SB 1010, as amended, Mitchell. Cocaine base: penalties.
Existing law provides that every person who possesses for sale or purchases for purposes of sale cocaine base is subject to imprisonment in the state prison for a period of 3, 4, or 5 years.
This bill instead would provide that every person who possesses for sale or purchases for purposes of sale cocaine base is subject to imprisonment in the state prison for 2, 3, or 4 years.
Existing law generally provides that the interest of any registered owner of a boat, airplane, or any vehicle, except as specified, that has been used to facilitate the manufacture of, or possession for sale or sale of, 14.25 grams or more of cocaine base or 28.5 grams or more of cocaine is subject to forfeiture, as specified.
This bill would revise that provision to instead make property that has been used to facilitate the manufacture of, or possession for sale or sale of, 28.5 grams or more of cocaine base or cocaine subject to forfeiture.
Existing law, except in unusual cases, prohibits granting probation or suspending a sentence for persons convicted of specified crimes relating to controlled substances, including possessing for sale a substance containing 57 grams or more of a substance containing cocaine, 14.25 gramsbegin delete ofend deletebegin insert orend insert more of cocaine base, or 57 grams or more of a substance containing at least 5 grams of cocaine base, and transporting or importing for sale, selling, or offering to sell cocaine base.
This bill would delete those provisions and would instead prohibit, except in unusual cases, granting probation or suspending a sentence for persons convicted of possessing for sale or selling a substance containing 28.5 grams or more of cocaine base or 57 grams or more of a substance containing at least 5 grams of cocaine or cocaine base.
By making additional persons eligible for probation, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.
The people of the State of California do enact as follows:
This act shall be known, and may be cited, as the
2California Fair Sentencing Act.
(a) The Legislature finds and declares that cocaine
4hydrochloride (powder cocaine) and cocaine base (crack cocaine)
5are two forms of the same drug, the effects of which on the human
6body are so similar that to mete out unequal punishment for the
7same crime (e.g., possession for sale of a particular form of
8cocaine), is wholly and cruelly unjust.
9(b) It is the intent of the Legislature in enacting this act to
10provide that for the purposes of determining appropriate penalties
11for crimes relating to cocaine hydrochloride and cocaine base,
12including, but not limited to, the crime of possession, possession
P3 1for sale, or transportation
for sale, cocaine hydrochloride and
2cocaine base shall be treated in an identical manner.
Section 11351.5 of the Health and Safety Code is
4amended to read:
Except as otherwise provided in this division, every
6person who possesses for sale or purchases for purposes of sale
7cocaine base, which is specified in paragraph (1) of subdivision
8(f) of Section 11054, shall be punished by imprisonment pursuant
9to subdivision (h) of Section 1170 of the Penal Code for a period
10of two, three, or four years.
Section 11470 of the Health and Safety Code is
12amended to read:
The following are subject to forfeiture:
14(a) All controlled substances which have been manufactured,
15distributed, dispensed, or acquired in violation of this division.
16(b) All raw materials, products, and equipment of any kind
17which are used, or intended for use, in manufacturing,
18compounding, processing, delivering, importing, or exporting any
19controlled substance in violation of this division.
20(c) All property except real property or a boat, airplane, or any
21vehicle which is used, or intended for use, as a container for
22property described in subdivision (a) or (b).
23(d) All books, records, and research products and materials,
24including formulas, microfilm, tapes, and data which are used, or
25intended for use, in violation of this division.
26(e) The interest of any registered owner of a boat, airplane, or
27any vehicle other than an implement of husbandry, as defined in
28Section 36000 of the Vehicle Code, which has been used as an
29instrument to facilitate the manufacture of, or possession for sale
30or sale of 14.25 grams or more of heroin, or a substance containing
3114.25 grams or more of heroin, or 14.25 grams or more of a
32substance containing heroin, or 28.5 grams or more of Schedule I
33controlled substances except marijuana, peyote, or psilocybin; 10
34pounds dry weight or more of marijuana, peyote, or psilocybin;
35or 28.5 grams or
more of cocaine, as specified in paragraph (6) of
36subdivision (b) of Section 11055, cocaine base as specified in
37paragraph (1) of subdivision (f) of Section 11054, or
38methamphetamine; or a substance containing 28.5 grams or more
39of cocaine, as specified in paragraph (6) of subdivision (b) of
40Section 11055, cocaine base as specified in paragraph (1) of
P4 1subdivision (f) of Section 11054, or methamphetamine; or 57 grams
2or more of a substance containing cocaine, as specified in paragraph
3(6) of subdivision (b) of Section 11055, cocaine base as specified
4in paragraph (1) of subdivision (f) of Section 11054, or
5methamphetamine; or 28.5 grams or more of Schedule II controlled
6substances. No interest in a vehicle which may be lawfully driven
7on the highway with a class C, class M1, or class M2 license, as
8prescribed in Section 12804.9 of the Vehicle Code, may be
9forfeited under this subdivision if there is a
community property
10interest in the vehicle by a person other than the defendant and the
11vehicle is the sole class C, class M1, or class M2 vehicle available
12to the defendant’s immediate family.
13(f) All moneys, negotiable instruments, securities, or other things
14of value furnished or intended to be furnished by any person in
15exchange for a controlled substance, all proceeds traceable to such
16an exchange, and all moneys, negotiable instruments, or securities
17used or intended to be used to facilitate any violation of Section
1811351, 11351.5, 11352, 11355, 11359, 11360, 11378, 11378.5,
1911379, 11379.5, 11379.6, 11380, 11382, or 11383 of this code, or
20Section 182 of the Penal Code, or a felony violation of Section
2111366.8 of this code, insofar as the offense involves manufacture,
22sale, possession for sale, offer for sale, or offer to manufacture, or
23
conspiracy to commit at least one of those offenses, if the
24exchange, violation, or other conduct which is the basis for the
25forfeiture occurred within five years of the seizure of the property,
26or the filing of a petition under this chapter, or the issuance of an
27order of forfeiture of the property, whichever comes first.
28(g) The real property of any property owner who is convicted
29of violating Section 11366, 11366.5, or 11366.6 with respect to
30that property. However, property which is used as a family
31residence or for other lawful purposes, or which is owned by two
32or more persons, one of whom had no knowledge of its unlawful
33use, shall not be subject to forfeiture.
34(h) (1) Subject to the requirements of Section 11488.5 and
35except as further limited by
this subdivision to protect innocent
36parties who claim a property interest acquired from a defendant,
37all right, title, and interest in any personal property described in
38this section shall vest in the state upon commission of the act giving
39rise to forfeiture under this chapter, if the state or local
40governmental entity proves a violation of Section 11351, 11351.5,
P5 111352, 11355, 11359, 11360, 11378, 11378.5, 11379, 11379.5,
211379.6, 11380, 11382, or 11383 of this code, or Section 182 of
3the Penal Code, or a felony violation of Section 11366.8 of this
4code, insofar as the offense involves the manufacture, sale,
5possession for sale, offer for sale, offer to manufacture, or
6conspiracy to commit at least one of those offenses, in accordance
7with the burden of proof set forth in paragraph (1) of subdivision
8(i) of Section 11488.4 or, in the case of cash or negotiable
9instruments in excess of twenty-five
thousand dollars ($25,000),
10paragraph (4) of subdivision (i) of Section 11488.4.
11(2) The operation of the special vesting rule established by this
12subdivision shall be limited to circumstances where its application
13will not defeat the claim of any person, including a bona fide
14purchaser or encumbrancer who, pursuant to Section 11488.5,
1511488.6, or 11489, claims an interest in the property seized,
16
notwithstanding that the interest in the property being claimed was
17acquired from a defendant whose property interest would otherwise
18have been subject to divestment pursuant to this subdivision.
Section 1203.073 of the Penal Code is amended to
20read:
(a) A person convicted of a felony specified in
22subdivision (b) may be granted probation only in an unusual case
23where the interests of justice would best be served. When probation
24is granted in such a case, the court shall specify on the record and
25shall enter in the minutes the circumstances indicating that the
26interests of justice would best be served by such a disposition.
27(b) Except as provided in subdivision (a), probation shall not
28be granted to, nor shall the execution or imposition of sentence be
29suspended for, any of the following persons:
30(1) Any person who is convicted of
violating Section 11351 or
3111351.5 of the Health and Safety Code by possessing for sale, or
32Section 11352 of the Health and Safety Code by selling, a
33substance containing 28.5 grams or more of cocaine as specified
34in paragraph (6) of subdivision (b) of Section 11055 of, or cocaine
35base as specified in paragraph (1) of subdivision (f) of Section
3611054 of, the Health and Safety Code, or 57 grams or more of a
37substance containing at least five grams of cocaine as specified in
38paragraph (6) of subdivision (b) of Section 11055 of, or cocaine
39base as specified in paragraph (1) of subdivision (f) of Section
4011054 of, the Health and Safety Code.
P6 1(2) Any person who is convicted of violating Section 11378 of
2the Health and Safety Code by possessing for sale, or Section
311379 of the Health and Safety Code by selling a substance
4containing 28.5 grams or
more of methamphetamine or 57 grams
5or more of a substance containing methamphetamine.
6(3) Any person who is convicted of violating subdivision (a) of
7Section 11379.6 of the Health and Safety Code, except those who
8manufacture phencyclidine, or who is convicted of an act which
9is punishable under subdivision (b) of Section 11379.6 of the
10Health and Safety Code, except those who offer to perform an act
11which aids in the manufacture of phencyclidine.
12(4) Except as otherwise provided in Section 1203.07, any person
13who is convicted of violating Section 11353 or 11380 of the Health
14and Safety Code by using, soliciting, inducing, encouraging, or
15intimidating a minor to manufacture, compound, or sell heroin,
16cocaine base as specified in paragraph (1) of subdivision (f) of
17Section 11054
of the Health and Safety Code, cocaine as specified
18in paragraph (6) of subdivision (b) of Section 11055 of the Health
19and Safety Code, or methamphetamine.
20(5) Any person convicted of violating Section 11379.6, 11382,
21or 11383 of the Health and Safety Code with respect to
22methamphetamine, if he or she has one or more prior convictions
23for a violation of Section 11378, 11379, 11379.6, 11380, 11382,
24or 11383begin insert of the Health and Safety Codeend insert with respect to
25methamphetamine.
26(c) As used in this section, the term “manufacture” refers to the
27act of any person who manufactures, compounds, converts,
28produces, derives, processes, or prepares, either directly or
29indirectly by chemical extraction
or independently by means of
30chemical synthesis.
31(d) The existence of any previous conviction or fact which would
32make a person ineligible for probation under this section shall be
33alleged in the information or indictment, and either admitted by
34the defendant in open court, or found to be true by the jury trying
35the issue of guilt or by the court where guilt is established by a
36plea of guilty or nolo contendere or by trial by the court sitting
37without a jury.
No reimbursement is required by this act pursuant to
39Section 6 of Article XIII B of the California Constitution because
40the only costs that may be incurred by a local agency or school
P7 1district will be incurred because this act creates a new crime or
2infraction, eliminates a crime or infraction, or changes the penalty
3for a crime or infraction, within the meaning of Section 17556 of
4the Government Code, or changes the definition of a crime within
5the meaning of Section 6 of Article XIII B of the California
6Constitution.
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