BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 649
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          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