BILL ANALYSIS                                                                                                                                                                                                    



          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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