BILL ANALYSIS Ó AB 730 Page 1 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: AB 730 Page 2 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 AB 730 Page 3 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; AB 730 Page 4 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 AB 730 Page 5 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 AB 730 Page 6 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 AB 730 Page 7 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 AB 730 Page 8 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 AB 730 Page 9