BILL ANALYSIS Ó
SB 649
Page 1
Date of Hearing: June 11, 2013
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 649 (Leno) - As Amended: June 3, 2013
SUMMARY : Makes the simple possession for personal use of
cocaine, cocaine base, heroin, opium, and other specified
narcotics, opiates and hallucinogens listed in the controlled
substance schedule an alternate felony/misdemeanor ("wobbler"),
rather than a straight felony.
EXISTING LAW :
1)Provides that the possession of cocaine, cocaine base, heroin,
opium, and other specified controlled substances listed in the
controlled substance schedule, unless upon the prescription of
a physician, dentist, podiatrist, or veterinarian licensed to
practice in this state, shall be punished by imprisonment in a
county jail for 16 months, two, or three years. [Health and
Safety Code (HSC) Section 11350(a).]
2)Makes the possession of methamphetamine and other specified
controlled substances listed in the controlled substance
schedule, unless upon the prescription of a physician,
dentist, podiatrist, or veterinarian licensed to practice in
this state, punishable by imprisonment in a county for a term
not to exceed one year, or by imprisonment in a county jail
for 16 months, two, or three years. [HSC Section 11377(a).]
3)Provides that every person that transports, imports into the
state, sells, furnishes, administers, or gives away, or offers
to transport, import into the state, sell, furnish, or give
away, or attempts to import into this state or transport
cocaine, cocaine base, or heroin, or other specified
controlled substances listed in the controlled substance
schedule, without a written prescription from a licensed
physician, dentist, podiatrist, or veterinarian shall be
punished by imprisonment for three, four, or five years. [HSC
Section 11352(a).]
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4)Provides that every that transports, imports into the state,
sells, furnishes, administers, or gives away, or offers to
transport, import into the state, sell, furnish, or give away,
or attempts to import into this state or transport
methamphetamine, or other specified controlled substances
listed in the controlled substance schedule, without a written
prescription from a licensed physician, dentist, podiatrist,
or veterinarian shall be punished by imprisonment for two,
three, or four years. [HSC Section 11379(a).]
5)Provides that every person that transports, imports into the
state, sells, furnishes, administers, or gives away, or offers
to transport, import into the state, sell, furnish, or give
away, or attempts to import into this state or transport PCP
without a written prescription from a licensed physician,
dentist, podiatrist, or veterinarian shall be punished by
imprisonment for three, four, or five years. [HSC Section
11379.5(a).]
6)States that any person that transports for sale any controlled
substance, as specified, within this state from one county to
another noncontiguous county shall be punished by imprisonment
for three, six, or nine years. [HSC Sections 11352(b) and
11379(b).]
7)Provides that the possession for the purpose of sale of
cocaine or heroin is punishable by two, three, or four years.
(HSC Section 11351.)
8)States that the possession for the purpose of sale of cocaine
base is punishable by three, four, or five years. (HSC
Section 11351.5.)
9)Provides that the possession for sale of methamphetamine is
punishable by imprisonment for 16 months, two or three years.
(HSC Section 11378.)
10)States that the possession for the purpose of sale of PCP is
punishable by imprisonment for three, four, or five years.
(HSC Section 11378.5.)
11)Classifies controlled substances in five schedules according
to their danger and potential for abuse. Schedule I
controlled substances have the greatest restrictions and
penalties, including prohibiting the prescribing of a Schedule
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I controlled substance. (HSC Sections 11054 to 11058.)
FISCAL EFFECT : None
COMMENTS :
1)Author's Statement : According to the author, "SB 649 will
allow counties to preserve scarce resources by providing
greater flexibility in drug sentencing at the local level.
"Specifically, SB 649 would give local prosecuting attorneys the
discretion to charge the simple possession of drugs as either
a misdemeanor or a felony, as they deem appropriate. SB 649
would also give judges the discretion to deem a non-violent
drug possession offense to be either a misdemeanor or felony
after consideration of the defendant's record.
"The revised penalty is already the case for methamphetamine and
does not apply to anyone involved in selling, manufacturing or
possessing drugs for sale.
"Thirteen other states, the federal government, and the District
of Columbia punish simple drug possession as a misdemeanor.
SB 649 will take a more moderate approach by allowing local
prosecutors to charge in a manner that best suits their
community's needs. There is no mandatory sentence under SB
649.
"The LAO estimates that the discretion authorized by SB 649 will
allow local governments to save as much as $160 million
statewide each year. In addition, recent polling indicates
that, across party lines, 75% of California voters favor
alternatives to incarceration for low-level drug possession.
"SB 649 will provide counties with an additional tool to help
alleviate overcrowding in our local jails, ease pressure on
California's court system, and save millions of dollars
needlessly spend on incarceration of low-level offenders which
would be better spent on effective and cost efficient programs
that are proven to break the cycle of addiction and reduce
recidivism."
2)Arguments in Support :
a) The American Civil Liberties Union states, "SB 649 will
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revise the penalty for drug possession for personal use
from a straight felony to an alternate felony/misdemeanor
thereby giving local prosecutors a new option to charge
simple possession as a misdemeanor.
"SB 649 will give counties more flexibility to manage
criminal justice obligations and more control over the
limited resources, including jail space, court resources
and drug treatment. The Legislative Analyst's Office
estimates that if all personal drug possession were charged
as a misdemeanor, counties would save about $159 million
annually statewide. Savings will accrue to local
governments to be spent according to local priorities,
including drug treatment, mental health, and/or law
enforcement costs.
"SB 649 will hold law-breakers accountable. A misdemeanor
conviction carries a penalty of up to one year of in the
county jail and a period of probation (typically three
years). Participation in drug treatment and/or other
programs may be ordered as a condition of probation.
Statutory eligibility for drug courts, Proposition 36
diversion, and other drug treatment diversion programs will
not be affected, and SB 649 will provide counties greater
flexibility to fund these programs, after years of
devastating cuts.
"SB 649 will help reduce recidivism by removing barriers to
reentry. Those convicted of misdemeanor drug possession
would avoid a drug felony conviction, which comes with
significant barriers to employment, housing, and even
public assistance that work against successful reentry.
Additionally, changing the penalty for possession to ask a
court to reduce the conviction on their record to a
misdemeanor after they have successfully completed
probation."
b) The California Public Defenders Association believes,
"SB 649 will revise the state penalty for drug possession
of the drugs listed in subdivision (e) of section 1054 of
the Health and Safety Code that are possessed only for
personal use, from a felony to an alternate
misdemeanor/felony (a 'wobbler'), thereby giving local
prosecutors a new option to charge a simple possession of
such substances as a misdemeanor. Existing law allows for
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this prosecutorial discretion for the possession of
methamphetamine, as well as for man other controlled
substances. The legislation will simply make that same
option available to prosecutors for a wider range of
controlled substances, while not changing the penalties for
sale, transportation, manufacture, or possession for sale.
"Making simple possession of drugs including cocaine and
opiates a wobbler will help alleviate overcrowding of
county jails, since pursuant to AB 109, the public safety
realignment law, simple possession of controlled substances
is punishable by commitment to county jail. A person
charged with simple possession of two rocks of cocaine with
a net gram weight of .03 grams currently faces county jail
for up to three years, regardless of prior conviction
record. A person faced with that same charge, who is
ineligible for court diversion, and precluded from 1170(h)
sentencing, could still face a potential state prison.
Additionally, and perhaps just as important, regardless of
the custodial sentence imposed, having such a felony
conviction can result in loss of licensing, housing and
food aid benefits and educational opportunities. As
employment opportunities dwindle for the person saddled
with a felony conviction for simple drug possession, the
community into which such an offender is ultimately
released bears a greater burden of having such a person
with limited opportunities living among them."
3)Arguments in Opposition:
a) The California District Attorneys Association argues,
"SB 649 would allow for a reduced penalty for the
possession of specified controlled substances.
"Undoubtedly, drugs such as heroin and cocaine are highly
addictive. Most would concede that drug addictions destroy
lives and families, and are damaging to society.
Minimizing the consequences of addictive and destructive
behavior does not make it less addictive or destructive.
"Additionally this bill would undoubtedly result in more
offenders being sentenced to county jail. Counties are
already dealing with the overwhelming impacts of criminal
justice realignment and this bill will exacerbate the
overcrowding problems that plague our county jails."
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4)The California Narcotics Officers' Association and the
California Police Chiefs Association believe, "Senate Bill 649
of all drug possession offenses from felonies to wobblers.
The unintended consequences of this bill, particularly when
viewed against the backdrop of recently enacted realignment
legislation, are particularly serious.
"It should be noted at the outset that under Proposition 36, the
overwhelming number of persons convicted of simple possession
offenses are not incarcerated at all. Instead, they are sent
to a Proposition 36 treatment program. If they successfully
complete treatment, then the underlying possession convicted
can be expunged and deemed never to have occurred. The
current conviction status is what motivates the person to
seriously engage in their treatment process, in order that
they might expect that conviction after successful treatment.
"The reduction of all of these drug possession offenses to
wobblers serves as a disincentive for entering a treatment
program. Since most county jails lack the capacity to
incarcerate misdemeanants, at all, persons convicted of
misdemeanor possession offenses will be able to simply decline
to enter Proposition 36 treatment program with little concern
about accountability.
"The prospect of persons convicted of drug possession offenses
declining treatment, being outside the scope of realignment
post-release supervision, has grave public safety
consequences. The reality is that many property crimes are
attributable to drug addicts engaging in those crimes to
obtain an income stream to feed their habits. The unintended
consequence of Senate Bill 649 will be to discourage persons
from obtaining treatment and effectively remove them from any
oversight or supervision."
5)Prior Legislation : SB 1506 of the 2012 Legislative Session
made the unlawful possession of specified controlled
substances a misdemeanor. SB 1506 failed passage on the
Senate floor.
REGISTERED SUPPORT / OPPOSITION :
Support
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American Civil Liberties Union (Co-Sponsor)
California Attorneys for Criminal Justice (Co-Sponsor)
California Public Defenders Association (Co-Sponsor)
California Public Defenders Association (Co-Sponsor)
California State Conference of the NAACP (Co-Sponsor)
Californians for Safety and Justice (Co-Sponsor)
Drug Policy Alliance (Co-Sponsor)
Friends Committee on Legislation (Co-Sponsor)
William C. Velasquez Institute (Co-Sponsor)
A New PATH
National Organization for Reform of Marijuana Laws (NORML), San
Diego Chapter
A New Way of Life Reentry Project
Advancement Project
All of Us or None
Alternatives to Incarceration of Tulare
Amity Foundation
California Association of Alcohol and Drug Program Executives
Asian Law
Broken No More/GRASP
Bay Area Addiction Research and Treatment (BAART)
California Conference of Bar Associations
California Opioid Maintenance Providers
California Partnership
California Partnership
California Society of Addiction Medicine
Californians for Safety and Justice
Center for Living and Learning
Center on Juvenile and Criminal Justice
Courage Campaign
East Bay Community law Center
Ella Baker Center for human Rights
FACTS Education Fund
Greenlining Institute
HealthRight360
Homeless Healthcare Los Angeles
Honorable Harlan G. Grossman, Retired, Contra Costa County
Superior Court
Honorable James P. Gray, Retired, Orange County Superior Court
Human Rights Watch
Justice Not Jails
Labor/Community Strategy Center and Community Rights Campaign
Law Enforcement Against Prohibition
Lawyers Committee for Civil Rights of the San Francisco Bay Area
Legal Services for Prisoners with Children
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Los Angeles Community Action Network
Los Angeles Metropolitan Churches
National Council of La Raza (NCLR)
National Employment Law Center (NELP)
National Latino Evangelical Association (NALEC)
Tarzana Treatment Centers, Inc.
The Sentencing Project
Time for Change Foundation
University of California, Hastings College of the Law Students
for a Sensible Drug Policy
Whittier Law School Students for a Sensible Drug Policy
Women's Foundation of California
Opposition
Association for Los Angeles Deputy Sheriffs
California District Attorney Association
California State Sheriffs 'Association
Los Angeles Police Protective League
Riverside Sheriffs' Association
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
319-3744