(1)Existing law generally provides that the possession of ketamine, gamma hydroxybutyric acid (GHB), and flunitrazepam is a misdemeanor, punishable by imprisonment in a county jail for not more than one year.

This bill would make it a felony, punishable by imprisonment in a county jail for 16 months, or 2 or 3 years, to possess ketamine, flunitrazepam, or GHB, with the intent to commit sexual assault, as defined for these purposes to include, among other acts, rape, sodomy, and oral copulation. By creating a new crime, this bill would impose a state-mandated local program.

(2)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.

(1)Existing law generally provides that the possession of ketamine, gamma hydroxybutyric acid (GHB), and flunitrazepam is a misdemeanor, punishable by imprisonment in a county jail for not more than one year.

This bill would make it a felony, punishable by imprisonment in a county jail for 16 months, or 2 or 3 years, to possess ketamine, flunitrazepam, or GHB, with the intent to commit sexual assault, as defined for these purposes to include, among other acts, rape, sodomy, and oral copulation. By creating a new crime, this bill would impose a state-mandated local program.

(2)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.

(1)Existing law generally provides that the possession of Ketamine, ketamine, gamma hydroxybutyric acid (GHB), and flunitrazepam is a misdemeanor, punishable by imprisonment in the a county jail for not more than one year.

This bill would make it a felony, punishable by imprisonment in the a county jail for 16 months, or 2 or 3 years, to possess Ketamine, ketamine, flunitrazepam, or GHB, with the intent to commit sexual assault, as defined for these purposes to include, among other acts, rape, sodomy, and oral copulation. By creating a new crime, this bill would impose a state-mandated local program.

(2)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.

(1)Existing law generally provides that the possession of Ketamine, gamma hydroxybutyric acid (GHB), and flunitrazepam is a misdemeanor, punishable by imprisonment in the county jail for not more than one year.

This bill would make it a felony, punishable by imprisonment in the county jail for 16 months, or 2 or 3 years, to possess Ketamine, flunitrazepam, or GHB, with the intent to commit sexual assault, as defined for these purposes to include, among other acts, rape, sodomy, and oral copulation. By creating a new crime, this bill would impose a state-mandated local program.

(2)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.

 UNFINISHED BUSINESS  

Bill No: SB 1182

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 3/29/16

AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone

SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/27/16

AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen

SENATE FLOOR: 37-0, 5/31/16

AYES: Allen, Anderson, Bates, Beall, Berryhill, Block, Cannella, De León, Fuller, Gaines, Galgiani, Glazer, Hall, Hancock, Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson, Leno, Leyva, Liu, McGuire, Mendoza, Monning, Moorlach, Morrell, Nguyen, Nielsen, Pan, Pavley, Roth, Stone, Vidak, Wieckowski, Wolk

NO VOTE RECORDED: Lara, Mitchell, Runner

ASSEMBLY FLOOR: 77-0, 8/18/16 - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST: This bill provides that possession of gamma hydroxybutyric acid (GHB), flunitrazepam (Rohypnol), or ketamine with the intent to commit a sex crime, as defined, is a felony, punishable pursuant to Penal Code Section 1170 (h) for sixteen months, two years or three years.

Assembly Amendments add Assemblymember Gonzalez as a co-author and make minor technical changes.

ANALYSIS:

Existing law:

1. Provides that the possession of specified controlled substances including ketamine, flunitrazepam, and GHB, unless upon the prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, is a misdemeanor punishable by up to one year in a county jail, except for a person who has one or more prior convictions for a specified violent felony or has been convicted of a prior offense requiring the person to register as a sex offender, then the penalty shall be a felony. (Health & Saf. Code, §§ 11350, subd. (a) and 11377, subd. (a).)
2. 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.)
3. States, except as provided, that every person who possesses for sale or purchases for purposes of sale any of the specified controlled substances, including cocaine and heroin, shall be punished by imprisonment in a county jail for two, three, or four years. (Health & Saf. Code, § 11351.)
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, or give away, or attempts to import into this state or transport cocaine, cocaine base, or heroin, or other specified controlled substances listed in the controlled substance schedule, without a written prescription from a licensed physician, dentist, podiatrist, or veterinarian shall be punished by imprisonment for three, four, or five years. (Health & Saf. Code, § 11352, subd. (a).)
5. States that the possession for sale of methamphetamine, and other specified controlled substances is punishable by imprisonment in a county jail for 16 months, two or three years. (Health & Saf. Code, § 11378.)
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 other specified controlled substances listed in the controlled substance schedule, without a written prescription from a licensed physician, dentist, podiatrist, or veterinarian shall be punished by imprisonment for two, three, or four years. (Health & Saf. Code, § 11379, subd. (a).)
7. States that every person guilty of administering to another any chloroform, ether, laudanum, or any controlled substance, anesthetic, or intoxicating agent, with intent thereby to enable or assist himself or herself or any other person to commit a felony, is guilty of a felony punishable by imprisonment in the state prison for 16 months, or two or three years. (Pen. Code, § 222.)
8. States that rape is an act of sexual intercourse accomplished where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known, by the accused. (Pen. Code, §§ 261, subd. (a)(3); 262, subd. (a)(2).)
9. Specifies felony penalties for any person who commits an act of sodomy, oral copulation or sexual penetration where the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known, by the accused. (Pen. Code, §§ 286, subd. (i); 288a, subd. (i); 289, subd. (e).)

This bill:

1. Provides that a person who possesses gamma hydroxybutyric acid (GHB), ketamine or flunitrazepam, also known by the trade name Rohypnol, with the intent to commit sexual assault, as defined, is guilty of a felony, punishable by imprisonment pursuant to Penal Code Section 1170 (h) for sixteen months, two years or three years.
2. Defines "sexual assault" for the purposes of this bill to include, but not be limited to, violations of specified provisions related to sexual assault committed against a victim who is prevented from resisting by an intoxicating or anesthetic substance, or any controlled substance.
3. States the finding of the Legislature that in order to deter the possession of ketamine, GHB, and Rohypnol by sexual predators and to take steps to prevent the use of these drugs to incapacitate victims for purposes of sexual exploitation, it is necessary and appropriate that an individual who possesses one of these substances for predatory purposes be subject to felony penalties.

Background:

The author states:

In November 2014, Proposition 47 reclassified felonies as misdemeanors. One involved the possession of the drugs Rohypnol, GHB and ketamine—commonly known as “date rape” drugs. Prior to Proposition 47, possession of a date rape drug was punishable as a “wobbler” in which the prosecutor or judge can determine whether a felony or misdemeanor is appropriate. Prop. 47 removed the ability to charge an individual with a felony for possession.

A fundamental difference exists between the possession of recreational drugs meant to be consumed by that individual and the possession of ‘date rape’ drugs when intended to be used on another individual. These drugs will render a sexual assault victim completely incapacitated. Senate Bill 1182 would give prosecutors the ability to bring felony charges against individuals caught in possession of date rape drugs with the intent to commit a sexual assault. Given the difficult nature of prosecuting sexual assault crimes, the Legislature should embrace this opportunity to provide serious consequences for criminals looking to use date rape drugs to facilitate a heinous crime.

Governor Brown vetoed the identical predecessor to this bill - SB 333 (Galgiani) - in 2015. In relevant part, the Governor’s veto message on this and numerous other bills stated:

Each of these bills creates a new crime - usually by finding a novel way to characterize and criminalize conduct that is already proscribed. This multiplication and particularization of criminal behavior creates increasing complexity without commensurate benefit. 

Members may wish to consider whether possession of a drug with intent to commit a sex crime is equivalent to the crime of attempt to commit a sex crime. In many cases, the proof of an attempted sex crime would overlap with proof of possession of a drug with intent to commit a sex crime. An attempt to commit a crime has the following two elements: The defendant intended to commit a crime and he or she took a direct, yet ultimately ineffectual, step towards commission of the crime. An attempted crime would have been completed except for some circumstance prevented the defendant’s commission of the offense. Preparation to commit a crime is not a direct step towards commission of a crime. (People v. Breverman (1998) 19 Cal.4th 142, 154; CALCRIM 406.) Possession of a drug with the intent to commit a sex crime would appear to constitute preparation, not an attempt, under current law, and thus not an attempt.

With the crime defined by this bill - possession of a specified drug with the intent to commit a sex crime - the prosecution would not need to prove that the defendant went beyond preparation. The prosecutor would simply need to prove possession, including exercising control of a drug that is not held on the defendant’s person, with the intent to commit a sex offense. Proof of intent would typically involve the defendant’s admission of such intent or prior convictions and arrests for similar conduct, which are admissible in sex crime prosecutions, unlike prosecutions for other crimes. Jurors find prior convictions or arrests for a similar offense to the one charged to be very powerful evidence.

Defendants with prior sex offenses are excluded from misdemeanor possession of drugs charges under Proposition 47.  However, a simple possession conviction would not reflect that the defendant’s crime was sexually motivated or that he has a history of sex crimes. The crime defined by this bill would clearly reflect the defendant’s criminal sexual intent.

Ketamine is an anesthetic-dissociative drug. It appears to be the drug of choice in pediatric surgery and pain management, as it blocks the sensation of pain without full unconsciousness and depressed respiration. (http://www.ncbi.nlm.nih.gov/pubmed/18645539.) Ketamine is very widely used in African and other countries with low per-capita income levels, as it is effective, cheap and safe. Greater restrictions of ketamine manufacturing and distribution have caused great alarm in Africa among physicians and public health experts. (http://emupdates.com/wp-content/uploads/2011/01/ACEP-Ketamine-Guideline-2011.pdf.)

Ketamine has recently been used as an “off label” drug for the treatment of depression. Patients report that they lose their depressive symptoms quickly and the effect lasts for months. (www.nytimes.com/2014/12/10/business/special-k-a-hallucinogen-raises-hopes-and-concerns-as-a-treatment-for-depression.html?_r=0.) Clinical trials have been conducted or are underway for use of ketamine as a formally recognized depression treatment, with positive results. (http://www.nimh.nih.gov/about/director/2014/ketamine.shtml; http://www.nimh.nih.gov/labs-at-nimh/join-a-study/trials/adult-studies/rapid-antidepressant-effects-of-ketamine.shtml.)

Ketamine is also used for intoxication or mind-altering experiences. Users seek the dissociative experience that would be considered an unwanted or problematic side effect in medial use. Users lose awareness of their surroundings and report vivid hallucinations. Some people found them profound and enjoyable, others found the experience disturbing.

GHB is prescribed to narcoleptics to allow them to sleep deeply at night. It is often used as a so-called “club drug.” (The silent ‘G’” Contemporary Drug Problems, 2012.) It has been described as being similar to alcohol intoxication, but with more euphoric effects, without a hangover the next day. However, users’ experiences are quite variable. GHB is dangerous when mixed with alcohol, as both are central nervous system depressants.

Flunitrazepam is a benzodiazepine, the class of sedative-hypnotic drugs that include Xanax, Valium, and many others. It was developed in 1965. It has been described as 10 times more potent than Valium, but is typically prescribed in doses that are 1/10^th of that of a common Valium dose. It is not available legally in the United States, but it is available around the world. It has been the most widely prescribed drug of its class in Europe. (http://www.cesar.umd.edu/cesar/drugs/rohypnol.asp) It has been successfully used to treat alcoholics suffering from delirium tremens during withdrawal. Flunitrazepam is very widely used by heroin addicts to boost the effects of the drug without risking overdose and to ease withdrawal. (http://www.ncbi.nlm.nih.gov/pubmed/8102333) A University of Illinois study on the extent of drug facilitated sexual assault noted use of the drug by opiate addicts and cocaine users, including rape victims themselves. (Negruz, et al., Estimate of the Incidence of Drug-Facilitated Sexual Assault in the U.S, Univ. of Illinois, Chicago (Nov. 2005).)

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriation Committee:

• State prison commitments: Likely minor, if any, impact on the number of commitments to state prison, as defendants with one or more prior convictions for a serious/violent felony or an offense requiring sex offender registration can already be sentenced to state prison under existing law for simple possession of the controlled substances specified in this measure.
• State prison sentences: Potential future increase in state incarceration costs (General Fund) to the extent the new felony offense of possession with intent to commit sexual assault leads to longer state prison terms than otherwise would have been imposed under existing law for simple possession of these controlled substances for defendants with qualifying prison-eligible prior convictions. To the extent even two defendants are impacted in any one year could increase state incarceration costs by $58,000 based on the estimated contract bed rate of $29,000 per inmate.
• County jail sentences: Potential future increase in local incarceration costs (Local Funds) to the extent convictions for the new felony offense result in longer county jail terms than otherwise would have been imposed under the existing misdemeanor offense of unlawful possession of a specified controlled substance, which carries a maximum term of one year in county jail.

SUPPORT: (Verified 8/17/16)

Association of Orange County Deputy Sheriffs

California College and University Police Chiefs Association

California Correctional Supervisors Association

California District Attorneys Association

California Narcotic Officers Association

California Police Chiefs Association

California State Sheriffs’ Association

California Statewide Law Enforcement Association

Crime Victims United of California

Fraternal Order of Police

Long Beach Police Officers Association

Los Angeles County Professional Peace Officer Association

Los Angeles Deputy Sheriffs Association

Los Angeles Police Protective League

Peace Officers Research Association of California

Riverside Sheriffs Association

Sacramento County Deputy Sheriffs’ Association

OPPOSITION: (Verified 8/17/16)

California Attorneys for Criminal Justice

Legal Services for Prisoners with Children

ASSEMBLY FLOOR: 77-0, 8/18/16

AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Holden, Irwin, Jones, Jones-Sawyer, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon

NO VOTE RECORDED: Dababneh, Roger Hernández, Kim

Prepared by:

8/19/16 19:21:37

**** END ****

SENATE THIRD READING

STR Bill Id:SB 1182

Author:()

As Introduced Ver:August 15, 2016

Majority vote

SENATE VOTE: 37-0

SUMMARY: Makes possession of gamma hydroxybutyric acid (GHB), ketamine, or flunitrazepam, also known as Rohypnol, with the intent to commit sexual assault, as defined, a felony. Specifically, this bill:

1. Defines "sexual assault" for the purposes of this bill to include, but not be limited to, violations of specified provisions related to sexual assault committed against a victim who is prevented from resisting by an intoxicating or anesthetic substance, or any controlled substance.
2. Specifies that this crime is a county jail-eligible felony, punishable by imprisonment for 16 months, or two or three years.
3. States the finding of the Legislature that in order to deter the possession of ketamine, GHB, and Rohypnol by sexual predators and to take steps to prevent the use of these drugs to incapacitate victims for purposes of sexual exploitation, it is necessary and appropriate that an individual who possesses one of these substances for predatory purposes be subject to felony penalties.

EXISTING LAW:

1. Provides that the possession of specified controlled substances including ketamine, flunitrazepam and GHB, unless upon the prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, is a misdemeanor punishable by up to one year in a county jail, except for a person who has one or more prior convictions for a specified violent felony or has been convicted of a prior offense requiring the person to register as a sex offender, then the penalty shall be a felony.
2. 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.
3. States, except as provided, that every person who possesses for sale or purchases for purposes of sale any of the specified controlled substances, including cocaine and heroin, shall be punished by imprisonment in a county jail for two, three, or four years.
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, or give away, or attempts to import into this state or transport cocaine, cocaine base, or heroin, or other specified controlled substances listed in the controlled substance schedule, without a written prescription from a licensed physician, dentist, podiatrist, or veterinarian shall be punished by imprisonment for three, four, or five years.
5. States that the possession for sale of methamphetamine, and other specified controlled substances is punishable by imprisonment in a county jail for 16 months, or two or three years.
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 other specified controlled substances listed in the controlled substance schedule, without a written prescription from a licensed physician, dentist, podiatrist, or veterinarian shall be punished by imprisonment for two, three, or four years.
7. States that every person guilty of administering to another any chloroform, ether, laudanum, or any controlled substance, anesthetic, or intoxicating agent, with intent thereby to enable or assist himself or herself or any other person to commit a felony, is guilty of a felony punishable by imprisonment in the state prison for 16 months, or two or three years.
8. States that rape is an act of sexual intercourse accomplished where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known, by the accused. Rape is generally punishable by imprisonment in state prison for three, six, or eight years.
9. Specifies felony penalties for any person who commits an act of sodomy, oral copulation or sexual penetration where the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known, by the accused.

FISCAL EFFECT: According to the Assembly Committee on Appropriations, potentially moderate ongoing out-year costs in excess of $150,000 (General Fund (GF)) for increased state prison commitments. According to the California Department of Corrections (CDCR), the contracted out-of-state annual bed rate is $29,000. In 2013-14, there were 22 state prison commitments for rape convictions where the victim was prevented from resisting by an intoxicating substance, and an unknown number were prevented. If intent to commit sexual assault, with any of the three substances listed were proven for three individuals per year, the cost to CDCR would be $87,000 (GF) the first year, $174,000 (GF) the second year, etc. for this new crime.

COMMENTS: According to the author, "In November 2014, California voters approved Proposition 47 which reclassified many crimes from felonies to misdemeanors. One of these reclassifications involved the possession of the drugs Rohypnol, GHB and ketamine—commonly known as 'date rape' drugs.

"Prior to Prop. 47, possession of a date rape drug was punishable as a 'wobbler' in which the prosecutor or judge can determine whether a felony or misdemeanor is appropriate based on the facts of the case. Prop. 47 removed the ability to charge an individual with a felony for possession. Possession of a date rape drug is now a mandatory misdemeanor.

"A fundamental difference exists between the possession of recreational drugs meant to be consumed by that individual and the possession of 'date rape' drugs when intended to be used on another individual. These drugs will render a sexual assault victim completely incapacitated. They also result in a victim having little to no memory of the assault which took place. This allows a rapist to escape prosecution because a victim can't remember the details of the crime when questioned in court.

"Concerns have been expressed in the law enforcement community that the new law relating to the possession of date rape drugs can potentially weaken sexual assault statutes and harm public safety.

"Senate Bill 1182 would give prosecutors the ability to bring felony charges against individuals caught in possession of date rape drugs with the intent to commit a sexual assault.

"This will allow prosecutors to bring felony charges against a perpetrator who has been found in possession of these drugs and has taken steps to use them to facilitate a sexual assault.

"Given the difficult nature of prosecuting sexual assault crimes, the Legislature should embrace this opportunity to provide serious consequences for criminals looking to use date rape drugs to facilitate a heinous crime."

Please see the policy committee analysis for a full discussion of this bill.

Analysis Prepared by: Stella Choe / PUB. S. / (916) 319-3744 FN: 0004012

Date of Hearing: June 29, 2016

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

SBPCA Bill Id:SB 1182

Author:(Galgiani) – As Introduced Ver:February 18, 2016

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

SUMMARY:

This bill makes the possession of specified controlled substances (gamma hydroxybutyric acid (GHB), ketamine or flunitrazepam, also known as Rohypnol), with the intent to commit sexual assault, as defined, a felony punishable in the state prison for 16 months or two or three years.

FISCAL EFFECT:

Potentially moderate ongoing out-year costs in excess of $150,000 (GF) for increased state prison commitments. According to the California Department of Corrections (CDCR), the contracted out-of-state annual bed rate is $29,000. In 2013-14, there were 22 state prison commitments for rape convictions where the victim was prevented from resisting by an intoxicating substance, and an unknown number were prevented. If intent to commit sexual assault, with any of the three substances listed were proven for three individuals per year, the cost to CDCR would be $87,000 (GF) the first year, $174,000 (GF) the second year, etc. for this new crime.

COMMENTS:

1. Purpose. According to the author, "In November 2014, California voters approved Proposition 47 which reclassified many crimes from felonies to misdemeanors. One of these reclassifications involved the possession of the drugs Rohypnol, GHB and ketamine—commonly known as 'date rape' drugs. Senate Bill 1182 would give prosecutors the ability to bring felony charges against individuals caught in possession of date rape drugs with the intent to commit a sexual assault.
2. Background. On November 4, 2014, California voters approved Proposition 47, also known as the Safe Neighborhoods and Schools Act, which reduced penalties for certain offenders convicted of nonserious and nonviolent property and drug crimes. Proposition 47 also allows inmates serving sentences for crimes affected by the reduced penalties to apply to be resentenced.

Current law provides that the possession of specified controlled substances including ketamine, flunitrazepam, and GHB, unless upon the prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, is a misdemeanor punishable by up to one year in a county jail, except for a person who has one or more prior convictions for a specified violent felony or has been convicted of a prior offense requiring the person to register as a sex offender, then the penalty is a felony.

Also under current law, every person guilty of administering to another any chloroform, ether, laudanum, or any controlled substance, anesthetic, or intoxicating agent, with intent thereby to enable or assist himself or herself or any other person to commit a felony, is guilty of a felony punishable by imprisonment in the state prison for 16 months, or two or three years. Current law also states that rape is an act of sexual intercourse accomplished where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known, by the accused.

"Club Drugs." Ketamine, GHB, and flunitrazepam are commonly designated as "club drugs" due to their association with raves, nightclubs, concerts, and parties. Other drugs included in this designation are MDMA (ecstasy), methamphetamine, and cocaine. Club drugs became popular in the 1990s and tend to be used by youth and young adults to heighten mood, increase extraversion and physical energy, and intensify the senses.

Although a person may be surreptitiously drugged with Rohypnol, GHB, or ketamine in order to incapacitate that person, it is much more common for a person to consume these drugs voluntarily for their intoxicating effects.

This bill targets persons who possess these drugs for predatory purposes, rather than those who merely possess these drugs for personal use. This will ensure that victims of these crimes who may have consumed these drugs voluntarily prior to being assaulted will not have to fear prosecution of a felony when deciding whether to report the incident.

1. Governor's Veto Message: This bill is identical to SB 333 (Galgiani), of the current legislative session, which was vetoed by the Governor. This bill was among several other criminal justice bills vetoed by the Governor last year signaling the Governor's push for sentencing reform. According to the Governor's veto message:

"Each of these bills creates a new crime - usually by finding a novel way to characterize and criminalize conduct that is already proscribed. This multiplication and particularization of criminal behavior creates increasing complexity without commensurate benefit.

"Over the last several decades, California's criminal code has grown to more than 5,000 separate provisions, covering almost every conceivable form of human misbehavior. During the same period, our jail and prison populations have exploded.

"Before we keep going down this road, I think we should pause and reflect on how our system of criminal justice could be made more human, more just and more cost-effective."

1. Support. According to the California Police Chiefs Association, ""SB 1182 will help keep our communities and college campuses safer by providing law enforcement with the necessary tools to successfully combat the possession and use of predatory drugs."
   
2. Opposition. According to California Attorneys for Criminal Justice, "Longer and harsher prison sentences for possession of drugs runs counter to the express preference of California voters for a shift in priorities toward violent crime and away from punishing drug offenders with longer and longer sentences. Moreover, the circumstance SB 1182 seeks to criminalize, the possession of “date rape” drugs by sexual predators who intend to use them to commit sexual assault, is already criminalized, effectively and severely, by attempt and sexual assault laws.”

"If a prosecutor can credibly allege that a defendant has the intent to commit a sexual assault, then the prosecutor can combine that intent with the possession of the drugs specified by this bill (an act in furtherance) and charge the defendant with attempted sexual assault. Such a charge would be a felony and carry at least as strong a sentence as the new crime contemplated by this bill.

1. Prior Legislation:
   1. AB 46 (Lackey), held on this committee's Suspense file, is nearly identical to this bill.
   2. SB 649 (Leno), of the 2013-2014 Legislative Session, would have made the simple possession for personal use of cocaine, cocaine base, heroin, opium, and other specified narcotics, opiates and hallucinogens listed in the controlled substance schedule an alternate felony/misdemeanor, rather than a straight felony. SB 649 was vetoed. In his message, the Governor cited the realignment legislation as the proper vehicle to examine the current sentencing structure.
      
   3. SB 1506 (Leno), of the 2011-2012 Legislative Session, would have made the unlawful possession of specified controlled substances a misdemeanor. SB 1506 failed passage on the Senate floor.
      
   4. SB 1067 (Horton), of the 2003-2004 Legislative session, would have excluded the drugs GHB, rohypnol, and ketamine from coverage by the term "nonviolent drug possession offense" thereby making possession of these drugs ineligible for probation and drug treatment under Proposition 36, approved by the voters on November 7, 2000. SB 1067 failed passage in Assembly Public Safety.

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

Date of Hearing: June 14, 2016

Counsel: Stella Choe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 1182

Author:(Galgiani) – As Introduced Ver:February 18, 2016

SUMMARY: Makes possession of gamma hydroxybutyric acid (GHB), ketamine, or flunitrazepam, also known as Rohypnol, with the intent to commit sexual assault, as defined, a felony. Specifically, this bill:

1. Defines "sexual assault" for the purposes of this bill to include, but not be limited to, violations of specified provisions related to sexual assault committed against a victim who is prevented from resisting by an intoxicating or anesthetic substance, or any controlled substance.
   
2. Specifies that this crime is a county jail-eligible felony, punishable by imprisonment for 16 months, or two or three years.
   
3. States the finding of the Legislature that in order to deter the possession of ketamine, GHB, and Rohypnol by sexual predators and to take steps to prevent the use of these drugs to incapacitate victims for purposes of sexual exploitation, it is necessary and appropriate that an individual who possesses one of these substances for predatory purposes be subject to felony penalties.

EXISTING LAW:

1. Provides that the possession of specified controlled substances including ketamine, flunitrazepam and GHB, unless upon the prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, is a misdemeanor punishable by up to one year in a county jail, except for a person who has one or more prior convictions for a specified violent felony or has been convicted of a prior offense requiring the person to register as a sex offender, then the penalty shall be a felony. (Health & Saf. Code, §§ 11350, subd. (a) and 11377, subd. (a).)
   
2. 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.)
   
3. States, except as provided, that every person who possesses for sale or purchases for purposes of sale any of the specified controlled substances, including cocaine and heroin, shall be punished by imprisonment in a county jail for two, three, or four years. (Health & Saf. Code, § 11351.)
   
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, or give away, or attempts to import into this state or transport cocaine, cocaine base, or heroin, or other specified controlled substances listed in the controlled substance schedule, without a written prescription from a licensed physician, dentist, podiatrist, or veterinarian shall be punished by imprisonment for three, four, or five years. (Health & Saf. Code, § 11352, subd. (a).)
   
5. States that the possession for sale of methamphetamine, and other specified controlled substances is punishable by imprisonment in a county jail for 16 months, or two or three years. (Health & Saf. Code, § 11378.)
   
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 other specified controlled substances listed in the controlled substance schedule, without a written prescription from a licensed physician, dentist, podiatrist, or veterinarian shall be punished by imprisonment for two, three, or four years. (Health & Saf. Code, § 11379, subd. (a).)
   
7. States that every person guilty of administering to another any chloroform, ether, laudanum, or any controlled substance, anesthetic, or intoxicating agent, with intent thereby to enable or assist himself or herself or any other person to commit a felony, is guilty of a felony punishable by imprisonment in the state prison for 16 months, or two or three years. (Pen. Code, § 222.)
   
8. States that rape is an act of sexual intercourse accomplished where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known, by the accused. Rape is generally punishable by imprisonment in state prison for three, six, or eight years. (Pen. Code, §§ 261, subd. (a)(3); 262, subd. (a)(2); 264.)
   
9. Specifies felony penalties for any person who commits an act of sodomy, oral copulation or sexual penetration where the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known, by the accused. (Pen. Code, §§ 286, subd. (i); 288a, subd. (i); 289, subd. (e).)

FISCAL EFFECT: Unknown

COMMENTS:

1. Author's Statement: According to the author, "In November 2014, California voters approved Proposition 47 which reclassified many crimes from felonies to misdemeanors. One of these reclassifications involved the possession of the drugs Rohypnol, GHB and ketamine—commonly known as 'date rape' drugs.

"Prior to Prop. 47, possession of a date rape drug was punishable as a 'wobbler' in which the prosecutor or judge can determine whether a felony or misdemeanor is appropriate based on the facts of the case. Prop. 47 removed the ability to charge an individual with a felony for possession. Possession of a date rape drug is now a mandatory misdemeanor.

"A fundamental difference exists between the possession of recreational drugs meant to be consumed by that individual and the possession of ‘date rape’ drugs when intended to be used on another individual. These drugs will render a sexual assault victim completely incapacitated. They also result in a victim having little to no memory of the assault which took place. This allows a rapist to escape prosecution because a victim can’t remember the details of the crime when questioned in court.

"Concerns have been expressed in the law enforcement community that the new law relating to the possession of date rape drugs can potentially weaken sexual assault statutes and harm public safety.

"Senate Bill 1182 would give prosecutors the ability to bring felony charges against individuals caught in possession of date rape drugs with the intent to commit a sexual assault.

"This will allow prosecutors to bring felony charges against a perpetrator who has been found in possession of these drugs and has taken steps to use them to facilitate a sexual assault.

"Given the difficult nature of prosecuting sexual assault crimes, the Legislature should embrace this opportunity to provide serious consequences for criminals looking to use date rape drugs to facilitate a heinous crime."

1. Governor's Veto Message: This bill is identical to SB 333 (Galgiani), of the current legislative session, which was vetoed by the Governor. This bill was among several other criminal justice bills vetoed by the Governor last year signaling the Governor's push for sentencing reform. According to the Governor's veto message:
   
   "Each of these bills creates a new crime - usually by finding a novel way to characterize and criminalize conduct that is already proscribed. This multiplication and particularization of criminal behavior creates increasing complexity without commensurate benefit.
   
   "Over the last several decades, California's criminal code has grown to more than 5,000 separate provisions, covering almost every conceivable form of human misbehavior. During the same period, our jail and prison populations have exploded.
   
   "Before we keep going down this road, I think we should pause and reflect on how our system of criminal justice could be made more human, more just and more cost-effective."
   
2. Proposition 47: On November 4, 2014, California voters approved Proposition 47, also known as the Safe Neighborhoods and Schools Act, which reduced penalties for certain offenders convicted of nonserious and nonviolent property and drug crimes. Proposition 47 also allows inmates serving sentences for crimes affected by the reduced penalties to apply to be resentenced.
   
   According to the California Secretary of State's web site, 59.6 percent of voters approved Proposition 47. (See <http://elections.cdn.sos.ca.gov/sov/2014-general/pdf/2014-complete-sov.pdf> [as of Mar. 14, 2015].) The purpose of the measure was "to maximize alternatives for nonserious, nonviolent crime, and to invest the savings generated from this act into prevention and support programs in K–12 schools, victim services, and mental health and drug treatment." (Ballot Pamp., Gen. Elec. (Nov. 4, 2014), Text of Proposed Laws, p. 70.) One of the ways the measure created savings was by requiring misdemeanor penalties instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession for personal use, unless the defendant has prior convictions for specified violent crimes. (Ibid.)
   
   Four months into its implementation, Proposition 47 had resulted in fewer inmates in state prisons and county jails. According to the Legislative Analysts' Office (LAO), "As of January 28, 2015, the inmate population in the state's prisons was about 113,500, or 3,600

inmates below the February 2015 cap, and slightly below the final February 2016 cap. The expected impact of Proposition 47 on the prison population will make it easier for the state to remain below the population cap." (LAO, The 2015-16 Budget: Implementation of Proposition 47 (Feb. 2015), p. 10.) The LAO report also found that Proposition 47 will likely reduce the costs of criminal justice for counties, by freeing up jail beds and reducing the time probation departments need to follow prisoners after they are released. (Id. at p. 17.)

In its most recent report on the fiscal impact of Proposition 47, the LAO estimated that the savings resulting from the implementation of Proposition 47 is approximately $100 million more than what was estimated by the administration. (LAO, The 2016-2016 Budget: Implementation of Proposition 47 (Feb. 2016), p. 11.)

1. California Constitutional Limitations on Amending a Voter Initiative:  Because Proposition 47 was a voter initiative, the Legislature may not amend the statute without subsequent voter approval unless the initiative permits such amendment, and then only upon whatever conditions the voters attached to the Legislature's amendatory powers.  (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 568; see also Cal. Const., art. II, § 10, subd. (c).)  The California Constitution states, "The Legislature may amend or repeal referendum statutes.  It may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval."  (Cal. Const., art. II, § 10, subd. (c).) Therefore, unless the initiative expressly authorizes the Legislature to amend, only the voters may alter statutes created by initiative. 
   
   The purpose of California's constitutional limitation on the Legislature's power to amend initiative statutes is to protect the people's initiative powers by precluding the Legislature from undoing what the people have done, without the electorate's consent.  Courts have a duty to jealously guard the people's initiative power and, hence, to apply a liberal construction to this power wherever it is challenged in order that the right to resort to the initiative process is not improperly annulled by a legislative body.  (Proposition 103 Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th 1473.)  Yet, despite the strict bar on the Legislature's authority to amend initiative statutes, judicial decisions have recognized that the Legislature is not thereby precluded from enacting laws addressing the general subject matter of an initiative.  The Legislature remains free to address a "related but distinct area" or a matter that an initiative measure "does not specifically authorize or prohibit." (People v. Kelly (2010) 47 Cal.4th 1008, 1025-1026.)
   
   As to the Legislature's authority to amend the initiative, Proposition 47 states:  "This act shall be broadly construed to accomplish its purposes.  The provisions of this measure may be amended by a two‑thirds vote of the members of each house of the Legislature and signed by the Governor so long as the amendments are consistent with and further the intent of this act. The Legislature may by majority vote amend, add, or repeal provisions to further reduce the penalties for any of the offenses addressed by this act."  (Ballot Pamp., Gen. Elec. (Nov. 4, 2014), Text of Proposed Laws, p. 74.)
   
   This bill does not affect Proposition 47's misdemeanor penalties for simple possession of drugs. Similar to the statutes that require specific intent to sell controlled substances which remain felonies, this bill will require specific intent to commit sexual assault in order to charge a defendant with a felony. Because the bill as amended does not affect Proposition 47, this bill does not have to go before the voters.
   
2. Drug-Facilitated Sexual Assault Statistics: Although a person may be surreptitiously drugged with Rohypnol, GHB, or ketamine in order to incapacitate that person, it is much more common for a person to consume these drugs voluntarily for its intoxicating effects.
   
   One study, funded by the National Institute of Justice, examined the prevalence, nature, and reporting of various types of sexual assault experienced by college students. (Krebs, et al., The Campus Sexual Assault Study, National Institute of Justice (Oct. 2007).) The researchers worked with two large, public universities to collect data from over 6,800 undergraduate students (5,466 women and 1,375 men). The data indicated that 7.8% of women were sexually assaulted when they were incapacitated after voluntarily consuming drugs and/or alcohol and 0.6% were sexually assaulted when they were incapacitated after having been given a drug without their knowledge. (Id. at p. iv; see also Section 6-1.) The study found that the majority of the sexual assault victims that were incapacitated reported having consumed alcohol (89%) or being intoxicated prior to being assaulted (82%). (Id. at Section 5.1.3.)

Another study conducted by the University of Illinois at Chicago, funded by the U.S. Department of Justice, worked with four clinics (Texas, California, Minnesota, and Washington State) to study the prevalence of drugs in sexual assault cases received by these clinics. (Negruz, et al., Estimate of the Incidence of Drug-Facilitated Sexual Assault in the U.S, Univ. of Illinois, Chicago (Nov. 2005).) The study used self-reporting surveys as well as toxicological analyses of the subjects. The drugs inquired about in the self-reporting survey included marijuana, cocaine, and amphetamines. These three drugs were chosen because they are not normally given surreptitiously. (Id. at pp. 7-8.) The toxicological analyses tested for those three drugs, as well as other drugs that are often considered "date rape drugs" which include Rohypnol, GHB, ketamine, clonazepam and scopolamine. (Id. at p. 112.) Testing positive for one of these drugs could be due to several different reasons: valid prescription use by the subject, recreational drug use by the subject, surreptitious drug administration by a potential assailant, or, in the case of GHB, endogenous levels because GHB exists naturally in the human body. (Id. at pp. 112-113.)

Among the 144 participants, 61.8% tested positive for one of the drugs being analyzed in the study. (Negruz, Estimate of the Incidence of Drug-Facilitated Sexual Assault in the U.S, supra, at p. 2.) The drugs separated out as "date rape" drugs were found in seven subjects (4.86%), of which three had a prescription. No one admitted to having a prescription for GHB, or using it recreationally, and GHB was only found in levels considered to be endogenous. (Id. at p. 113.) However, the study does note that GHB has a short detection time of 10-12 hours and because only four subjects reported to the clinic within 12 hours, if any of the subjects had been given GHB, the levels would have been undetectable. (Id. at p. 121.) Ketamine and scopolamine were not reported to by any of the subjects in the surveys, and were not found. Flunitrazepam (Rohypnol) was not admitted to by anyone, but was found in four subjects. (Id. at p. 113.) However, when tested a second time a week later, some of these subjects tested positive for flunitrazepam again, indicating that the subjects are likely recreational users of the drug but did not report it in the survey. (Id. at pp. 89, 189.) Based on these results, the study concluded that most of the subjects positive for these drugs had taken them by their own accord and not received them surreptitiously. (Id. at p. 189.)

The study also evaluated whether participants truthfully reported their drug use. The number of subjects who admitted to taking drugs voluntarily was 40%, as compared to the 61.8% of subjects who tested positive for one of the analyzed drugs. (Negruz, Estimate of the Incidence of Drug-Facilitated Sexual Assault in the U.S, supra, at p. 190.) Researchers hypothesized that the subjects' under-reporting of their drug usage may be attributed to the fact that the drugs being analyzed are illegal and a person may face prosecution for its use, or that the subjects may have felt that that their recreational use of illegal drugs could negatively affect the course of a sexual assault prosecution. (Id. at pp. 16, 190.)

While drug-facilitated sexual assault is a serious problem, these studies confirm that it occurs most often after an individual's own recreational use of drugs, rather than surreptitious drugging by another person. Drugs such as Rohypnol, ketamine and GHB may be used to facilitate sexual assault of an incapacitated person, but these are not the only drugs that can be used, nor are they the most commonly used. The substance that is most commonly found in sexual assault victims is alcohol. (Krebs, The Campus Sexual Assault Study, supra at p. 89; also see Grimes, Alcohol is by far the most dangerous "date rape drug" (Sept. 22, 2014) The Guardian, <http://www.theguardian.com/science/blog/2014/sep/22/alcohol-date-rape-drug-facilitated-sexual-assault-dfsa> [as of June 8, 2016].)

This bill targets persons who possess these drugs for predatory purposes, rather than those who merely possess these drugs for personal use. This will ensure that victims of these crimes who may have consumed these drugs voluntarily prior to being assaulted will not have to fear prosecution of a felony when deciding to whether to report the incident.

1. Argument in Support: According to the California Police Chiefs Association, "In November 2014, California voters approved Proposition 47 which reclassified many crimes, including the possession of narcotics, from felonies to misdemeanors. By broadly reclassifying personal narcotic possession from a felony to a misdemeanor, Proposition 47 reduced the penalties for the possession of predatory drugs.
   
   "SB 1182 will help keep our communities and college campuses safer by providing law enforcement with the necessary tools to successfully combat the possession and use of predatory drugs."
   
2. Argument in Opposition: According to California Attorneys for Criminal Justice, "Longer and harsher prison sentences for possession of drugs runs counter to the express preference of California voters for a shift in priorities toward violent crime and away from punishing drug offenders with longer and longer sentences. Moreover, the circumstance SB 1182 seeks to criminalize, the possession of “date rape” drugs by sexual predators who intend to use them to commit sexual assault, is already criminalized, effectively and severely, by attempt and sexual assault laws.

"If a prosecutor can credibly allege that a defendant has the intent to commit a sexual assault, then the prosecutor can combine that intent with the possession of the drugs specified by this bill (an act in furtherance) and charge the defendant with attempted sexual assault. Such a charge would be a felony and carry at least as strong a sentence as the new crime contemplated by this bill.

"SB 1182 is seeking another bite at the apple. Last year, the legislature passed this exact bill, then entitled SB 333, seeking to re-felonize possession of Ketamine, GHB and Rohypnol, and it was summarily vetoed by Governor Brown, along with several other bills seeking to create brand new crimes."

1. Related Legislation:
   
   1. SB 333 (Galgiani) was identical to this bill. SB 333 was vetoed.
      
   2. AB 46 (Lackey) was substantially similar to this bill. AB 46 was held in the Committee on Appropriations' Suspense file.
      
2. Prior Legislation:
   
   1. SB 649 (Leno), of the 2013-2014 Legislative Session, would have made the simple possession for personal use of cocaine, cocaine base, heroin, opium, and other specified narcotics, opiates and hallucinogens listed in the controlled substance schedule an alternate felony/misdemeanor, rather than a straight felony. SB 649 was vetoed.
      
   2. SB 1506 (Leno), of the 2011-2012 Legislative Session, would have made the unlawful possession of specified controlled substances a misdemeanor. SB 1506 failed passage on the Senate floor.
      
   3. SB 1067 (Horton), of the 2003-2004 Legislative session, would have excluded the drugs GHB, Rohypnol, and ketamine from coverage by the term "nonviolent drug possession offense" thereby making possession of these drugs ineligible for probation and drug treatment under Proposition 36, approved by the voters on November 7, 2000. SB 1067 failed passage in this Committee.
      

REGISTERED SUPPORT / OPPOSITION:

Support

Alameda County District Attorney's Office

Association of Orange County Deputy Sheriffs' Association

California District Attorneys Association

California Peace Officers Association

California Police Chiefs Association

California State Sheriffs' Association

California Statewide Law Enforcement Agency

Dave Jones, Insurance Commissioner

Fraternal Order of Police

Long Beach Police Officers Association

Peace Officers Research Association of California

Sacramento County Deputy Sheriffs' Association

Opposition

California Attorneys for Criminal Justice

Legal Services for Prisoners with Children

Analysis Prepared by: Stella Choe / PUB. S. / (916) 319-3744

 THIRD READING  

Bill No: SB 1182

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 3/29/16

AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone

SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/27/16

AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen

SUBJECT:

SOURCE: Author

DIGEST: This bill provides that possession of gamma hydroxybutyric acid (GHB), flunitrazepam (Rohypnol), or ketamine with the intent to commit a sex crime, as defined, is a felony, punishable pursuant to Penal Code Section 1170 (h) for sixteen months, two years or three years.

ANALYSIS:

Existing law:

1. Provides that the possession of specified controlled substances including ketamine, flunitrazepam, and GHB, unless upon the prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, is a misdemeanor punishable by up to one year in a county jail, except for a person who has one or more prior convictions for a specified violent felony or has been convicted of a prior offense requiring the person to register as a sex offender, then the penalty shall be a felony. (Health & Saf. Code, §§ 11350, subd. (a) and 11377, subd. (a).)
2. 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.)
3. States, except as provided, that every person who possesses for sale or purchases for purposes of sale any of the specified controlled substances, including cocaine and heroin, shall be punished by imprisonment in a county jail for two, three, or four years. (Health & Saf. Code, § 11351.)
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, or give away, or attempts to import into this state or transport cocaine, cocaine base, or heroin, or other specified controlled substances listed in the controlled substance schedule, without a written prescription from a licensed physician, dentist, podiatrist, or veterinarian shall be punished by imprisonment for three, four, or five years. (Health & Saf. Code, § 11352, subd. (a).)
5. States that the possession for sale of methamphetamine, and other specified controlled substances is punishable by imprisonment in a county jail for 16 months, two or three years. (Health & Saf. Code, § 11378.)
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 other specified controlled substances listed in the controlled substance schedule, without a written prescription from a licensed physician, dentist, podiatrist, or veterinarian shall be punished by imprisonment for two, three, or four years. (Health & Saf. Code, § 11379, subd. (a).)
7. States that every person guilty of administering to another any chloroform, ether, laudanum, or any controlled substance, anesthetic, or intoxicating agent, with intent thereby to enable or assist himself or herself or any other person to commit a felony, is guilty of a felony punishable by imprisonment in the state prison for 16 months, or two or three years. (Pen. Code, § 222.)
8. States that rape is an act of sexual intercourse accomplished where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known, by the accused. (Pen. Code, §§ 261, subd. (a)(3); 262, subd. (a)(2).)
9. Specifies felony penalties for any person who commits an act of sodomy, oral copulation or sexual penetration where the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known, by the accused. (Pen. Code, §§ 286, subd. (i); 288a, subd. (i); 289, subd. (e).)

This bill:

1. Provides that a person who possesses gamma hydroxybutyric acid (GHB), ketamine or flunitrazepam, also known by the trade name Rohypnol, with the intent to commit sexual assault, as defined, is guilty of a felony, punishable by imprisonment pursuant to Penal Code Section 1170 (h) for sixteen months, two years or three years.
2. Defines "sexual assault" for the purposes of this bill to include, but not be limited to, violations of specified provisions related to sexual assault committed against a victim who is prevented from resisting by an intoxicating or anesthetic substance, or any controlled substance.
3. States the finding of the Legislature that in order to deter the possession of ketamine, GHB, and Rohypnol by sexual predators and to take steps to prevent the use of these drugs to incapacitate victims for purposes of sexual exploitation, it is necessary and appropriate that an individual who possesses one of these substances for predatory purposes be subject to felony penalties.

Background:

The author states:

In November 2014, Proposition 47 reclassified felonies as misdemeanors. One involved the possession of the drugs Rohypnol, GHB and ketamine—commonly known as “date rape” drugs. Prior to Proposition 47, possession of a date rape drug was punishable as a “wobbler” in which the prosecutor or judge can determine whether a felony or misdemeanor is appropriate. Prop. 47 removed the ability to charge an individual with a felony for possession.

A fundamental difference exists between the possession of recreational drugs meant to be consumed by that individual and the possession of ‘date rape’ drugs when intended to be used on another individual. These drugs will render a sexual assault victim completely incapacitated. Senate Bill 1182 would give prosecutors the ability to bring felony charges against individuals caught in possession of date rape drugs with the intent to commit a sexual assault. Given the difficult nature of prosecuting sexual assault crimes, the Legislature should embrace this opportunity to provide serious consequences for criminals looking to use date rape drugs to facilitate a heinous crime.

Governor Brown vetoed the identical predecessor to this bill - SB 333 (Galgiani) - in 2015. In relevant part, the Governor’s veto message on this and numerous other bills stated:

Each of these bills creates a new crime - usually by finding a novel way to characterize and criminalize conduct that is already proscribed. This multiplication and particularization of criminal behavior creates increasing complexity without commensurate benefit. 

Members may wish to consider whether possession of a drug with intent to commit a sex crime is equivalent to the crime of attempt to commit a sex crime. In many cases, the proof of an attempted sex crime would overlap with proof of possession of a drug with intent to commit a sex crime. An attempt to commit a crime has the following two elements: The defendant intended to commit a crime and he or she took a direct, yet ultimately ineffectual, step towards commission of the crime. An attempted crime would have been completed except for some circumstance prevented the defendant’s commission of the offense. Preparation to commit a crime is not a direct step towards commission of a crime. (People v. Breverman (1998) 19 Cal.4th 142, 154; CALCRIM 406.) Possession of a drug with the intent to commit a sex crime would appear to constitute preparation, not an attempt, under current law, and thus not an attempt.

With the crime defined by this bill - possession of a specified drug with the intent to commit a sex crime - the prosecution would not need to prove that the defendant went beyond preparation. The prosecutor would simply need to prove possession, including exercising dominion and control of a drug that is not held on the defendant’s person, with the intent to commit a sex offense. Proof of intent would typically involve the defendant’s admission of such intent or prior convictions and arrests for similar conduct, which are admissible in sex crime prosecutions, unlike prosecutions for other crimes. Jurors find prior convictions or arrests for a similar offense to the one charged to be very powerful evidence. The fact that jurors will likely rely on a prior conviction in weighing a defendant’s guilt than the evidence about the current offense is precisely why prior conviction evidence is generally inadmissible.

Defendants with prior sex offenses are excluded from misdemeanor possession of drugs charges under Proposition 47.  However, a simple possession conviction would not reflect that the defendant’s crime was sexually motivated or that he has a history of sex crimes. The crime defined by this bill would clearly reflect the defendant’s criminal sexual intent.

Ketamine is an anesthetic-dissociative drug. It appears to be the drug of choice in pediatric surgery and pediatric emergency pain management, as it blocks the sensation of pain without full unconsciousness and depressed respiration. (http://www.ncbi.nlm.nih.gov/pubmed/18645539.) Ketamine is very widely used in African and other countries with low per-capita income levels, as it is effective, cheap and safe. Greater restrictions of ketamine manufacturing and distribution have caused great alarm in Africa among physicians and public health experts. (http://emupdates.com/wp-content/uploads/2011/01/ACEP-Ketamine-Guideline-2011.pdf.)

Ketamine has recently been used as an “off label” drug for the treatment of depressions. Patients report that they lose their depressive symptoms quickly and the effect lasts for months. (www.nytimes.com/2014/12/10/business/special-k-a-hallucinogen-raises-hopes-and-concerns-as-a-treatment-for-depression.html?_r=0.) Clinical trials have been conducted or are underway for use of ketamine as a formally recognized depression treatment. The results of the trials have been remarkably positive. (http://www.nimh.nih.gov/about/director/2014/ketamine.shtml; http://www.nimh.nih.gov/labs-at-nimh/join-a-study/trials/adult-studies/rapid-antidepressant-effects-of-ketamine.shtml.)

Ketamine is used for intoxication or mind-altering experiences. Users seek the dissociative experience that would be considered an unwanted or problematic side effect in medial use. Users lose awareness of their surroundings and report vivid hallucinations. Some people found them profound and enjoyable, others found the experience disturbing.

GHB is prescribed to narcoleptics to allow them to sleep deeply at night. It is often used as a so-called “club drug.” (The silent ‘G’” Contemporary Drug Problems, 2012.) It has been described as being similar to alcohol intoxication, but with more euphoric effects, without a hangover the next day. However, users’ experiences are quite variable. GHB is dangerous when mixed with alcohol, as both are central nervous system depressants.

Flunitrazepam is a benzodiazepine, the class of sedative-hypnotic drugs that include Xanax, Valium, and many others. It was developed in 1965. It has been described as 10 times more potent than Valium, but is typically prescribed in doses that are 1/10^th of that of a common Valium dose. It is not available legally in the United States, but it is available around the world. It has been the most widely prescribed drug of its class in Europe. (http://www.cesar.umd.edu/cesar/drugs/rohypnol.asp) It has been successfully used to treat alcoholics suffering from delirium tremens during withdrawal.

Flunitrazepam is very widely used by heroin addicts to boost the effects of the drug without risking overdose and to ease withdrawal. (http://www.ncbi.nlm.nih.gov/pubmed/8102333) A University of Illinois study on the extent of drug facilitated sexual assault noted use of the drug by opiate addicts and cocaine users, including rape victims themselves. (Negruz, et al., Estimate of the Incidence of Drug-Facilitated Sexual Assault in the U.S, Univ. of Illinois, Chicago (Nov. 2005).)

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriation Committee:

• State prison commitments: Likely minor, if any, impact on the number of commitments to state prison, as defendants with one or more prior convictions for a serious/violent felony or an offense requiring sex offender registration can already be sentenced to state prison under existing law for simple possession of the controlled substances specified in this measure.
• State prison sentences: Potential future increase in state incarceration costs (General Fund) to the extent the new felony offense of possession with intent to commit sexual assault leads to longer state prison terms than otherwise would have been imposed under existing law for simple possession of these controlled substances for defendants with qualifying prison-eligible prior convictions. To the extent even two defendants are impacted in any one year could increase state incarceration costs by $58,000 based on the estimated contract bed rate of $29,000 per inmate.
• County jail sentences: Potential future increase in local incarceration costs (Local Funds) to the extent convictions for the new felony offense result in longer county jail terms than otherwise would have been imposed under the existing misdemeanor offense of unlawful possession of a specified controlled substance, which carries a maximum term of one year in county jail.

SUPPORT: (Verified 5/27/16)

Association of Orange County Deputy Sheriffs

California College and University Police Chiefs Association

California Correctional Supervisors Association

California District Attorneys Association

California Narcotic Officers Association

California Police Chiefs Association

California State Sheriffs’ Association

California Statewide Law Enforcement Association

Crime Victims United of California

Fraternal Order of Police

Long Beach Police Officers Association

Los Angeles County Professional Peace Officer Association

Los Angeles Deputy Sheriffs Association

Los Angeles Police Protective League

Peace Officers Research Association of California

Riverside Sheriffs Association

Sacramento County Deputy Sheriffs’ Association

OPPOSITION: (Verified 5/27/16)

California Attorneys for Criminal Justice

Legal Services for Prisoners with Children

Prepared by:

5/28/16 17:15:09

**** END ****

SENATE COMMITTEE ON

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

SB 1182 (Galgiani) - Controlled substances

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

Bill Summary:

SB 1182 would make it a felony, punishable pursuant to Penal Code section 1170, subdivision (h), for a term of 16 months, two years or three years, to possess ketamine, flunitrazepam, or gamma hydroxybutyric acid (GHB), with the intent to commit sexual assault, as specified.

Fiscal Impact:

• State prison commitments: Likely minor, if any, impact on the number of commitments to state prison, as defendants with one or more prior convictions for a serious/violent felony or an offense requiring sex offender registration can already be sentenced to state prison under existing law for simple possession of the controlled substances specified in this measure.
• State prison sentences: Potential future increase in state incarceration costs (General Fund) to the extent the new felony offense of possession with intent to commit sexual assault leads to longer state prison terms than otherwise would have been imposed under existing law for simple possession of these controlled substances for defendants with qualifying prison-eligible prior convictions. To the extent even two defendants are impacted in any one year could increase state incarceration costs by $58,000 based on the estimated contract bed rate of $29,000 per inmate.
• County jail sentences: Potential future increase in local incarceration costs (Local Funds) to the extent convictions for the new felony offense result in longer county jail terms than otherwise would have been imposed under the existing misdemeanor offense of unlawful possession of a specified controlled substance, which carries a maximum term of one year in county jail.

Background:

Existing law provides that the possession of specified controlled substances including ketamine, flunitrazepam and GHB, unless upon the prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, is a misdemeanor punishable by up to one year in a county jail, except for a person who has one or more prior convictions for a specified serious or violent felony or has been convicted of a registerable sex offense, in which case the offense is punishable as a felony subject to imprisonment for 16 months, two years or three years in state prison. (Health & Safety Code (HSC) §§ 11350(a), 11377(a).)

Prior to the passage of Proposition 47, the Safe Neighborhoods and Schools Act, which was approved by the voters in November 2014, the unlawful possession of specified controlled substances, including flunitrazepam and GHB, was an alternate felony-misdemeanor, and the unlawful possession of ketamine was punishable as a misdemeanor.

This bill does not affect Proposition 47 to the extent it is determined that the provisions of this measure go beyond the act of simple possession of the specified controlled substances to require specific intent to commit a sexual assault in order to charge a defendant with the felony offense.

Proposed Law:

This bill would provide that possession of ketamine, flunitrazepam, or GHB with the intent to commit sexual assault, as defined, is a felony, punishable by a county jail term (or a state prison term if the defendant has a current or prior serious or violent felony conviction, is required to register as a sex offender, or meets other qualifying factors) of 16 months, two years, or three years. This bill:

• Provides that for purposes of this measure, “sexual assault” means conduct in violation of specified provisions related to sexual assault committed against a victim who is prevented from resisting by an intoxicating or anesthetic substance, or any controlled substance (PC §§ 243.4, 261, 262, 286, 288a, or 289).
• Includes Legislative findings and declarations which, among other things, state that in order to deter the possession of ketamine, GHB, and flunitrazepam by sexual predators and to take steps to prevent the use of these drugs to incapacitate victims for purposes of sexual exploitation, it is necessary and appropriate that an individual who possesses one of these substances for predatory purposes be subject to felony penalties.

Related Legislation:

SB 333 (Galgiani) 2015 as enrolled and presented to the Governor was identical to this bill. This bill, along with eight other bills creating new crimes, was vetoed by the Governor with the following message:

Each of these bills creates a new crime - usually by finding a novel way to characterize and criminalize conduct that is already proscribed. This multiplication and particularization of criminal behavior creates increasing complexity without commensurate benefit. 

Over the last several decades, California's criminal code has grown to more than 5,000 separate provisions, covering almost every conceivable form of human misbehavior. During the same period, our jail and prison populations have exploded. 

Before we keep going down this road, I think we should pause and reflect on how our system of criminal justice could be made more human, more just and more cost-effective. 

Staff Comments:

This bill provides that the possession of GHB, ketamine, or flunitrazepam with the intent to commit sexual assault is a felony offense, punishable by a term of 16 months, two years or three years in county jail, unless a defendant has a current or prior serious or violent felony conviction, must register as a sex offender, or meets other qualifying factors, in which case the felony term must be served in state prison.

Under existing law, a defendant with one or more prior convictions for a serious or violent felony or an offense requiring sex offender registration can already be sentenced to state prison for unlawful possession of GHB, ketamine, or flunitrazepam. As a result, it is estimated there would likely be a minor, if any, impact to the number of commitments to state prison resulting from the new felony offense.

Although no significant impact to the number of state prison commitments is anticipated, to the extent the new felony offense of unlawful possession of GHB, ketamine, or flunitrazepam with intent to commit sexual assault leads to longer state prison terms than otherwise would have been imposed upon defendants with qualifying prison-eligible prior convictions under existing law for unlawful possession of these specified controlled substances could result in a future increase in state incarceration costs (General Fund).

Likewise, to the extent the new felony offense of possession with intent to commit sexual assault leads to longer county jail terms than otherwise would have been imposed under the existing misdemeanor offense of unlawful possession of the specified controlled substances, which has a maximum jail term of one year, this bill could increase costs to local law enforcement agencies for incarceration (Local Funds).

The costs of this bill are unclear, however, as the potential impact will be determined by numerous factors including but not limited to the behavior and charging decisions of prosecutors, judicial discretion, and the prior criminal history of each defendant charged with the new felony offense.

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SENATE COMMITTEE ON PUBLIC SAFETY

Senator Loni Hancock, Chair

2015 - 2016 Regular

Bill No: SB 1182 Hearing Date: March 29, 2016

Subject: Controlled Substances

HISTORY

Source: Author

Prior Legislation: SB 333 (Galgiani) – Vetoed, 2015

Support: Los Angeles Deputy Sheriffs Association; California College and University Police Chiefs Association; California Correctional Supervisors Association; California Narcotic Officers Association; California Police Chiefs Association; Los Angeles County Professional Peace Officer Association; Crime Victims United of California; Los Angeles Police Protective League; Riverside Sheriffs Association; California District Attorneys Association; Peace Officers Research Association of California; California State Sheriffs’ Association; Fraternal Order of Police; Association of Orange County Deputy Sheriffs; Long Beach Police Officers Association; California Statewide Law Enforcement Association; Sacramento County Deputy Sheriffs’ Association;

Opposition: California Attorneys for Criminal Justice; Legal Services for Prisoners with Children

PURPOSE

The purpose of this bill is to provide that possession of gamma hydroxybutyric acid (GHB), flunitrazepam (Rohypnol), or ketamine with the intent to commit a sex crime, as defined, is a felony, punishable pursuant to Penal Code Section 1170 (h) for sixteen months, two years or three years.

Existing law provides that the possession of specified controlled substances including ketamine, flunitrazepam, and GHB, unless upon the prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, is a misdemeanor punishable by up to one year in a county jail, except for a person who has one or more prior convictions for a specified violent felony or has been convicted of a prior offense requiring the person to register as a sex offender, then the penalty shall be a felony. (Health & Saf. Code, §§ 11350, subd. (a) and 11377, subd. (a).)

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 states, except as provided, that every person who possesses for sale or purchases for purposes of sale any of the specified controlled substances, including cocaine and heroin, shall be punished by imprisonment in a county jail for two, three, or four years. (Health & Saf. Code, § 11351.)

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, or give away, or attempts to import into this state or transport cocaine, cocaine base, or heroin, or other specified controlled substances listed in the controlled substance schedule, without a written prescription from a licensed physician, dentist, podiatrist, or veterinarian shall be punished by imprisonment for three, four, or five years. (Health & Saf. Code, § 11352, subd. (a).)

Existing law states that the possession for sale of methamphetamine, and other specified controlled substances is punishable by imprisonment in a county jail for 16 months, two or three years. (Health & Saf. Code, § 11378.)

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, or give away, or attempts to import into this state or transport methamphetamine, or other specified controlled substances listed in the controlled substance schedule, without a written prescription from a licensed physician, dentist, podiatrist, or veterinarian shall be punished by imprisonment for two, three, or four years. (Health & Saf. Code, § 11379, subd. (a).)

Existing law states that every person guilty of administering to another any chloroform, ether, laudanum, or any controlled substance, anesthetic, or intoxicating agent, with intent thereby to enable or assist himself or herself or any other person to commit a felony, is guilty of a felony punishable by imprisonment in the state prison for 16 months, or two or three years. (Pen. Code, § 222.)

Existing law states that rape is an act of sexual intercourse accomplished where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known, by the accused. (Pen. Code, §§ 261, subd. (a)(3); 262, subd. (a)(2).)

Existing law specifies felony penalties for any person who commits an act of sodomy, oral copulation or sexual penetration where the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known, by the accused. (Pen. Code, §§ 286, subd. (i); 288a, subd. (i); 289, subd. (e).)

This bill provides that a person who possesses gamma hydroxybutyric acid (GHB), ketamine or flunitrazepam, also known by the trade name Rohypnol, with the intent to commit sexual assault, as defined, is guilty of a felony, punishable by imprisonment pursuant to Penal Code Section 1170 (h) for sixteen months, two years or three years.

This bill defines "sexual assault" for the purposes of this bill to include, but not be limited to, violations of specified provisions related to sexual assault committed against a victim who is prevented from resisting by an intoxicating or anesthetic substance, or any controlled substance.

This bill states the finding of the Legislature that in order to deter the possession of ketamine, GHB, and Rohypnol by sexual predators and to take steps to prevent the use of these drugs to incapacitate victims for purposes of sexual exploitation, it is necessary and appropriate that an individual who possesses one of these substances for predatory purposes be subject to felony penalties.

RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

For the past several 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 December of 2015 the administration reported that as “of December 9, 2015, 112,510 inmates were housed in the State’s 34 adult institutions, which amounts to 136.0% of design bed capacity, and 5,264 inmates were housed in out-of-state facilities. The current population is 1,212 inmates below the final court-ordered population benchmark of 137.5% of design bed capacity, and has been under that benchmark since February 2015.” (Defendants’ December 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).) One year ago, 115,826 inmates were housed in the State’s 34 adult institutions, which amounted to 140.0% of design bed capacity, and 8,864 inmates were housed in out-of-state facilities. (Defendants’ December 2014 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 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:

In November 2014, California voters approved Proposition 47 which reclassified many crimes from felonies to misdemeanors. One of these reclassifications involved the possession of the drugs Rohypnol, GHB and ketamine—commonly known as “date rape” drugs. Prior to Proposition 47, possession of a date rape drug was punishable as a “wobbler” in which the prosecutor or judge can determine whether a felony or misdemeanor is appropriate based on the facts of the case. Prop. 47 removed the ability to charge an individual with a felony for possession.

A fundamental difference exists between the possession of recreational drugs meant to be consumed by that individual and the possession of ‘date rape’ drugs when intended to be used on another individual. These drugs will render a sexual assault victim completely incapacitated. They also result in a victim having little to no memory of the assault which took place. This allows a rapist to escape prosecution because a victim can’t remember the details of the crime when questioned in court. Concerns have been expressed in the law enforcement community that the new law relating to the possession of date rape drugs can potentially weaken sexual assault statutes and harm public safety.

Senate Bill 1182 would give prosecutors the ability to bring felony charges against individuals caught in possession of date rape drugs with the intent to commit a sexual assault. Given the difficult nature of prosecuting sexual assault crimes, the Legislature should embrace this opportunity to provide serious consequences for criminals looking to use date rape drugs to facilitate a heinous crime.

2. Difference Between Attempted Sexual Assault and Possession of a Drug with Intent to Commit a Sex Crime

Governor Brown vetoed the identical predecessor to this bill - SB 333 (Galgiani) - in 2015. In relevant part, the Governor’s veto message on this and numerous other bills stated:

Each of these bills creates a new crime - usually by finding a novel way to characterize and criminalize conduct that is already proscribed. This multiplication and particularization of criminal behavior creates increasing complexity without commensurate benefit. 

Members may wish to consider whether possession of a drug with intent to commit a sex crime is equivalent to attempt to commit a sex crime, which already is a crime. In many cases, the proof of an attempted sex crime would overlap with proof of possession of a drug with intent to commit a sex crime. An attempt to commit a crime has the following two elements: The defendant intended to commit a crime and he or she took a direct, yet ultimately ineffectual, step towards commission of the crime. An attempted crime would have been completed except for some circumstance or occurrence that interrupted or prevented the defendant’s commission of the offense. Preparation to commit a crime is not a direct step towards commission of a crime that establishes an attempt. (People v. Breverman (1998) 19 Cal.4th 142, 154; CALCRIM 406.) Possession of a drug with the intent to commit a sex crime would appear to constitute preparation, not an attempt, under current law.

With the crime defined by this bill - possession of a specified drug with the intent to commit a sex crime - the prosecution would not need to prove that the defendant went beyond preparation and took a direct step toward commission of the crime. The prosecutor would simply need to prove possession, including exercising dominion and control of a drug that is not held on the defendant’s person, with the intent to commit a sex offense. Proof of intent would typically involve the defendant’s admission of such intent or prior convictions and arrests for similar conduct.

In most cases, there are limits on the use of prior convictions as proof of a current crime. Specifically, a defendant’s prior convictions or bad acts cannot be used to establish his or her propensity to commit the charged offense. (Evid. Code § 1101, subd. (a).) Propensity evidence is essentially improper character evidence. Jurors who are informed that a defendant has been previously convicted of a crime – especially the same crime for which the defendant is being tried – are highly likely to convict the defendant because of his or her propensity to commit the charged offense, not the evidence in the current case. People v. Thompson (1980) 27 Cal.3d 303, 317-318.) Evidence of prior convictions and other bad acts are, however, admissible to prove knowledge intent, motive, common plan or identity. (Evid. Code § 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4^th at 380, 393-406.)

As to sex crime prosecutions, “all that changed …with the advent of [Evidence Code] section 1108.” (People v. Britt (2002) 104 Cal.App.4^th 500, 505.) Evidence Code Section 1108, subdivision (a) provides: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” Section 352 authorizes a trial judge to bar use of evidence that is more prejudicial than probative. Evidence is more prejudicial than probative if the unfairness of the evidence outweighs its tendency to prove an issue in the case.

Jurors find prior convictions or arrests for a similar offense to the one charged to be very powerful evidence. The fact that jurors will likely rely on a prior conviction in weighing a defendant’s guilt than the evidence about the current offense is precisely why prior conviction evidence is generally inadmissible. (People v. Thompson, supra, 27 Cal.3d 303, 317-318.)

3. Plea Bargain Issues – Obtaining a Plea to Possession of a Drug with Intent to Commit a Sex Crime in Cases where Conviction at Trial of a Violent Sex Crime is Uncertain

The crime defined by this bill could be the basis for a plea bargain in cases where the prosecutor and the defendant are each not confident of prevailing in the trial of a sex crime such as rape or forced oral copulation.  If there are proof problems with a more serious sex offense – for example, the witness cannot remember important things about the incident or she is extremely reluctant to testify - the prosecutor could still obtain a felony conviction for sex crime through a plea, rather than the defendant going free or being convicted of an offense that doesn’t reflect his criminal sexual intent. A defendant could be motivated to plead guilty in order to avoid a long sentence if he were convicted of the more serious offense.  Because the consequences for something going wrong are so severe - a long prison term for the defendant and the possibility that a predator walks free for the prosecution - each side tends to be acutely aware of the weaknesses in his or her case.     

Defendants with prior sex offenses are excluded from misdemeanor possession of drugs charges under Proposition 47.  However, a simple possession conviction would not reflect that the defendant’s crime was sexually motivated or that he has a history of sex crimes. The crime defined by this bill would clearly reflect the defendant’s criminal sexual intent.

4. Use of Ketamine, Flunitrazepam or GHB for Prescription Medications, Self-Medication and Intoxication

Ketamine is an anesthetic-dissociative drug. It appears to be the drug of choice in pediatric surgery and pediatric emergency pain management, as it blocks the sensation of pain without full unconsciousness and depressed respiration.^[1][2] Ketamine is very widely used in African and other countries with low per-capita income levels, as it is effective, cheap and safe. Greater restrictions of ketamine manufacturing and distribution have caused great alarm in Africa among physicians and public health experts.^[3]

Ketamine has recently been used as an “off label” drug for the treatment of depressions. Patients report that they lose their depressive symptoms quickly and the effect lasts for months.^[4] Clinical trials have been conducted or are underway for use of ketamine as a formally recognized depression treatment. The results of the trials have been remarkably positive.^[5][6]

Ketamine is used for intoxication or mind-altering experiences. Users seek the dissociative experience that would be considered an unwanted or problematic side effect in medial use. Users lose awareness of their surroundings and report vivid hallucinations. Some people found them profound and enjoyable,^[7] others found the experience disturbing.

GHB is prescribed to narcoleptics to allow them to sleep deeply at night. It is often used as a so-called “club drug.”^[8] It has been described as being similar to alcohol intoxication, but with more euphoric effects, without a hangover the next day. However, users’ experiences are quite variable.^[9] GHB is dangerous when mixed with alcohol, as both are central nervous system depressants.

Flunitrazepam is a benzodiazepine, the class of sedative-hypnotic drugs that include Xanax, Valium, and many others. It was developed in 1965. It has been described as 10 times more potent than Valium, but is typically prescribed in doses that are 1/10^th of that of a common Valium dose. It is not available legally in the United States, but it is available around the world. It has been the most widely prescribed drug of its class in Europe.^[10] It has been successfully used to treat alcoholics suffering from delirium tremens during withdrawal. Flunitrazepam is very widely used by heroin addicts to boost the effects of the drug without risking overdose and to ease withdrawal.^[11][12] A University of Illinois study on the extent of drug facilitated sexual assault noted use of the drug by opiate addicts and cocaine users, including rape victims themselves. (Negruz, et al., Estimate of the Incidence of Drug-Facilitated Sexual Assault in the U.S, Univ. of Illinois, Chicago (Nov. 2005).)

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1. http://www.ncbi.nlm.nih.gov/pubmed/18645539 ↑

2. http://emupdates.com/wp-content/uploads/2011/01/ACEP-Ketamine-Guideline-2011.pdf ↑

3. http://www.theguardian.com/world/2015/feb/27/raver-drug-ketamine-control-plan-at-un-condemned-as-potential-disaster ↑

4. http://www.nytimes.com/2014/12/10/business/special-k-a-hallucinogen-raises-hopes-and-concerns-as-a-treatment-for-depression.html?_r=0 ↑

5. http://www.nimh.nih.gov/about/director/2014/ketamine.shtml ↑

6. http://www.nimh.nih.gov/labs-at-nimh/join-a-study/trials/adult-studies/rapid-antidepressant-effects-of-ketamine.shtml ↑

7. https://www.erowid.org/experiences/exp.php?ID=38360 ↑

8. ‘The silent ‘G’” Contemporary Drug Problems, 2012 ↑

9. https://www.erowid.org/experiences/subs/exp_GHB.shtml#General ↑

10. http://www.cesar.umd.edu/cesar/drugs/rohypnol.asp ↑

11. http://www.ncbi.nlm.nih.gov/pubmed/8102333 ↑

12. http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3454351/ ↑