013
Health and Safety Code
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TRANSPORTATION OF A CONTROLLED SUBSTANCE
HISTORY
Source: California Attorneys for Criminal Justice
Prior Legislation: None
Support: American Civil Liberties Union; California Public
Defenders Association; Californians for Safety and
Justice; Friends Committee on Legislation of
California; Los Angeles Regional Reentry Partnership;
Drug Policy Alliance
Opposition:California District Attorneys Association; California
Narcotics Officers' Association; California Police
Chiefs Association
Assembly Floor Vote: Ayes 42 - Noes 32
KEY ISSUE
SHOULD TRANSPORTATION OF A CONTROLLED SUBSTANCE BE DEFINED TO MEAN
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TRANSPORTATION WITH INTENT TO SELL?
PURPOSE
The purpose of this bill is to provide that "transportation" of
a controlled substance shall be defined to mean transportation
with intent to sell.
Existing law provides that every person who transports, imports
into the state, sells, furnishes, administers, or gives away, or
who offers or attempts to do such acts, as to cocaine, cocaine
base, or heroin, or any controlled substance which is a narcotic
drug, without a written prescription from a specified, licensed
health care professional is guilty of a felony, punishable
pursuant to Penal Code Section 1170, subdivision (h), by
imprisonment for three, four, or five years and a fine of up to
$10,000. (Health & Saf. Code � 11352, subd. (a).)
Existing law provides that every person who transports, imports
into the state, sells, furnishes, administers, or gives away, or
who offers or attempts do such acts, as to methamphetamine or a
specified non-narcotic controlled substance, without a written
prescription from a specified, licensed health care professional
is guilty of a felony, punishable pursuant to Penal Code Section
1170, subdivision (h), by imprisonment for two, three, or four
years and a fine of up to $10,000. (Health & Saf. Code �
11379, subd. (a).)
Existing law provides that every person who transports, imports
into the state, sells, furnishes, administers, or gives away, or
who offers or attempts to do such acts, as to phencyclidine
(PCP) is guilty of a felony, punishable by imprisonment pursuant
to Penal Code Section 1170, subdivision (h), for three, four, or
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five years and a fine of up to $10,000. (Health & Saf. Code �
11379.5, subd. (a).)
Existing law states that any person who transports for sale a
specified controlled substance from one county to another
noncontiguous county is guilty of a felony, punishable pursuant
to Penal Code Section 1170, subdivision (h), by imprisonment for
three, six, or nine years and a fine of up to $10,000. (Health
& Saf. Code � 11352, subds. (b) and 11379, subd. (b).
This bill provides that transportation of specified controlled
substances shall be defined as transportation with intent to
sell.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
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difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
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is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for this Bill
According to the author:
Current law makes it a felony for any person to
import, distribute or transport drugs. The statute
applies to individuals who are either in possession of
the drugs with the intent to sell, or involved in a
drug trafficking enterprise.
However, prosecutors are also using this statute to
prosecute individuals who are in possession of drugs
for only personal use, and who are not in any way
involved in a drug trafficking enterprise. As a
result, drug users who are not involved in drug
trafficking are finding themselves charged with TWO
crimes for simply being in possession of drugs.
California's courts have ruled that this
double-charging practice is permitted under current
law because the "plain meaning" of the term
"transportation" used in the Health and Safety Code
can be interpreted to apply to ANY type of movement -
even walking down the street - and ANY amount of
drugs, even if the evidence shows the drugs are for
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personal use and there is no evidence that the person
is involved in drug trafficking. The courts made
clear that the Legislature would need to clarify the
statute to avoid double-charging.
2. Background on Transportation of a Controlled Substance -
Aiding and Abetting Liability if the Defendant Transported
Drugs for the Actual Seller
A person may be convicted of transportation of a controlled
substance (drug) if the substance is minimally moved, regardless
of the amount of the amount of the controlled substance or
intent of the possessor. "Transportation of a controlled
substance is established by simply carrying or conveying a
usable quantity of a controlled substance with knowledge of its
presence and illegal character. Neither this nor any other
court has ever required that the length of travel exceed minimal
movement." (People v. Emmal (1998) 68 Cal. App. 4th 1313,
1316.)
The statutory term "transportation" does not imply an intent to
transfer possession and, thus, the statute does not exclude
transportation of contraband possessed only for personal use.
Further, although this initially appears illogical,
transportation of a controlled substance does not necessarily
include possession of it. Dominion and control over a
controlled substance establishes legal possession, regardless of
whether or not one physically holds or carries it. One need not
have control over a controlled substance in order to knowingly
transport it. (People v. Rogers (1971) 5 Cal.3d 129, 134-137;
People v. Eastman (1993) 13 Cal App 4th 668, 674-678.)
This bill would require that a person transporting a controlled
substance have the intent to sell the controlled substance in
order to be convicted of the felony of transportation of a
controlled substance, eliminating the possibility of a person
transporting a small amount of a controlled substance for
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personal use of being convicted of felony transportation.<1>
However, the bill does not eliminate felony penalties for
possession of a controlled substance, per se, if the person
physically possessed or had control over the drug.
3. SACPA (Substance Abuse and Crime Prevention Act - Proposition
36 of the 2000 General Election - One who Transports a Drug
for Personal use is Guilty of Non-Violent Drug Possession and
Eligible for Drug Treatment on Probation
SACPA - the Substance Abuse and Crime Prevention Act - requires
that defendants be offered drug treatment on probation, without
incarceration, if the defendant committed a non-violent drug
possession offense. Non-violent drug possession includes
"transportation for personal use." (Pen. Code � 1210.1, subd.
(a); People v. Harris (2009) 171 Cal.App.4th 1488, 1496.)
As there is presently no crime of transportation for personal
use, the issue of whether a defendant convicted of drug
transportation is eligible for treatment under SACPA must be
determined by a special jury finding or by the court at
sentencing. (People v. Harris, supra, 171 Cal.App.4th at p.
1496-1499.) As SACPA involves a reduction in penalty, the
defendant bears the burden of proving that he or she transported
a drug for personal use, not sale or distribution. (People v.
Barasa (2002) 103 Cal.App.4th 287, 292-297.) Upon enactment of
this bill, a conviction for transportation necessarily involves
the intent to sell and excludes the defendant from SACPA.
Conversely, a person who moved a controlled substance, but
intended to personally use the drug would clearly be eligible
for treatment under SACPA, unless otherwise excluded.
This bill appears to not prevent convictions for drug commerce
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<1> If the person transporting the drugs has the intent to
assist another person in drug commerce, the person transporting
the drugs is guilty of drug commerce as an aider and abettor,
regardless of whether or not he or she physically possessed or
otherwise controlled the drug.
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if a defendant's possession or transportation of a drug aided
and abetted sale or possession for sale of the drug by the
actual perpetrator. A person is guilty as an aider and abettor
if he or she shared the intent of the actual perpetrator of the
crime and the person did any act that assisted or encouraged the
perpetrator in the commission of the crime. (People v. Campbell
(1994) 25 Cal.App.4th 402, 411-414.) A person can be guilty as
an aider and abettor of drug commerce even where he or she did
not have control over the drugs involved in the offense.
Further, where a person aids and abets another in committing a
crime, the aider and abettor is guilty of any crime reasonably
foreseeable from the actual perpetrator's conduct.<2> For
example, where a person transports drugs for a drug seller, and
the person transporting the drugs intentionally aids the seller
in committing drug commerce, the person transporting the drugs
is guilty of drug sales and any crime reasonably foreseeable in
connection with drug sales, regardless of whether or not the
person intended to personally sell the drugs.
4. Attempts and Offers to Transport a Controlled Substance
This bill provides that "transportation" of a controlled
substance shall be deemed to mean transportation with intent to
sell. The bill does not specifically change the definition of
an offer or attempt to transport a controlled substance. As
such, courts would need to determine whether a charge of an
attempt or an offer to transport a controlled substance includes
an element that the defendant intended sell the controlled
substance. Courts would first look the plain meaning of the
words of the statute. If the meaning of the statute is not
clear from the statutory terms, the courts would then determine
the intent of the Legislature. It could be argued that the
Legislature intended that transporting, offering to transport or
attempting to transport a controlled substance must involve an
intent to sell, as it would be illogical for the Legislature to
create a more harsh statute for offering or attempting to
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<2> 1 Witkin & Epstein, Intro. to Crimes, (3d Ed. 2000), �
78-82.)
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transport a drug than for actually transporting a drug, as
offering and attempting to commit a crime is arguably less
egregious than the actual commission of the offense. On the
other hand, it could be argued that the Legislature could have
simply included the phrase "with intent to sell" in connection
with attempts and offers to transport a controlled substance.
That is, the specification of an element of intent to sell as to
transportation, and the exclusion of such specification as to
attempts and offers to transport, could be argued as
establishing that the Legislature only intended intent to sell
as an element of actual transportation.<3>
Committee members might wish to inquire of the author whether
the application of this bill to attempts and offers to transport
a controlled substance should be clarified. If the author's
intent is to require that offers and attempts to transport a
controlled substance should be for purposes of sale, it is
suggested that the bill specifically so state. Perhaps the
statute would be most easily read and understood if "transport"
is defined in a separate paragraph to mean to transport with
intent to sell. As such, actual transportation, an offer to
transport and an attempt to transport would each involve an
intent to sell the controlled substance.
5. Argument in Support
The California Attorneys for Criminal Justice argue in support:
An individual who "transports" a drug, or who "offers
to transport" a drug, is punished under the same
statute that applies to drug sellers. For example,
one who is alleged to have transported cocaine is
punished in Health and Safety Code � 11352, which also
punishes one who sells cocaine.
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<3> 1 Witkin & Epstein, Cal. Crim. Law, Intro. to Crimes, (3rd
Ed. 2000) �� 17-33.)
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One would reasonably assume that because transporting
a drug is punished in the same statute that punishes
sale of the same drug, "transportation" means
transporting the drug for purposes of sale.
Unfortunately, a divided California Supreme Court held
otherwise. (People v. Rogers (1971) 5 Cal.3d 129.)
In Rogers, a narrow majority held that because the
word "transport" had not been modified to clearly
provide that the person transporting the drug was
doing so with the intent to sell, "transport" meant
any movement of the drug. Subsequent judicial
decisions [have found] that "transport" includes
walking or bicycling while in possession of a drug.
(See, People v. Ormiston (2003) 105 Cal.App.4th 676
[walking]; People v. LaCross (2001) 91 Cal.App.4th 182
[riding a bike].)
Further, the controlling decisions make clear that
"transporting" does not require any extended or long
movement. Hence, walking down the block, or from an
individual's front door to a neighbor's house will
suffice to punish an individual for "transporting" the
drug - with the same penalties imposed on one who
sells drug. In his dissent from that California
Supreme Court decision, Justice Mosk deemed that
interpretation of this Legislature's statutes "unjust"
and "absurd." (People v. Rogers, supra, 5 Cal.3d 129,
144.)
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AB 721 will correct the unwarranted interpretation
that punishes an individual much more harshly if he is
arrested walking down the street in possession of a
small amount of illegal drugs than an individual who
is arrested with the exact same quantity of drugs,
but who is just sitting on a bench. AB 721 will
provide that an individual may be punished for
"transporting" an illegal drug only if he or she is
transporting that drug for purposes of sale. AB 721
simply corrects the "unjust" and "absurd" result
foreseen long ago by Justice Mosk, and provides that
similarly situated individuals should be treated
similarly by the law.
6. Argument in Opposition
The California District Attorneys Association argues in
opposition:
The California District Attorneys Association must
regretfully oppose AB 721. This bill would limit
application of the offense of transporting specified
controlled substances to situations in which the
defendant also had the intent to sell a controlled
substance.
The controlled substances transportation offense being
restricted by this bill is a valuable tool in
narcotics enforcement. It allows for an enhanced
charge where the defendant is caught in a situation
that might not qualify as a sales offense, but where
the defendant is a known dealer or mule. Further,
conviction of the offense triggers a three-year
enhancement if the defendant is later convicted of
transportation or sales.
The transportation of controlled substances carries a
greater risk than simple possession. Defendants may
be armed to protect the drugs or they may be using the
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drug while transporting it.
Making this charge more difficult to prove, which is
accomplished by requiring the intent to sell, will
hinder enforcement of drug trafficking and jeopardize
public safety.
There is no supportable need to limit the People's
ability to charge and prove this offense, especially
when the lesser offenses of possession and possession
for sale are on the books.
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