BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 730 Hearing Date: June 9, 2015
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|Author: |Quirk |
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|Version: |February 25, 2015 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|JM |
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Subject: Controlled Substances: Transport
HISTORY
Source: California Attorneys for Criminal Justice; Conference
of California Bar Associations
Prior Legislation:AB 721 (Bradford) Ch. 504, Stats. 2013
Support: American Civil Liberties Union; California Chapter of
the National Organization for the Reform of Marijuana
Laws (NORML); California Public Defenders;
Californians for Safety and Justice; Drug Policy
Alliance; Legal Services for Prisoners with Children;
Taxpayers for Improving Public Safety
Opposition:None known
Assembly Floor Vote: 49 - 29
PURPOSE
The purpose of this bill is to provide that a conviction for
transportation of marijuana, psilocybin mushrooms or PCP
requires proof of intent to sell, as is currently the case for
cocaine, heroin and numerous other drugs.
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Existing law 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.)
Existing law 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)-(b).)
Existing law 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).)
Existing law 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.)
Existing law 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. For purpose of this
section, "transport" means to transport for sale (Health & Saf.
Code, § 11352.) .
Existing law provides that every person that transports, imports
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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 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. For purposes of this section, "transport"
means to transport for sale. (Health & Saf. Code, § 11379.)
This bill provides that to "transport" psilocybin mushrooms,
phencyclidine (PCP), or marijuana shall be defined to mean to
"transport for sale."
This bill provides that these provisions of law do not preclude
or limit prosecution under an aiding and abetting, or conspiracy
offenses.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
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Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed to
reducing the prison population;
Whether a proposal addresses a major area of public safety or
criminal activity for which there is no other reasonable,
appropriate remedy;
Whether a proposal addresses a crime which is directly dangerous
to the physical safety of others for which there is no other
reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are proportionate,
and cannot be achieved through any other reasonably
appropriate remedy.
COMMENTS
1.Need for This Bill
According to the author:
Prior to 2014, the use of the word "transportation" in
many drug statutes was determined by the courts to
mean simply that - moving a prohibited drug from point
A to point B, regardless of intent. This meant that
an individual walking or riding a bicycle with drugs
could be found guilty of transportation, even if those
drugs are for personal use. The way the statute used
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the term "transport" did not make clear that there
needs to be intent to sell at the end of the act of
transporting.
In 2013, the Legislature enacted AB 721 (Bradford),
Chapter 504, Statutes of 2013, which amended Health
and Safety Code §11379 and §11352 to specify that
"transportation" of specified drugs, including cocaine
and methamphetamine, meant transport for sale, and did
not include transport for personal use. However, AB
721 neglected to make the same change in other,
similar anti-drug statutes. Although almost certainly
due to oversight, the act of changing certain statutes
while leaving other unchanged has the effect of
reinforcing an argument that the Legislature intended
that simple transportation of psilocybin mushrooms,
PCP, or marijuana warrants a higher penalty than
simple possession alone.
AB 730 will conform the definition of "transportation"
in the statutes overlooked during the consideration
and enactment of AB 721, to specify that to
"transport" means to "transport for sale," not for
personal use.
2.Transportation of a Controlled Substance Includes an Element
That the Transportation be For Purposes of Sale, Except for
Transportation of, Psilocybin Mushrooms, PCP Marijuana
Prior to January 1, 2014, a person in possession of a controlled
substance (a drug that cannot be possessed without a
prescription) could be convicted of the more serious crime of
drug transportation if the person even minimally moved the drug.
This was true regardless of the amount of the drug possessed or
the 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." (People v. Emmal (1998) 68
Cal.App.4th 1313, 1316.) Courts interpreted the word
"transports" to include transport of controlled substances for
personal use. (People v. Rogers (1971) 5 Cal.3d 129, 134-135;
People v. Eastman (1993) 13 Cal.App.4th 668.) Further,
although this initially appears to be illogical, transportation
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of a controlled substance does not necessarily include
possession of it. That is, one could knowingly transport a
controlled substance for another person who actually possesses
the drug. (People v. Rogers (1971) 5 Cal.3d 129, 134-137;
People v. Eastman, supra, 13 Cal App 4th 668, 674-678.)
In 2013, AB 721<1> amended three statutes prohibiting
transportation of a controlled substance to add an
intent-to-sell element. Specifically, each statute was amended
to add a new subdivision that states the following: "For
purposes of this section 'transports' means to transport for
sale." The new crime of transportation for sale applied to
numerous drugs, including heroin, cocaine, methamphetamine and
others. However, the new crime does not apply to transportation
of marijuana, phencyclidine (PCP), or psilocybin mushrooms. This
bill requires that a person have the intent to sell these
specified controlled substance in order to be convicted of
felony transportation.
3.Equal Protection: Persons Prosecuted for Transportation of
Controlled Substances Under Separate Statues With Differing
Major Elements
The Equal Protection Clause of the Fourteenth Amendment to the
U.S. Constitution requires that all persons similarly situated
be treated alike under the law. (Lawrence v. Texas (2003) 539
U.S. 558, 579.) 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.
To prevail on an equal protection argument, the defendant must
show that the state has enacted a law that affects 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 internal quotation marks and citation
omitted.) Defendants who have committed the "same quality" of
offense are similarly situated. (Skinner v. Oklahoma (1942) 316
---------------------------
<1> AB 721 (Bradford) - Ch. 504, Stats. 2013; effective January
1, 2014.
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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].) If the court finds that similarly
situated persons are treated differently under the law, the
court will then apply separate 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.) However, liberty is a fundamental
right. Imposing different punishments upon similarly situated
persons likely requires strict scrutiny, such that the state
must show a compelling interest for the classification. (People
v. Oliva (1976) 17 Cal.3d 236
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. Arguably, transporting
marijuana for personal use should carry no greater of a 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.
ARE DEFENDANTS CONVICTED OF TRANSPORTATION OF MARIJUANA,
PSILOCYBIN MUSHROOMS OR PCP DENIED EQUAL PROTECTION BECAUSE A
CONVICTION FOR TRANSPORTATION OF THESE DRUGS DOES NOT REQUIRE
PROOF OF INTENT TO SELL, WHILE TRANSPORATION OF OTHER DRUGS DOES
INCLUDE AN ELEMENT OF INTENT TO SELL?
4.SACPA (Substance Abuse and Crime Prevention Act - Proposition
36 of the 2000 General Election - One who Transports a Drug
for Personal use is Guilty of Non-Violent Drug Possession and
Eligible for Drug Treatment on Probation
SACPA - the Substance Abuse and Crime Prevention Act - requires
that defendants be offered drug treatment on probation, without
incarceration, if the defendant committed a non-violent drug
possession offense. Non-violent drug possession includes
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"transportation for personal use." (Pen. Code § 1210.1, subd.
(a); People v. Harris (2009) 171 Cal.App.4th 1488, 1496.)
Under existing law, a conviction for transportation of heroin,
cocaine, methamphetamine or one of a list of numerous other
drugs necessarily involves the intent to sell and excludes the
defendant from SACPA. Conversely, a person who moved a
controlled substance, but intended to personally use the drug,
would clearly be eligible for treatment under SACPA, unless
otherwise excluded.
However, it appears that transportation of less than an ounce of
marijuana, psilocybin mushrooms or PCP does not include an
element that the defendant intended to sell the drug.
Eligibility for treatment under SACPA of a defendant convicted
of transportation of one of these three drugs must be determined
by a special jury finding or by the court at sentencing.
(People v. Harris, supra, 171 Cal.App.4th at p. 1496-1499.) As
SACPA involves a reduction in penalty, the defendant bears the
burden of proving that he or she transported a drug for personal
use, not commerce. This bill will require the prosecution to
prove intent to sell to convict a defendant of transportation of
marijuana. If the element is not proved, a defendant in
possession of the drug while moving or traveling would only be
convicted of simple possession, and thus would be eligible for
treatment under SACPA.
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