BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 730


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          Date of Hearing:   April 7, 2015
          Counsel:               Sandra Uribe



                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                                  Bill Quirk, Chair





          AB  
                     730 (Quirk) - As Introduced  February 25, 2015




          SUMMARY:  Provides that "transportation" of marijuana,  
          phencyclidine (PCP), or mushrooms shall be defined to mean  
          transportation for purposes of sale. Specifically, this bill:  

          1)Defines "transport" for purposes of the statute prohibiting  
            the transportation of not more than 28.5 grams of marijuana or  
            other concentrated cannabis as "transport for sale."

          2)Defines "transport" for purposes of the statute prohibiting  
            the transportation of PCP or any of its analogs or precursors  
            as "transport for sale."

          3)Defines "transport" for purposes of the statute prohibiting  
            the transportation of any spores or mycelium capable of  
            producing mushrooms or other materials which contain  
            psilocybin or psilocin as "transport for sale."

          4)Provides that these provisions of law do not preclude or limit  
            prosecution under an aiding and abetting theory, or conspiracy  
            offenses.

          EXISTING LAW:  








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          1)Provides that every person who transports, imports into the  
            state, sells, furnishes, administers, or gives away, or offers  
            to transport, import into the state, sell, furnish,  
            administer, or give away, or attempts to import into this  
            state or transport marijuana shall be punished in the county  
            jail pursuant to realignment for a period of two, three or  
            four years.  (Health & Saf. Code, § 11360, subd. (a).)

          2)Provides that every person who transports, imports into this  
            state, sells, furnishes, administers, or gives away, or offers  
            to transport, import into this state, sell, furnish,  
            administer, or give away, or attempts to import into this  
            state or transport PCP or any of its specified analogs or  
            precursors shall be punished by imprisonment pursuant to  
            realignment for a period of three, four, or five years.  
            (Health & Saf. Code, § 11379.5, subd. (a).)

          3)Provides that every person who transports, imports into this  
            state, sells, furnishes, gives away, or offers to transport,  
            import into this state, sell, furnish, or give away any spores  
            or mycelium capable of producing mushrooms or other material  
            which contain a specified controlled substance shall be  
            punished by imprisonment in the county jail for a period of  
            not more than one year or in the state prison. (Health & Saf.  
            Code, § 11391.)

          4)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, administer  
            or give away, or attempts to import into this state or  
            transport cocaine, cocaine base, or heroin, or any controlled  
            substance which is a narcotic drug, without a written  
            prescription shall be punished by imprisonment pursuant to  
            realignment for three, four, or five years.  Specifies that  
            "transport" means transportation for sale.  (Health & Saf.  
            Code, § 11352.)

          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  








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            methamphetamine, or any controlled substance, which is not a  
            narcotic, listed in the controlled substance schedule without  
            a written prescription shall be punished by imprisonment for  
            two, three, or four years.  Specifies that transport means  
            transportation for sale.  (Health & Saf. Code, § 11379.) 

          6)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  
            I controlled substance.  (Health & Saf. Code, §§ 11054 to  
            11058.)

          FISCAL EFFECT:  Unknown

          COMMENTS:  

          1)Author's Statement:  According to the author, "AB 730 is about  
            fairness and consistency.  Two years ago, the Legislature  
            clarified that 'transportation' of illegal drugs was intended  
            to apply to transportation of the drugs for sale, not for  
            personal use.  However, the Legislature overlooked certain  
            statutes in its deliberations, resulting in a situation where  
            transportation of some drugs for personal use can be charged  
            only as a possession offense, while transportation of other  
            drugs for personal use can be charged as both possession and  
            transportation.  AB 730 removes this unfair inconsistency and  
            makes it clear that in Health & Safety Code §11360, §11379.5  
            and §11391 'transport' of those specified drugs means  
            transportation with intent to sell."

          2)Transportation of a Controlled Substance:  Previously, a  
            person could be convicted of transportation of a controlled  
            substance if such a substance was minimally moved, regardless  
            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."  (See e.g., People v. Emmal (1998) 68  
            Cal.App.4th 1313, 1316.)  Courts had interpreted the word  
            "transports" to include transport of controlled substances for  
            personal use. (People v. Rogers (1971) 5 Cal.3d 129, 134-135;  








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            People v. Eastman (1993) 13 Cal.App.4th 668.) 
             
          Effective January 1, 2014, three statutes prohibiting  
            transportation of a controlled substance were amended to add  
            an intent-to-sell element.  Specifically the statutes added a  
            new subdivision which states "For purposes of this section  
            'transports' means to transport for sale."  

          However, other transportation-of-controlled-substance statutes  
            were not affected.  This bill requires that a person  
            transporting marijuana, phencyclidine, or mushrooms have the  
            intent to sell the controlled substance in order to be  
            convicted of felony transportation of a controlled substance,  
            eliminating the possibility of a person transporting a small  
            amount of a controlled substance for personal use of being  
            convicted of felony transportation.

          3)Equal Protection:  The Equal Protection Clause of the  
            Fourteenth Amendment to the U.S. Constitution is essentially a  
            direction that all persons similarly situated should be  
            treated alike. (Lawrence v. Texas (2003) 539 U.S. 558, 579  
            (conc. opn. of O'Connor J., citations and quote marks  
            omitted.)  Under current law, a person can by punished more  
            severely for transporting marijuana for personal use than for  
            transporting methamphetamine or cocaine.  That they are  
            treated differently raises equal protection concerns.

          "The first prerequisite to a meritorious claim under the equal  
            protection clause is a showing that the state has adopted a  
            classification that affects two or more similarly situated  
            groups in an unequal manner." (In re Eric J. (1979) 25 Cal.3d  
            522, 530; Cooley v. Superior Court (2002) 29 Cal.4th 228,  
            253.)  Under the equal protection clause, a court does not  
            inquire "whether persons are similarly situated for all  
            purposes, but 'whether they are similarly situated for  
            purposes of the law challenged.'" (Cooley v. Superior Court,  
            supra, 29 Cal.4th at p. 253, quoting People v. Gibson (1988)  
            204 Cal.App.3d 1425, 1438.)  "The 'similarly situated'  
            prerequisite simply means that an equal protection claim  
            cannot succeed, and does not require further analysis, unless  
            there is some showing that the two groups are sufficiently  
            similar with respect to the purpose of the law in question  








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            that some level of scrutiny is required in order to determine  
            whether the distinction is justified.  (People v. Nguyen  
            (1997) 54 Cal.App.4th 705, 714.)

          Although "a defendant convicted of one crime is not similarly  
            situated to a defendant convicted of a different crime"  
            (People v. Jacobs (1984) 157 Cal.App.3d 797, 800; People v.  
            Barrerra (1993) 14 Cal.App.4th 1555, 1565), defendants who  
            have committed the "same quality" of offense are similarly  
            situated.  (Skinner v. Oklahoma (1942) 316 U.S. 535, 541  
            [thieves and embezzlers similarly situated]; In re King (1970)  
            3 Cal.3d 226 [out-of-state fathers who fail to support  
            children are similarly situated with in-state nonsupporting  
            fathers].)

          The two groups at issue here are arguably similarly situated for  
            purposes of these statutes.  Where no sales element is proven,  
            each group is transporting controlled substances for personal  
            use.  The only difference is the specific drug possessed for  
            personal use.  All other parts of the contested act, such as  
            the method of transportation, are the same.

          If it is found that that the groups are similarly situated, in  
            the second prong of an equal protection analysis, the court  
            will apply different levels of scrutiny to different types of  
            classifications.  "In the absence of a classification that is  
            inherently invidious or that impinges upon fundamental rights,  
            a state statute is to be upheld against equal protection  
            attack if it is rationally related to the achievement of  
            legitimate governmental ends."  (Gates v. Superior Court  
            (1995) 32 Cal.App.4th 481, 514.)    

          At first blush, the most obvious reason for the differing  
            treatment is that controlled substances are on different  
            schedules for drug classification.  Marijuana is a schedule I  
            drug while methamphetamine is a schedule II drug.  Although  
            schedule II through V drugs may be prescribed under certain  
            conditions (see e.g., Health & Saf. Code, § 11158), no such  
            provisions exist for schedule I.  

          However, California recognizes the use of marijuana for  
            medicinal purposes.  (See Health & Saf. Code, § 11362.5 et  








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            seq., the Compassionate Use Act.)  Moreover, marijuana is  
            certainly treated differently than any other schedule I drug  
            throughout the Penal Code.  The Legislature has deemed that  
            mere possession of marijuana is a less serious offense than  
            possession of methamphetamine.  Possession of less than 28.5  
            grams of marijuana is an infraction, while possessing more  
            than that amount is an misdemeanor warranting not more than  
            six months in jail.  (Health & Saf. Code, § 11357, subds. (b)  
            & (c).)  Compare that with possession of any usable amount of  
            methamphetamine, which until the passage of Proposition 47 was  
            an alternate felony/misdemeanor offense, and which is now a  
            misdemeanor carrying a jail term of up to one year.  (Health &  
            Saf. Code, § 11377, subd. (a).)  It stands to reason, then,  
            that transporting marijuana for personal use should carry less  
            of a penalty (or at least an equal penalty) than transporting  
            methamphetamine.  However, the opposite is true.  This by  
            itself supports the notion of an equal protection violation as  
            to transportation of marijuana.  This bill would address those  
            equal protection concerns.

          4)Argument in Support:  According to the Conference of  
            California Bar Associations, a co-sponsor of this bill, "AB  
            730 would conform the definition of 'transportation' of drugs  
            in Health & Safety Code §§11360, 11379.5 and 11391 with the  
            changes made in 2013 to Health & Safety Code §§11352 and  
            11379, making it applicable solely to transport for sale, not  
            for personal use.  This will add common sense, consistency and  
            fairness to the statutes being conformed.  It will also  
            prevent problems resulting from the current inconsistency  
            between the various statutes.

          "Existing law penalizes the transportation of drugs more  
            severely than the simple possession of drugs because  
            transportation is most often linked with the sale of drugs.  
            However, California courts have interpreted the term  
            'transportation' in the drug statutes in its most literal  
            sense - moving a prohibited drug from point A to point B,  
            regardless of intent. This means that a person riding a  
            bicycle with drugs can be guilty of transportation (People. v.  
            LaCross (2001) 91 Cal.App.4th 182), as can a person simply  
            walking with drugs (People v. Ormiston (2003) 105 Cal. App.  
            4th 676), even if those drugs are for personal use. These  








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            rulings have created problems for persons otherwise eligible  
            for Proposition 36 drug probation, with appellate courts  
            allowing a judge to determine whether transportation was for  
            sale even though a jury had acquitted the defendant of  
            possession for sale (People v. Dove (2004) 124 Cal.App.4th  
            1.).

          "In 2013, the Legislature enacted AB 721 (Bradford), Chapter  
            504, which amended Health & Safety Code §§11379 and 11352 to  
            specify that 'transportation' of specified drugs, including  
            cocaine and methamphetamine, meant transportation for sale,  
            not for personal use. At the time, however, the Legislature  
            neglected to make the same change to three other anti-drug  
            sections of the Health and Safety Code - including those  
            dealing with marijuana (§11360) and with PCP and other drugs  
            (§11379.5) - that impose harsher penalties for transportation,  
            even if the drug possession is for personal use and the  
            transportation is simply incidental. In fact, the  
            Legislature's failure to make a consistent change in these  
            statutes can and will be taken by the courts as evidence of  
            the Legislature's intent to impose the higher penalty on  
            incidental transportation.

          "AB 730 corrects this oversight by making the  
            transportation-related language in all these anti-drug  
            statutes consistent, with 'transportation' meaning transport  
            for sale, not transport incidental to personal use.  Simple  
            possession remains a crime - it is not decriminalized. The  
            only change is that a person walking down the street with  
            drugs can only be charged with simple possession unless there  
            is evidence the transportation is for sale."

          5)Argument in Opposition:  None submitted

          6)Related Legislation:  

             a)   AB 46 (Lackey), would reverse provisions recently  
               enacted by Proposition 47 related to possession for  
               personal use of specified controlled substances.  AB 46 is  
               pending hearing in this committee.

             b)   AB 947 (Chávez), would make the crime of unlawfully  








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               possess any amount of cocaine base, cocaine, heroin,  
               methamphetamine, or phencyclidine while armed with a  
               loaded, operable firearm punishable by imprisonment in the  
               county jail rather than state prison.  AB 947 is pending  
               hearing in this committee.

             c)   SB 333 (Galgiani), is substantially similar to AB 46.   
               SB 333 is pending in the Senate Public Safety Committee.

          7)Prior Legislation:  AB 721 (Bradford) Chapter 504, Statutes of  
            2013, made the transportation of specified controlled  
            substances a felony only if the individual transports the  
            controlled substance for purposes of sale.

          REGISTERED SUPPORT / OPPOSITION:
          
          Support


          California Attorneys for Criminal Justice (Co-Sponsor)
          Conference of California Bar Associations (Co-Sponsor)
          American Civil Liberties Union
          California NORML
          California Public Defenders Association
          Drug Policy Alliance
          Legal Services for Prisoners with Children
          Taxpayers for Improving Public Safety


          Opposition


          None


          Analysis Prepared  
          by:              Sandy Uribe / PUB. S. / (916) 319-3744













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