BILL ANALYSIS
AB 2272
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Date of Hearing: April 23, 2002
Counsel: Fredericka McGee
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Carl Washington, Chair
AB 2272 (Cogdill) - As Amended: April 1, 2002
VOTE ONLY
SUMMARY : Increases the penalty for the unlawful extraction of
ephedrine or other similar controlled substances, as specified.
Specifically, this bill :
1)Creates a new felony for any person who unlawfully extracts
ephedrin, pseudoephedrine, phenylpropanolamine, or their salts
and isomers or anything containing these substances punishable
by three, five or seven years in state prison and a fine up to
$50,000.
2)Defines "unlawful extraction" as when a mixture containing
ephedrine, pseudophedrine, or phenylpropanolamine is combined
with a liquid solvent.
3)Creates a new penalty enhancement of two years when an adult
causes a fire during the unlawful manufacture or extraction of
a controlled substance containing ephedrin, pseudoephedrine,
or phenylpropanolamine.
4)Increases the penalty enhancement from two years to five years
when a child under the age of 16 is present during the
manufacture or where they possess specified precursors and
have the intent to manufacture methamphetamine or
phencyclidine.
5)Makes technical and clarifying changes to the definition of
"reducing agent."
6)Creates a new strict liability felony offense, punishable by
two, four or six years in state prison for possession of more
that one-half pound of ephedrine or pseudoephedrine. No
intent to manufacture a controlled substance is required.
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EXISTING LAW :
1)Classifies methamphetamine as a Class II controlled substance.
[Health and Safety Code (HSC) Section 11055(d)(2).]
2)Regulates the sale of ephedrine and ephedrine-like chemicals
and requires reports of many transactions involving these
chemicals, particularly large-scale transactions. (HSC
Section 11100.)
3)Prohibits retail distributors from selling over-the-counter
ephedrine products in an amount in excess of three packages or
nine grams. [HSC Section 11100(g)(3).]
4)Provides that violation of ephedrine weight/volume sales
restrictions is a misdemeanor, punishable by up to six months
in the county jail and/or a maximum fine of $1,000. [HSC
Section 11100(g)(4).]
5)Provides that any 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 is
guilty of a felony, punishable by imprisonment in the state
prison for three, five or seven years. (HSC Section 11379.6.)
6)Provides that any person who possesses specified chemicals
with the intent to manufacture a controlled substance is
guilty of a felony punished by imprisonment in the state
prison for two, four or six years. (HSC Section 11383.)
7)Provides that any person convicted of the manufacture of a
controlled substance in a structure where any child under the
age of 16 is present shall be punished by an additional and
consecutive two years in the state prison. [HSC Section
11379.7(a).]
8)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. [HSC Section 11379.7(b).]
FISCAL EFFECT : Unknown
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COMMENTS :
1)Author's Statement : According to the author,
"[m]ethamphetamine production has become an epidemic in
California. Currently, over 80% of the methamphetamine
produced in the United States comes from California. This
bill will target the labs that are supplying the overwhelming
majority of methamphetamine manufactured in the United
States."
2)Background : California has taken a number of steps to combat
methamphetamine production and trafficking. For example, the
Department of Justice (DOJ) has established the California
Methamphetamine Strategy (CALMS), administered by the DOJ's
Bureau of Narcotics Enforcement. CALMS agents perform a
variety of tasks, many of which involve assistance to local
law enforcement agencies.
The 2001-02 budget includes an additional $30 million for the
"War on Methamphetamine" in California's Central Valley ($15
million one-time, and $15 million ongoing). In addition,
there was additional General Fund support of $10 million to
backfill for the loss of federal funds for the CALMS program
administered by DOJ. The 1999-00 Budget Act appropriated
$300,000 to the Office of Criminal Justice Planning (OCJP) to
fund administrative support for the Central Valley
Methamphetamine Task Force. OCJP supported this task force in
order to further its designation as a High Intensity Drug
Trafficking Area (HIDTA) by the federal Office of National
Drug Control Policy. Designation as a HIDTA makes the task
force eligible to receive additional federal funds and
resources for its drug enforcement activities. HIDTA's area
consists of Fresno, Kern, Kings, Madera, Merced, Sacramento,
San Joaquin, Stanislaus, and Tulare Counties. During the 2001
federal fiscal year (October 2000 through September 2001), the
Central Valley HIDTA is expected to receive $1.5 million in
federal funds to combat methamphetamine trafficking.
3)Phenylpropanolamine : The Food and Drug Administration (FDA)
is taking steps to remove phenylpropanolamine (PPA) from all
drug products and has requested that all drug companies
discontinue marketing products containing PPA. In addition,
the FDA has issued a public health advisory concerning PPA
hydrochloride. This drug is an ingredient used in many
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over-the-counter and prescription cough and cold medications
as a decongestant and in over-the-counter weight loss
products. Recently, the FDA's Nonprescription Drugs Advisory
Committee determined that there is an association between PPA
and strokes and recommended that PPA not be considered safe
for over-the-counter use. On November 6, 2000, the FDA asked
firms that market pharmaceutical or drug products containing
PPA to voluntarily discontinue marketing them, and also
alerted consumers to the risks associated with the use of
products containing PPA.
4)Extracting Ephedrine : A typical ephedrine tablet may contain
50 milligrams of ephedrine and 150 milligrams of inert tablet
filler-binder. The ephedrine content is 25%. The ephedrine
can be quickly, easily and economically extracted from the
tablets and separated from the inert and frequently insoluble
tablet filler-binder using a small amount of solvent.
The ephedrine bases may also be extracted from plant material.
First, powdered Ma Huang can be extracted with cold benzene
that contains diluted sodium carbonate. The benzene extract
can be extracted with dilutehydrochloric acid and the acid
solution of the alkaloids clarified. After adding enough
solid potassium carbonate to the acid solution, the alkaloids
can then be extracted with chloroform. This solution is then
concentrated, dried over sodium sulfate, and evaporated to
dryness.
5)Methamphetamine Precursor Substances : There are five basic
steps to manufacturing methamphetamine. First, ephedrine
extraction occurs when ephedrine is mixed with wood or methyl
alcohol and then poured through a filter to extract the "gunk"
- the sugars and starches. Second, red phosphorus and iodine
are added to the ephedrine. Third, the mixture is heated
resulting in a mixture which is very acidic so a base, such as
Red Devil lye or Drain-O, is added. Fourth, an organic
solvent, such as paint thinner, toluene, Coleman fuel or
lighter fluid, is added. Fifth, hydrochloric gas is bubbled
through the mixture. This method of methamphetamine
manufacture is used in 99% of the cases in Sacramento and 90%
of the cases in California. Under this method, ephedrine or
pseudoephedrine is an immediate precursor to methamphetamine.
[ People v. Pierson (2001) 86 Cal. App. 4th 983, 985.]
Ephedrine and pseudoephedrine are used in over-the-counter
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medications for asthma (ephedrine) and as nasal decongestants
(pseudoephedrine.) Ephedrine and pseudoephedrine are not
controlled substances and are derived from the ephedra plant,
also known as "Ma Huang" and used in China for medicinal
purposes for thousands of years. Ephedrine is metabolized to
norephedrine, which is responsible for the central nervous
system stimulating effects of the drug. In 1995, the FDA
released an adverse event report on products containing
ephedrine alkaloids. The report revealed adverse reactions to
ephedrine such as heart attacks, strokes, paranoid psychosis,
vomiting, fever, palpitations, convulsions and comas.
According to information available on the Internet, ephedrine, a
chemical from which methamphetamine can be produced, can
easily be extracted from certain over-the-counter cold and flu
medications. Generally, ephedrine products contain about 30
milligrams of ephedrine per dose. Approximately 30 grams of
ephedrine can be extracted from 1,000 pills, enough to
manufacture one-half to three-quarters ounce of pure
methamphetamine.
6)Is a New Felony for Unlawful Extraction of Ephedrine
Necessary ? This bill provides that the unlawful extraction
begins when the ephedrine, pseudoephedrine,
phenylpropanolamine or their salt or isomers are mixed with a
liquid solvent. A liquid solvent is also used to extract
ephedrine from plant material. As a result, a person
interested in extracting ephedrine for a lawful purpose could
still be guilty of the new felony proposed in this bill. As
extracting ephedrine as the first step in manufacturing
methamphetamine is a violation of HSC Section 11379.6, a
person with the intent to manufacture methamphetamine can be
prosecuted under this statute. An intent to manufacture
methamphetamine must be shown in order to be prosecuted under
HSC Section 11379.6. The conduct proscribed by this section
encompasses the initial and intermediate steps carried out to
process a controlled substance. In other words, the statute
makes it unlawful to engage in the chemical synthesis of a
substance as one part of the process of manufacturing a
controlled substance. [ People v. Coria (1999) 21 Cal. 4th
868, 874.]
In order to be guilty of the crime of manufacturing a controlled
substance, it is not necessary that the process of
manufacturing be completed. Rather, the crime is committed
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when a person knowingly participates in the initial or
intermediate steps carried out to process a controlled
substance. Thus, it is unlawful for a person to engage in the
synthesizing, processing, or preparing a chemical used in the
manufacture of a controlled substance even if the chemical is
not itself a controlled substance provided the person knows
that the chemical is to be used in the manufacturing of a
controlled substance.
The felony penalty for the manufacture of methamphetamine is
three, five or seven years in state prison. Is it necessary
to create a new crime for extracting ephedrine for that same
unlawful purpose (e.g., manufacturing methamphetamine) when
that criminal behavior is already sanctioned under HSC Section
11379.6?
7)Manufacture of Controlled Substances in Structures Where a
Child is Present : HSC Section 11379.7 provides for a two-year
sentence enhancement for individuals convicted of
manufacturing methamphetamine or of possessing specified
chemicals with the intent to manufacture while in a structure
where "any child under 16 years of age is present." This bill
increases that penalty to five years. The policy for the
enhancement is to prevent children from being exposed to
harmful controlled substances. Where a child is injured the
enhancement is increased to five years. Further, Penal Code
Section 12022.7(d) provides an additional enhancement of four,
five or six years in state prison where a child under the age
of five suffers great bodily injury during the commission of a
felony (e.g., the manufacture or intent to manufacture
methamphetamine). This bill would remove the rational
distinction between the penalty for exposure to a child versus
an actual injury to a child. Is it appropriate to change this
policy relative to enhancements.
8)Should Possession of More than One-Half Pound of Ephedrine
Become a Strict Liability Offense ? If enacted, this bill does
not require a prosecutor to prove that a defendant had the
intent to manufacture methamphetamine if he or she is in
possession of more than one-half pound of ephedrine. However,
if the person is instead in possession of any amount of
methylamine and phenylacetone, it will still be necessary for
a prosecutor to prove intent to manufacture methamphetamine.
[HSC Section 11383(a).] Is it appropriate to require proof of
intent to manufacture when in possession of two
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methamphetamine precursors and not to require the same proof
when in possession of one (ephedrine)?
Generally, the existence of a mens rea (wrongful intent)
combined with acting out a certain behavior is the rule,
rather than the exception, in American criminal jurisprudence.
(Id at p. 876.) The crimes of methamphetamine manufacturing
and possession with the intent to manufacture are not strict
liability offenses. Current law provides that merely engaging
in chemical synthesis is not enough; the person must have
knowledge of the facts which make the chemical synthesis
unlawful (i.e., that methamphetamine is being manufactured).
(Id. at p. 880.)
There are some exceptions to the mens rea requirement; however,
these statutes are regulatory in nature and usually involve
light penalties. [Id at p. 876, citing People v. Vogel (1956)
46 Cal. 2d 798, 801, fn.2.] The purpose of this type of
statute is regulation rather than punishment or correction.
Unlike the regulatory statutes that require no wrongful
intent, the penalties for the manufacturing or possession with
the intent to manufacture are felony offenses with significant
terms of imprisonment. As proposed, this bill requires a
felony term of two, four or six years in state prison.
9)Related Legislation : AB 239 (Runner) was held on the Assembly
Appropriations Committee's Suspense File. AB 565 (Cardoza)
failed passage in the Senate Committee on Public Safety. AB
576 (Cogdill) and AB 1375 (Ashburn) failed passage in the
Assembly Committee on Public Safety.
10)Prior Legislation : AB 162 (Runner) Chapter 798, Statutes of
1998; SB 1691 (Rainey), of the 1997-98 Legislative Session,
was vetoed.
REGISTERED SUPPORT / OPPOSITION :
Support
Attorney General Bill Lockyer
California District Attorneys Association
California Organization of Police and Sheriffs
California Narcotic Officers' Association
California Peace Officers' Association
San Diego County Sheriff's Department
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Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
Friends Committee on Legislation of California
Analysis Prepared by : Fredericka McGee / PUB. S. / (916)
319-3744