(1)Existing law makes it a felony, punishable by imprisonment in the state prison for 2, 3, or 4 years to unlawfully possess any amount of a substance containing cocaine base, cocaine, heroin, methamphetamine, or phencyclidine while armed with a loaded, operable firearm.

This bill would instead make that felony punishable in a county jail. By requiring the felony to be served in county jail, this bill would impose a state-mandated local program.

(2)Existing law imposes an enhancement of 3, 4, or 5 years on the sentence of a person who is personally armed with a firearm in the commission of a violation of specified controlled substance offenses.

This bill would require the enhancement to be served in state prison.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 947 (Chávez) - Controlled substances: firearms

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 947 would revise sentencing provisions for the possession of specified controlled substances while armed with a loaded firearm to be punishable pursuant to a jail felony (instead of state prison) unless otherwise disqualified from a jail term. This bill would also provide that a person subject to a sentence enhancement for being personally armed with a firearm in the commission of, or attempted violation of, specified drug commerce offenses to serve the entire sentence in state prison.

Fiscal Impact:

• State prison: (1) Potentially major future increase in state prison costs in the millions to tens of millions of dollars (General Fund) annually to the extent additional commitments to state prison for drug commerce offenses with lengthier terms result, as the base sentence that otherwise would have been served in county jail, plus the enhancement term, would be served in state prison. While the number of cases potentially subject to the sentence enhancement is unknown, annual convictions for the specified drug commerce offenses are in excess of 12,000 annually, and the differential between prison commitments pre- and post-Realignment are in the thousands; (2) Significant decrease in state prison costs, potentially in the low millions of dollars (General Fund) annually to the extent some portion of the more than 300 annual commitments to state prison for drug possession while armed are instead sentenced to a jail term (for persons without a disqualifying current or prior conviction).

• County jails: (1) Potentially major future decreases in local jail costs to the extent fewer persons are sentenced to county jail for drug commerce offenses with an enhancement, and instead serve their sentences in state prison, as the base sentence that otherwise would have been served in county jail, plus the enhancement term, would be served in state prison; (2) Potentially significant increase in local jail costs to the extent the potential charge for a prison enhancement results in plea bargaining down for extended jail sentences; (3) Potentially significant increase in local costs (Local Funds) to the extent some portion of the more than 300 annual commitments to state prison for drug possession while armed are instead sentenced to a jail term.

Background:

Existing law makes it a felony punishable by imprisonment in state prison for two, three or four years to unlawfully possess any amount of a substance containing cocaine, cocaine base, heroin, methamphetamine, or phencyclidine while armed with a loaded, operable firearm. (Health and Safety Code § 11370.1(a).)

Under existing law, a person who is personally armed with a firearm in the commission of a violation or attempted violation of specified controlled substance commerce or manufacturing offenses, is subject to an additional and consecutive term of imprisonment in county jail (unless a current or prior serious or violent felony conviction or conviction requiring registration as a sex offender occurred) for three, four or five years. However, prior to the enactment of 2011 Public Safety Realignment pursuant to AB 109 and AB 117, a person who was personally armed with a firearm in the commission of specified drug trafficking offenses was required to serve the enhancement in state prison. (Penal Code § 12022(c).)

As noted above, current law provides that the sentence for the more serious offense of drug commerce while armed is to be served in county jail, while the sentence for the less serious offense of drug possession while armed is to be served in state prison. This bill seeks to reverse the location in which the sentence is to be served for these offenses, thereby providing that the sentence for the offense of drug possession while armed is to be served in county jail, and the sentence for drug commerce while armed is to be served in state prison.

Proposed Law:

This bill would revise the sentencing provisions for specified drug felonies, as follows:

• Specifies that any person who commits a felony offense of unlawfully possessing any amount of a substance containing cocaine or another specified drug, a crystalline or liquid substance containing PCP, plant material containing PCP, or a hand-rolled cigarette treated with PCP, while armed with a loaded, operable firearm, is subject to imprisonment in county jail (or state prison if ineligible for a jail term due to a current or prior serious, violent, or sex registerable felony conviction) for two, three, or four years.

• Specifies that any person who is personally armed with a firearm in the commission of, or attempted violation of, numerous specified controlled substance commerce or manufacturing offenses, pursuant to HSC §§ 11351, 11351.5, 11352, 11366.5, 11366.6, 11378, 11378.5, 11379, 11379.5, or 11379.6 is subject to an additional and consecutive term of imprisonment in the state prison for three, four, or five years.

Related Legislation:

AB 109 (Committee on Budget) Chapter 15/2011 enacted Public Safety Realignment of 2011, which, among its numerous provisions, requires newly-convicted low-level offenders without current or prior serious or violent offenses to serve their sentences in county jail instead of state prison.

Staff Comments:

The provisions of this bill could result in both potentially significant increases and decreases to state prison and county jail costs under the two separate provisions of the bill as described below:

Drug possession while armed with a loaded firearm – HSC § 11370.1(a)

This bill provides that a conviction for specified drug possession while armed with a loaded firearm is punishable by a term of two, three, or four years in county jail instead of state prison, unless a person has a current or prior disqualifying conviction (serious or violent felony or conviction for an offense requiring sex offender registration), in which case, the term would continue to be served in state prison.

According to data from the CDCR, annual commitments to state prison under HSC § 11370.1(a) since 2012 (post-Realignment) have averaged slightly over 300 per year. It is unknown how many persons would continue to serve their sentences in state prison due to a conviction for an offense disqualifying them from a jail term, but for every 50 to 100 inmates that would potentially serve their sentences in jail instead of state prison, annual cost savings of $1.3 million to $2.7 million could result, based on a contract bed cost of $27,000 per year.

Drug commerce while armed with a firearm – PC § 12022(c)

This bill does not change where the sentence for a drug commerce offense would be served unless a firearm enhancement is established. Drug commerce crimes are generally subject to felony jail terms, unless the person has a disqualifying conviction as described above. The defendant would thus be convicted of a jail felony offense for which the enhancement is to be served in prison. In such cases, the enhancement provision requiring a prison term controls and the defendant would serve the entire sentence in prison, regardless of whether the underlying offense would otherwise be punishable by a felony jail sentence. (People v. Vega (2014) 222 Cal. App. 4th 1374, 1387.)

According to CDCR data, approximately 1,700 persons are currently serving a prison sentence for the specified drug commerce offenses (potentially due to a current or prior serious or violent felony conviction or a conviction for an offense requiring sex offender registration), and the provisions of this measure would not impact this population. Staff notes that the number of commitments to state prison prior to the enactment of 2011 Realignment for the specified drug commerce offenses was nearly 8,000 persons in 2010, however, it is unknown how many of these commitments included a firearm enhancement that could potentially inform the potential fiscal impact of this bill.

Data from the DOJ indicates over 12,000 convictions in 2014 for the specified drug commerce offenses in this measure. While it is unknown what percentage of these cases would be subject to the firearm enhancement, for every one percent or 120 persons per year who would have otherwise been subject to a felony jail term and the firearm enhancement, without a disqualifying conviction barring a jail term, the potential increase to state prison costs assuming a middle base term of three years plus the middle term of four years for the enhancement, would result in first-year costs of $3.2 million, increasing cumulatively to over $16 million annually after five years. To the extent the number of individuals convicted of the specified offenses with the firearm enhancement is greater or less, would impact costs accordingly.

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SENATE COMMITTEE ON PUBLIC SAFETY

Senator Loni Hancock, Chair

2015 - 2016 Regular

Bill No: AB 947 Hearing Date: July 14, 2015

Subject: Controlled Substances: Firearms

HISTORY

Source: California District Attorneys Association; San Diego County District Attorney

Prior Legislation: AB 117 (Committee on Budget) - Ch. 39, Stats. of 2011
AB 109 (Committee on Budget) - Ch. 15, Stats. of 2011

Support: Peace Officers Research Association of California

Opposition: None known

Assembly Floor Vote: 78 - 0

PURPOSE

The purpose of this bill is to: 1) provide that a person who is convicted of being armed with a firearm while in possession of a specified controlled substance is punishable pursuant to Section 1170, subdivision (h), for a felony jail term of 16 months, two years or three years, unless he or she is disqualified from a jail term by a serious felony conviction or sex offender registration status; and 2) provide that a person who is subject to an enhancement of three, four or five years for being personally armed with a firearm in the commission of a specified drug commerce offenses shall serve the entire sentence in prison.

Existing law:

Specifies that every person who unlawfully possesses any amount of a substance containing cocaine base, cocaine, heroin, methamphetamine, crystal or liquid phencyclidine (PCP), or who possesses plant material containing PCP, or a hand-rolled cigarette treated with PCP while armed with a loaded, operable firearm is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years. (Health & Saf. Code § 11370.1, subd. (a).)

Defines "armed with" a firearm as having it available for immediate offensive or defensive use. (Health & Saf. Code, § 11370.1 subd. (a).)

Specifies that any person who is personally armed with a firearm in the commission or attempted commission of a specified controlled substance commerce or manufacturing offense shall be punished by an additional and consecutive term of imprisonment in the county jail for three, four, or five years. (Pen. Code § 12022, subd. (c).)

This bill:

Specifies that any person who commits a felony offense of unlawfully possessing any amount of a substance containing cocaine or another specified drug, a crystalline or liquid substance containing PCP, plant material containing PCP, or a hand-rolled cigarette treated with PCP, while armed with a loaded, operable firearm, is subject to imprisonment pursuant to Penal Code Section 1170, subdivision (h) for two, three, or four years.

Specifies that any person who is personally armed with a firearm in the commission of numerous specified controlled substance commerce or manufacturing offenses, pursuant to Section 11351, 11351.5, 11352, 11366.5, 11366.6, 11378, 11378.5, 11379, 11379.5, or 11379.6 of the Health and Safety Code m is subject to imprisonment in the state prison for three, four, or five years.

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.”( 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:

The Public Safety Realignment Act of 2011 (AB 109) was chaptered into law to address prison overcrowding, escalating costs and rehabilitation issues caused by incarcerating low-level offenders in state prison. A seemingly unintended consequence of AB 109 is that a person convicted of simple possession of a controlled substance while armed with a loaded firearm is punishable by state imprisonment. However, a person convicted for the far more egregious crimes of selling, and possessing a controlled substance for sale, while armed with a loaded firearm is punishable by time in a local prison.

Although the numbers of both groups appear similar, the inequity caused by sending the less dangerous person to prison is inconsistent with the goals of AB 109. AB 947 would alternate these punishments between being served in county jail and state prison. This bill would make it a felony, punishable by county jail if an individual is found in possession with both a firearm and illegal substances. For those convicted with a firearm in the commission of a specified controlled substance with the intent to sell, the individual would be required to serve his/her time in state prison.

California is one of the nation’s leaders in drug defense; this change in punishment is essential to continue the war on drugs and is in conformity with the goals of the Legislature in enacting AB 109.

2. Under Criminal Justice Realignment Persons Convicted of Low-Level Felonies Serve Their Executed Sentences in County Jail, not Prison, with Specified Exceptions

AB 109 - Ch. 15, Stats. 2011 - enacted what is generally referred to as criminal justice realignment. Realignment made a number of felonies punishable by imprisonment in a county jail, not state prison, unless the defendant is disqualified by a serious felony conviction or sex offender registration status. The felonies punishable by imprisonment in county jail are generally on the lower end of the felony spectrum. Prior to realignment, the only convicted felons in county jails were those who were convicted of a felony, granted probation, but ordered to serve a term in jail as a condition of probation, not as a sentence.

3. Punishment Scheme for Health and Safety Code section 11370.1 and Penal Code section 12022, subdivision (c)

A defendant who convicted of possession of specified controlled substances for personal use while armed with a loaded, operable firearm is punishable by a term in a state prison of two, three, or four years. (Pen. Code § 11370.1.) This penalty was not changed by realignment.

Prior to realignment, a person who was personally armed with a firearm in the commission of specified drug commerce offenses was subject to an prison term enhancement of three, four, or five years. (Pen. Code § 12022, subd. (c).) This enhancement became subject to sentencing pursuant Penal Code Section 1170, subdivision (h) through realignment. A defendant convicted of specified drug commerce offenses with an enhancement allegation for being armed with a firearm serves his or her sentence in jail, unless excluded because of serious felony conviction or status as a sex offender registrant.

Current law thus provides that the sentence for the more serious offense of drug commerce while armed will be served in jail and the sentence for the less serious offense of drug possession while armed will be served in jail. This is an anomaly, as felony jail terms under realignment were intended for lower-level felonies. This bill reverses the penalty provisions for these offenses and provides that drug commerce while armed with a firearm is to be served in prison, while drug possession while armed is to be served in jail.

This bill does not directly change where the sentence for a drug commerce crime would be served, unless a firearm enhancement is established. Drug commerce crimes are generally subject to felony jail terms pursuant to Penal Code Section 1170 subdivision (h). This bill would direct a court to impose a state prison enhancement when the defendant has been convicted of a drug trafficking offense while personally armed with a firearm. The defendant would thus be convicted of a jail felony crime for which the enhancement is to be served in prison. In such cases, the enhancement provision requiring a prison term controls and the defendant serves the entire sentence in prison, regardless of whether the underlying offense would otherwise be punishable by a felony jail sentence. (People v. Vega (2014) 222 Cal. App. 4th 1374, 1387.)

4. Argument in Support

The California District Attorneys Association argues in support

Realignment was intended to address prison overcrowding, escalating costs, and rehabilitation issues caused by incarcerating low-level offenders in the state prison. AB 109 sought to correct these issues by allowing such offenders to serve their prison time in local jail, leaving room in state prison for more serious offenders.

Unfortunately, the drafting of AB (109) created an incongruous result whereby a person convicted of simple possession of a controlled substance while armed with a loaded and operable firearm is punishable by a term in state prison, while a person convicted of the far more egregious crime of selling, and possessing a controlled substance (other than marijuana) for sale, while armed with a loaded and operable firearm is punishable in county jail pursuant to PC 1170(h).

AB 947 would effectively flip the location of where these sentences are served – armed drug dealers and traffickers would be state prison eligible, while those who simply possess controlled substances while armed would serve their sentences locally. We believe that this is consistent with the intent of the Legislature, and the goals of Realignment, that low level offenders serve time locally, and more serious offenders serve time in state prison.

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Date of Hearing: May 6, 2015

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

ABPCA Bill Id:AB 947

Author:(Chávez) – As Introduced Ver:February 26, 2015

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill requires individuals convicted of possession of specified drugs (for personal use) while armed with a loaded firearm to be punishable in county jail, instead of state prison, without changing the length of imprisonment. The bill also requires individuals convicted of specified drug offenses (trafficking) while armed with a firearm to be imprisoned in the state prison, instead of county jail, without changing the length of imprisonment.

FISCAL EFFECT:

Assuming an average sentence of three years for personal use convictions and four years for trafficking, $29,000 per bed in state prison, and the statewide convictions similar to those convictions in San Diego County, this bill may result in savings to California Department of Corrections and Rehabilitation in the millions. Fewer inmates will serve longer sentences in state prison.

COMMENTS:

1. Background. AB 109, Chapter 15, Statutes of 2011, is generally referred to as “realignment.” Realignment made a number of felonies punishable by imprisonment in a county jail as opposed to state prison. The felonies punishable by imprisonment in county jail were generally deemed to be on the lower end of the felony spectrum. The bill continued to require imprisonment in state prison for serious and violent felonies, and felonies requiring registration as a sex offender. Also requiring imprisonment in state prison were situations when the defendant was convicted on a felony and had a prior conviction for a serious or violent felony, or a felony subjecting the defendant to registration as a sex offender.

Prior to realignment, possession of specified controlled substances for personal use, while armed with a loaded, operable firearm was punishable by state prison for two, three, or four years. Prior to realignment, a person who was personally armed with a firearm in the commission of specified drug trafficking offenses was subject to an enhancement that imposed an additional and consecutive term of imprisonment in state prison for three, four, or five years.

Pursuant to realignment, drug trafficking offenses, including possession of drugs for sale, sale of drugs, and manufacturing of drugs are now punishable with imprisonment in county jail, rather than state prison. However, possession of specified controlled substances for personal use, while armed with a loaded, operable firearm is still punishable by state prison.

2. Purpose. According to the author, "California is one of the nation’s leaders in drug defense; this change in punishment is essential to continue the war on drugs and is in conformity with the goals of the Legislature in enacting AB 109.”

3. Argument in Support: According to the California District Attorney Association, “As you know, Realignment was intended to address prison overcrowding, escalating costs, and rehabilitation issues caused by incarcerating low-level offenders in the state prison. AB 109 sought to correct these issues by allowing such offenders to serve their prison time in local jail, leaving room in state prison for more serious offenders.

“Unfortunately, the drafting of AB 1089 created an incongruous result whereby a person convicted of simple possession of a controlled substance while armed with a loaded and operable firearm is punishable by a term in state prison, while a person convicted of the far more egregious crime of selling, and possessing a controlled substance (other than marijuana) for sale, while armed with a loaded and operable firearm is punishable in county jail."

Analysis Prepared by: Pedro R. Reyes / APPR. / (916) 319-2081

Date of Hearing: April 14, 2015

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Bill Quirk, Chair

ABPCA Bill Id:AB 947

Author:(Chávez) – As Introduced Ver:February 26, 2015

SUMMARY:

Requires individuals convicted of possession of specified drugs (personal use) while armed with a loaded firearm to be punishable in county jail, instead of state prison, without changing the length of imprisonment. Requires individuals convicted of specified drug offenses (trafficking) while armed with a firearm to be imprisoned in the state prison, instead of county jail, without changing the length of imprisonment. Specifically, this bill:

1. Specifies the punishment for persons who commit the felony offenses of unlawfully possessing any amount of a substance containing cocaine base, a substance containing cocaine, a substance containing heroin, a substance containing methamphetamine, a crystalline substance containing phencyclidine, a liquid substance containing phencyclidine, plant material containing phencyclidine, or a hand-rolled cigarette treated with phencyclidine, while armed with a loaded, operable firearm, as imprisonment in the county jail for two, three, or four years.

2. Specifies the punishment for persons who are personally armed with a firearm in the commission of a violation or attempted violation of Section 11351, 11351.5, 11352, 11366.5, 11366.6, 11378, 11378.5, 11379, 11379.5, or 11379.6 of the Health and Safety Code (these offenses generally address the possession of drugs for sale, or sale drugs, or manufacturing of drugs) shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years.

EXISTING LAW:

1. Specifies that every person who unlawfully possesses any amount of a substance containing cocaine base, a substance containing cocaine, a substance containing heroin, a substance containing methamphetamine, crystal or liquid phencyclidine (PCP), plant material containing PCP, or a hand-rolled cigarette treated with PCP while armed with a loaded, operable firearm is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years. (Health & Saf. Code, § 11370.1, subd. (a).)

2. Defines "armed with" as having a firearm available for immediate offensive or defensive use. (Health & Saf. Code, § 11370.1, subd. (a).)

3. States that any person who is convicted under this section shall be ineligible for diversion or deferred entry of judgment. (Health & Saf. Code, § 11370.1, subd. (b).)

4. Specifies that person who is personally armed with a firearm in the commission of a violation or attempted violation of specified narcotics sales offenses shall be punished by an additional and consecutive term of imprisonment in the county jail for three, four, or five years. (Pen. Code, § 12022, subd. (c).)

5. Mandates that a person who is not personally armed with a firearm who, knowing that another principal is personally armed with a firearm, is a principal in the commission of an offense or attempted offense specified in subdivision (c), shall be punished by an additional and consecutive term of imprisonment in the county jail for one, two, or three years. (Pen. Code, § 12022, subd. (d).)

6. States that for purposes of imposing an enhancement under Section 1170.1, the enhancements under this section shall count as a single enhancement. (Pen. Code, § 12022, subd. (e).)

7. Allows the court to strike the additional punishment for the enhancements in an unusual case where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition. (Pen. Code, § 12022, subd. (f).)

8. States that every person who possesses for sale or purchases for purposes of sale any specified drugs or narcotics shall be punished by imprisonment in the county jail for two, three, or four years. (Health & Saf. Code, § 11351.)

9. Specifies that every person who possesses for sale or purchases for purposes of sale cocaine base, as specified, shall be punished by imprisonment in the county jail for a period of two, three, or four years. (Health & Saf. Code, § 11351.5)

10. 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 specified drugs or narcotics, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in the county jail for three, four, or five years. (Health & Saf. Code, § 11352, subd. (a).)

11. States that any person who has under his or her management or control any building, room, space, or enclosure, either as an owner, lessee, agent, employee, or mortgagee, who knowingly rents, leases, or makes available for use, with or without compensation, the building, room, space, or enclosure for the purpose of unlawfully manufacturing, storing, or distributing any controlled substance for sale or distribution shall be punished by imprisonment in the county jail for not more than one year, in the county jail for 16 months, two or three years. (Health & Saf. Code, § 11366.5, subd. (a).)

12. Specifies that any person who has under his or her management or control any building, room, space, or enclosure, either as an owner, lessee, agent, employee, or mortgagee, who knowingly allows the building, room, space, or enclosure to be fortified to suppress law enforcement entry in order to further the sale of any amount of cocaine base as specified, cocaine as specified, heroin, phencyclidine, amphetamine, methamphetamine, or lysergic acid diethylamide and who obtains excessive profits from the use of the building, room, space, or enclosure shall be punished by imprisonment in the county jail for two, three, or four years. (Health & Saf. Code, § 11366.5, subd. (b).

13. Specifies that any person who utilizes a building, room, space, or enclosure specifically designed to suppress law enforcement entry in order to sell, manufacture, or possess for sale any amount of cocaine base as specified, cocaine as specified, heroin, phencyclidine, amphetamine, methamphetamine, or lysergic acid diethylamide shall be punished by imprisonment in the county jail for three, four, or five years. (Health & Saf. Code, § 11366.6.)

14. States that a person who possesses for sale specified controlled substances that meets any of the following criteria shall be punished by imprisonment in the county jail for 16 months, two, or three years. (Health & Saf. Code, § 11378.)

15. States that every person who possesses for sale phencyclidine (PCP) or any analog or any precursor of phencyclidine as specified, shall be punished by imprisonment in the county jail for a period of three, four, or five years. (Health & Saf. Code, § 11379.)

16. States 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 phencyclidine or any of its analogs as specified, unless upon the prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in the county jail for a period of three, four, or five years. (Health & Saf. Code, § 11379.5, subd. (a).)

17. Specifies that any person who transports for sale any specified controlled substances within this state from one county to another noncontiguous county shall be punished by imprisonment pursuant in the county jail for three, six, or nine years. (Health & Saf. Code, § 11379.5, subd. (b).)

18. States that every person who manufactures, compounds, converts, produces, derives, processes, or prepares, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, any specified controlled substance shall be punished by imprisonment in the county jail for three, five, or seven years and by a fine not exceeding fifty thousand dollars ($50,000). (Health & Saf. Code, § 11379.6, subd. (a).)

19. Provides that every person who offers to manufacture drugs as specified shall be punished by imprisonment in the county jail for three, four, or five years. (Health & Saf. Code, § 11379.6, subd. (c).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "California is one of the nation’s leaders in drug defense; this change in punishment is essential to continue the war on drugs and is in conformity with the goals of the Legislature in enacting AB 109.”

2. Realignment: AB 109, Chapter 15, Statutes of 2011. AB 109 is generally referred to as “realignment.” This bill made a number of felonies punishable by imprisonment in a county jail as opposed to state prison. The felonies punishable by imprisonment in county jail were generally deemed to be on the lower end of the felony spectrum. The bill continued to require imprisonment in state prison for serious and violent felonies, and felonies requiring registration as a sex offender. Also requiring imprisonment in the state prison, were situations when the defendant was convicted on a felony and had a prior conviction for a serious or violent felony, or a felony subjecting the defendant to registration as a sex offender.

3. Punishment Scheme for Health and Safety Code section 11370.1 and Penal Code section 12022(c) Prior to Realignment: Prior to realignment, possession of specified controlled substances for personal use while armed with a loaded, operable firearm was punishable by state prison for two, three, or four years. (Pen. Code, § 11370.1.) Prior to realignment, a person who was personally armed with a firearm in the commission of specified drug trafficking offenses was subject to an enhancement which imposed an additional and consecutive term of imprisonment in the state prison for three, four, or five years. (Pen. Code, § 12022, subd. (c).)

4. Proposed Legislation Would Not Change the Sentencing Scheme for Individuals Charged with Specified Drug Trafficking Offenses Without an Enhancement That Imposes State Prison: Pursuant to realignment drug trafficking offenses including possession of drugs for sale, sale of drugs, and manufacturing of drugs are now punishable under Penal Code section 1170(h) with imprisonment in the county jail, rather than state prison. (Pen. Code, §§ 11351, 11351.5, 11352, 11366.5, 11366.6, 11378, 11378.5, 11379, 11379.5, 11379.6.) Individuals convicted on any of those drug trafficking offenses without an enhancement specifying state prison, would continue to be imprisoned in county jail under Pen. Code section 1170(h).

The proposed legislation would impose a state prison enhancement when an individual is convicted of the specified drug trafficking offenses while personally armed with a firearm. The imposition of that state prison enhancement would require that time imposed for the underlying drug trafficking offense also be served in state prison. Under People v. Vega (2014), 222 Cal. App. 4th 1374, the imposition of an enhancement imposing state prison on a base term punishable in county jail results in the entire sentence (base term + enhancement) served in state prison.

5. Argument in Support: According to the California District Attorney Association, “As you know, Realignment was intended to address prison overcrowding, escalating costs, and rehabilitation issues caused by incarcerating low-level offenders in the state prison. AB 109 sought to correct these issues by allowing such offenders to serve their prison time in local jail, leaving room in state prison for more serious offenders.

“Unfortunately, the drafting of AB 1089 created an incongruous result whereby a person convicted of simple possession of a controlled substance while armed with a loaded and operable firearm is punishable by a term in state prison, while a person convicted of the far more egregious crime of selling, and possessing a controlled substance (other than marijuana) for sale, while armed with a loaded and operable firearm is punishable in county jail pursuant to PC 1170(h).

"AB 947 would effectively flip the location of where these sentences are served – armed drug dealers and traffickers would be state prison eligible, while those who simply possess controlled substances while armed would serve their sentences locally. We believe that this is consistent with the intent of the Legislature, and the goals of Realignment, that low level offenders serve time locally, and more serious offenders serve time in state prison.”

6. Prior Legislation: AB 109, Chapter 15, Statutes of 2011. This law, commonly referred to as “realignment,” generally provided that specified felonies are punishable by imprisonment in a county jail, as opposed to state prison. The bill provided exceptions to imprisonment in a county jail for a variety of felonies, including serious felonies and violent felonies, as defined, felonies requiring registration as a sex offender, and when the defendant has a prior conviction for a serious or violent felony, or a felony subjecting the defendant to registration as a sex offender, among other exceptions. Those exceptions continued to be punished by imprisonment in state prison.
   
   

REGISTERED SUPPORT / OPPOSITION:

Support

San Diego County District Attorney
California District Attorneys Association

Opposition

None

Analysis Prepared by:

David Billingsley / PUB. S. / (916) 319-3744