BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                        AB 730|
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                                   THIRD READING 


          Bill No:  AB 730
          Author:   Quirk (D)
          Introduced:2/25/15  
          Vote:     21  

           SENATE PUBLIC SAFETY COMMITTEE:  5-2, 6/9/15
           AYES:  Hancock, Glazer, Leno, Liu, Monning
           NOES:  Anderson, Stone

           ASSEMBLY FLOOR:  49-29, 4/20/15 - See last page for vote

           SUBJECT:   Controlled substances: transport


          SOURCE:    Author
          
          DIGEST:  This bill provides that a conviction for transportation  
          of marijuana, psilocybin mushrooms or phencyclidine (PCP)  
          requires proof of intent to sell, as is currently the case for  
          cocaine, heroin and numerous other drugs.

          ANALYSIS:


          Existing law:


          1)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.)








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          2)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).)

          3)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).)

          4)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.)

          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, 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.  (Health & Saf.  
            Code, § 11352.)  For purpose of this section, "transport"  
            means to transport for sale.

          6)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  
            methamphetamine, or any controlled substance, which is not a  
            narcotic, listed in the controlled substance schedule without  







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            a written prescription shall be punished by imprisonment for  
            two, three, or four years.  (Health & Saf. Code, § 11379.)   
            For purposes of this section, "transport" means to transport  
            for sale.  

          This bill:

          1)Provides that to "transport" psilocybin mushrooms, PCP, or  
            marijuana shall be defined to mean to "transport for sale." 

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



          Background


          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 felony drug transportation if  
          the person even minimally moved the drug, regardless of the  
          amount of the drug possessed or the intent of the possessor.   
          "Transportation ?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.)   The crime includes transport of  
          controlled substances for personal use. (People v. Rogers (1971)  
          5 Cal.3d 129, 134-135.)   

          In 2013, AB 721 (Bradford, Chapter 504) amended two Health and  
          Safety Code sections - 11352 and 11379 - so as to provide the  
          following:  "For purposes of this section 'transports' means to  
          transport for sale."  The new crime of transportation for sale  
          applies to numerous drugs, including heroin, cocaine,  
          methamphetamine.  However, this new definition of drug  
          transportation does not apply to marijuana, PCP, or psilocybin  
          mushrooms.  This bill, AB 730, requires that a person have the  
          intent to sell these controlled substance in order to be  
          convicted of felony transportation. 

          The Equal Protection Clause of the Fourteenth Amendment to the  
          U.S. Constitution requires that all persons similarly situated  







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          be treated alike under the law. (Lawrence v. Texas (2003) 539  
          U.S. 558, 579.)  Under existing 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. 

          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  
          "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, 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 requires 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.

          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:NoLocal:    No


          SUPPORT:   (Verified  6/9/15)


          American Civil Liberties Union







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          California Attorneys for Criminal Justice
          California Public Defenders
          Californians for Safety and Justice
          Conference of California Bar Associations
          Drug Policy Alliance
          Legal Services for Prisoners with Children
          National Organization for the Reform of Marijuana Laws,  
          California Chapter
          Taxpayers for Improving Public Safety


          OPPOSITION:   (Verified6/9/15)


          None received
           
           
          ASSEMBLY FLOOR:  49-29, 4/20/15
          AYES:  Alejo, Bloom, Bonilla, Bonta, Brown, Burke, Calderon,  
            Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd,  
            Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gipson,  
            Gomez, Gonzalez, Gordon, Gray, Hadley, Roger Hernández,  
            Holden, Jones-Sawyer, Levine, Lopez, Low, McCarty, Mullin,  
            Nazarian, Obernolte, O'Donnell, Quirk, Rendon, Ridley-Thomas,  
            Rodriguez, Santiago, Mark Stone, Thurmond, Ting, Weber,  
            Williams, Wood, Atkins
          NOES:  Achadjian, Travis Allen, Baker, Bigelow, Brough, Chávez,  
            Dahle, Beth Gaines, Gallagher, Gatto, Grove, Harper, Irwin,  
            Jones, Kim, Lackey, Linder, Maienschein, Mathis, Mayes,  
            Medina, Melendez, Olsen, Patterson, Salas, Steinorth, Wagner,  
            Waldron, Wilk
          NO VOTE RECORDED:  Chang, Perea

          Prepared by:Jerome McGuire / PUB. S. / 
          6/10/15 10:51:03


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