Existing law makes it a misdemeanor to sell, dispense, distribute, furnish, administer, or give, or offer to sell, dispense, distribute, furnish, administer, or give, or possess for sale, any synthetic stimulant compound or any specified synthetic stimulant derivative. Existing law also makes it a misdemeanor to sell, dispense, distribute, furnish, administer, or give, or offer to sell, dispense, distribute, furnish, administer, or give, or possess for sale, any synthetic cannabinoid compound or any synthetic cannabinoid derivative. Existing law, beginning January 1, 2016, makes it an infraction to use or possess those drugs.

This bill would expand the definition of a synthetic stimulant compound and a synthetic cannabinoid compound for purposes of existing law and would exclude from that definition substances that are in the federal clinical trial process, as specified. The bill would provide that a first offense of using or possessing these substances is punishable as an infraction, a 2nd offense is punishable as an infraction or a misdemeanor, and a 3rd or subsequent offense is punishable as a misdemeanor. By expanding the scope of existing crimes and by increasing the penalty for existing crimes, the bill would impose a state-mandated local program. The bill would authorize the synthetic cannabinoid compounds to be obtained and used for bona fide research, instruction, or analysis if that possession and use does not violate federal law.

Existing law authorizes the court, together with the district attorney and public defender, to conduct a preguilty plea drug court program pursuant to specified provisions in which proceedings are suspended without a plea of guilty for designated defendants. Existing law sets forth procedures that apply to these programs.

This bill would authorize a person charged with certain crimes relating to synthetic stimulant compounds or synthetic cannabinoid compounds to be eligible to participate in those preguilty plea drug court programs. The bill would set forth additional procedures that would apply in determining eligibility and compliance with the program.

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.

This bill would declare that it is to take effect immediately as an urgency statute.

Existing law makes it a misdemeanor to sell, dispense, distribute, furnish, administer, or give, or offer to sell, dispense, distribute, furnish, administer, or give, or possess for sale, any synthetic stimulant compound or any specified synthetic stimulant derivative. Existing law also makes it a misdemeanor to sell, dispense, distribute, furnish, administer, or give, or offer to sell, dispense, distribute, furnish, administer, or give, or possess for sale, any synthetic cannabinoid compound or any synthetic cannabinoid derivative. Existing law, beginning January 1, 2016, makes it an infraction to use or possess those drugs.

This bill would expand the definition of a synthetic stimulant compound and a synthetic cannabinoid compound for purposes of existing law and would exclude from that definition substances that are in the federal clinical trial process, as specified. The bill would provide that a first offense of using or possessing these substances is punishable as an infraction, a 2nd offense is punishable as an infraction or a misdemeanor, and a 3rd or subsequent offense is punishable as a misdemeanor. By expanding the scope of existing crimes and by increasing the penalty for existing crimes, the bill would impose a state-mandated local program. The bill would authorize the synthetic cannabinoid compounds to be obtained and used for bona fide research, instruction, or analysis if that possession and use does not violate federal law.

Existing law authorizes the court, together with the district attorney and public defender, to conduct a preguilty plea drug court program pursuant to specified provisions in which proceedings are suspended without a plea of guilty for designated defendants. Existing law sets forth procedures that apply to these programs.

This bill would authorize a person charged with certain crimes relating to synthetic stimulant compounds or synthetic cannabinoid compounds to be eligible to participate in those preguilty plea drug court programs. The bill would set forth additional procedures that would apply in determining eligibility and compliance with the program.

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.

This bill would declare that it is to take effect immediately as an urgency statute.

Existing law makes it a misdemeanor to sell, dispense, distribute, furnish, administer, or give, or offer to sell, dispense, distribute, furnish, administer, or give, or possess for sale, any synthetic stimulant compound or any specified synthetic stimulant derivative. Existing law also makes it a misdemeanor to sell, dispense, distribute, furnish, administer, or give, or offer to sell, dispense, distribute, furnish, administer, or give, or possess for sale, any synthetic cannabinoid compound or any synthetic cannabinoid derivative. Existing law, beginning January 1, 2016, makes it an infraction to use or possess those drugs.

This bill would expand the definition of a synthetic stimulant compound and a synthetic cannabinoid compound for purposes of existing law. law and would exclude from that definition substances that are in the federal clinical trial process, as specified. The bill would provide that a first offense of using or possessing these substances is punishable as an infraction, a 2nd offense is punishable as an infraction or a misdemeanor, and a 3rd or subsequent offense is punishable as a misdemeanor. By expanding the scope of existing crimes and by increasing the penalty for existing crimes, the bill would impose a state-mandated local program. The bill would authorize the synthetic cannabinoid compounds to be obtained and used for bona fide research, instruction, or analysis if that possession and use does not violate federal law.

Existing law authorizes the court, together with the district attorney and public defender, to conduct a preguilty plea drug court program pursuant to specified provisions in which proceedings are suspended without a plea of guilty for designated defendants. Existing law sets forth procedures that apply to these programs.

This bill would authorize a person charged with certain crimes relating to synthetic stimulant compounds or synthetic cannabinoid compounds to be eligible to participate in those preguilty plea drug court programs. The bill would set forth additional procedures that would apply in determining eligibility and compliance with the program.

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.

This bill would declare that it is to take effect immediately as an urgency statute.

Existing law makes it a misdemeanor to sell, dispense, distribute, furnish, administer, or give, or offer to sell, dispense, distribute, furnish, administer, or give, or possess for sale, any synthetic stimulant compound or any specified synthetic stimulant derivative. Existing law also makes it a misdemeanor to sell, dispense, distribute, furnish, administer, or give, or offer to sell, dispense, distribute, furnish, administer, or give, or possess for sale, any synthetic cannabinoid compound or any synthetic cannabinoid derivative. Existing law, beginning January 1, 2016, makes it an infraction to use or possess those drugs.

This bill would instead make it an infraction to use or possess those drugs beginning on the effective date of this bill. The bill would also expand the definition of a synthetic stimulant compound and a synthetic cannabinoid compound for purposes of existing law. The bill would provide that a first offense of using or possessing these substances is punishable as an infraction, a 2nd offense is punishable as an infraction or a misdemeanor, and a 3rd or subsequent offense is punishable as a misdemeanor. By expanding the scope of existing crimes and by increasing the penalty for existing crimes, the bill would impose a state-mandated local program.

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.

This bill would declare that it is to take effect immediately as an urgency statute.

Existing law makes it a misdemeanor to sell, dispense, distribute, furnish, administer, or give, or offer to sell, dispense, distribute, furnish, administer, or give, or possess for sale, any synthetic stimulant compound or any specified synthetic stimulant derivative. Existing law also makes it a misdemeanor to sell, dispense, distribute, furnish, administer, or give, or offer to sell, dispense, distribute, furnish, administer, or give, or possess for sale, any synthetic cannabinoid compound or any synthetic cannabinoid derivative. Existing law, beginning January 1, 2016, makes it an infraction to use or possess those drugs.

This bill would instead make it an infraction to use or possess those drugs beginning on the effective date of this bill. The bill would also expand the definition of a synthetic stimulant compound and a synthetic cannabinoid compound for purposes of existing law. The bill would provide that a first offense of using or possessing those substances is punishable as an infraction, a 2nd offense is punishable as an infraction or a misdemeanor, and a 3rd or subsequent offense is punishable as a misdemeanor. By expanding the scope of existing crimes and by increasing the penalty for existing crimes, this the bill would impose a state-mandated local program.

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.

This bill would declare that it is to take effect immediately as an urgency statute.

Existing law makes it a misdemeanor to sell, dispense, distribute, furnish, administer, or give, or offer to sell, dispense, distribute, furnish, administer, or give, or possess for sale, any synthetic stimulant compound or any specified synthetic stimulant derivative. Existing law also makes it a misdemeanor to sell, dispense, distribute, furnish, administer, or give, or offer to sell, dispense, distribute, furnish, administer, or give, or possess for sale, any synthetic cannabinoid compound or any synthetic cannabinoid derivative. Existing law, beginning January 1, 2016, makes it an infraction to use or possess those drugs.

This bill would expand the definition of a synthetic stimulant compound and a synthetic cannabinoid for purposes of existing law. The bill would provide that a first offense of using or possessing those substances is punishable as an infraction, a 2nd offense is punishable as an infraction or a misdemeanor, and a 3rd or subsequent offense is punishable as a misdemeanor. By expanding the scope of existing crimes and by increasing the penalty for existing crimes, this bill would impose a state-mandated local program.

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.

This bill would declare that it is to take effect immediately as an urgency statute.

 UNFINISHED BUSINESS  

Bill No: SB 139

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 7/14/15

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

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SENATE FLOOR: 40-0, 9/1/15

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

ASSEMBLY FLOOR: 77-0, 8/22/16 - See last page for vote

SUBJECT:

SOURCE: California Narcotics Officers Association

DIGEST: This bill (1) provides that possession of specified synthetic cannabinoids or stimulants is a crime, as follows: First offense is an infraction; a second offense is an infraction or misdemeanor, a third or subsequent offense is a misdemeanor; (2) provides that a person charged with possession of a one of these drugs is eligible for a preguilty plea education and treatment program; (3) states that relapse is expected in treatment such that a program participant should not be dismissed for a positive drug test if he or she is making any progress; (4) includes legislative findings that drug abuse is a chronically relapsing condition and that treatment is cumulative; (5) adds numerous specified drugs or chemicals to the existing list of prohibited synthetic cannabinoids; and (6) adds specified synthetic stimulants to the statutory list of prohibited drugs of that type.

Assembly Amendments (1) include a pre-plea penalty and education or treatment system for a person found in possession of synthetic cannabinoid or stimulant; (2) make legislative findings that drug abuse is a chronically relapsing condition for which treatment is cumulative; (3) provide an exemption from criminal penalties for approved research; (4) clarify that drug commerce defendants are not eligible for the preplea diversion program; (5) state, specifically, that analogs of synthetic cannabinoids or stimulants are prohibited substances; and 6) add an urgency clause.

ANALYSIS:

Existing law:

1) Provides that any person who possesses for sale, sells or furnishes any specified synthetic cannabinoid compound shall be punished by imprisonment in the county jail for up to six months, a fine of up to $1,000, or both. (Health & Saf. Code § 11357, subd. (a.)

2) Provides that any person who sells, dispenses, distributes, or gives the stimulant substances naphthylpyrovalerone or cathinone, or specified variations of these drugs, or who offers to do such acts, is guilty of a misdemeanor, punishable by a jail term of up to six months, a fine of up to $1,000, or both. (Health & Saf. Code § 11375.5.)

1. Defines "synthetic cannabinoid compound" as any of the following substances (Health & Saf. Code § 11357.5, subd. (c).):
   1. 1-pentyl-3-(1-naphthoyl)indole (JWH-018);
   2. 1-butyl-3-(1-naphthoyl)indole (JWH-073);
   3. 1-[2-(4-morpholinyl)ethyl]-3-(1-naphthoyl)indole (JWH-200);
   4. 5-(1,1-dimethylheptyl)-2-[(1R,3S)-3-hydroxycyclohexyl]-phenol (CP- 47,497); and
   5. 5-(1,1-dimethyloctyl)-2-[(1R,3S)-3-hydroxycyclohexyl]-phenol (cannabicyclohexanol; CP-47,497 C8 homologue).
2. Provides that every person who sells or distributes, or offers to sell or distribute, any synthetic stimulant compound, as specified, to any person, or who possesses that compound for sale, is guilty of a misdemeanor, punishable by imprisonment in a county jail not to exceed six months, or by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment. (Health & Saf. Code § 11375.5, subd. (a).)
3. Specifies that every person who uses or possesses any synthetic stimulant compound specified in subdivision (c), or any synthetic stimulant derivative, is guilty of an infraction, punishable by a fine not to exceed two hundred fifty dollars ($250). (Health & Saf. Code § 11375.5, subd. (b).)
4. Provides that the list of prohibited synthetic stimulants include any quantity of the following substances, as specified, within any of the following specific chemical designations (Health & Saf. Code § 11375.5, subd. (c).):
   1. Naphthylpyrovalerone whether or not further substituted in the naphthyl ring to any extent with alkyl, alkoxy, alkylenedioxy, haloalkyl, or halide substituents, whether or not further substituted in the naphthyl ring by one or more other univalent substituents, or whether or not further substituted in the carbon chain at the 3-, 4-, or 5-position with an alkyl substituent; and
   2. 2-amino-1-phenyl-1-propanone (cathinone) or variation in any of the following ways:
      1. By substitution in the phenyl ring to any extent with alkyl, alkoxy, alkylenedioxy, haloalkyl, or halide substituents, whether or not further substituted in the phenyl ring by one or more other univalent substituents.
      2. By substitution at the 3-position with an alkyl substituent;
      3. By substitution at the nitrogen atom with alkyl, dialkyl, or benzyl groups, or by inclusion of the nitrogen atom in a cyclic structure; and
5. Specifies that a controlled substance analog shall be treated the same as specified controlled substances of which it is an analog. (Health & Saf. Code § 11401, subd. (a).)
6. Provides that, except as specified, the term "controlled substance analog" means either of the following:
   1. A substance the chemical structure of which is substantially similar to the chemical structure of specified controlled substances; or (Health & Saf.Code § 11401, subd. (b)(1).)
   2. A substance which has, is represented as having, or is intended to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to, or greater than, the stimulant, depressant, or hallucinogenic effect on the central nervous system of specified controlled substances. (Health & Saf. Code § 11401, subd. (b)(2).)
7. Provides that the entry of judgment may be deferred for a defendant charged with specific controlled substance offenses if the defendant meets specific criteria, including that he or she has no prior convictions for any offense involving a controlled substance and no prior felony convictions within five years. (Pen. Code § 1000.)
8. Provides that a superior court may administer a pre-plea drug diversion program if the court, the county district attorney and the public defender agree. (Pen. Code § 1000.5.)
9. Provides that upon successful completion of a deferred entry of judgment or diversion, the arrest upon which the judgment was deferred shall be deemed to never have occurred. The defendant may in response to any question in regard to his or her prior criminal record that he or she was not arrested or granted deferred entry of judgment, except as specified. (Pen. Code § 1000.4, subd. (a).)

This bill:

1. Expands the definition of a synthetic cannabinoid compound by listing additional chemical categories and myriad individual chemicals as synthetic cannabinoids.
2. Provides that a first offense of using or possessing a synthetic stimulant compound or synthetic cannabinoid is punishable as an infraction, a second offense is punishable as an infraction or a misdemeanor, and a third or subsequent offense is punishable as a misdemeanor. 
3. Authorizes a person charged with certain crimes relating to synthetic stimulant compounds or synthetic cannabinoid compounds to be eligible to participate in a preguilty plea drug court program.
4. Makes legislative findings that drug abuse is a chronically relapsing condition, relapse is to be expected in treatment and treatment is cumulatively beneficial.
5. Provides that a person in a treatment and education program for possession of a synthetic cannabinoid or stimulant should not be dismissed from the program for a positive test for drugs or alcohol if the person is otherwise making progress in the program.
6. Makes technical changes to the definition of synthetic stimulant compound.
7. Provides - consistent with SB 1036 (Herndandez), passed by the Legislature on August 19, 2016 - that an analog of a specifically enumerated synthetic cannabinoid shall be considered a prohibited synthetic cannabinoid.

Background

According to the author:

Synthetic cannabinoids are a growing problem. Part of the reason that drugs dealers are having so much success marketing the drug to teenagers and young adults is that they are able to market them as being legal. Up until my bill last year, simple possession of these drugs was actually perfectly legal under state law, despite their well-documented danger. Underground chemists skirt the law by slightly altering the chemical compounds of these drugs, to come up with new versions, which technically, are NOT illegal yet. Senate Bill 139 will close these loopholes in state law and allow law enforcement to be better equipped in getting these drugs away from our communities.

In 2014, the Senate Public Safety Committee heard another bill - SB 1283 (Galgiani, Chapter 372) - concerning synthetic cannabinoids and synthetic stimulant drugs. SB 1283 becomes effective in 2016. SB 1283 was amended in this Committee to reflect the same basic penalty structure as in this bill. That is, a first offense is an infraction, punishable by a fine of up to $250. A second offense is an infraction or a misdemeanor. A third or subsequent offense is a misdemeanor. However, the bill included novel provisions concerning the education and treatment of defendants found to be in possession of a listed synthetic drug. The amendments provided that a defendant could elect to participate in an education program and obtain a return of his or her fine upon successful completion of the program.

Synthetic cannabinoids come in two basic forms. CB1 cannabinoids bind to CB1 cannabinoid receptors in the brain. CB2 cannabinoid receptors bind to cells throughout the body that are largely involved in regulating the immune system. THC binds to CB1 and CB2 receptors. CB1 cannabinoids have psychoactive properties. (http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3567606/) Typically statutes, news reports and academic works concern CB1 synthetic cannabinoids. Synthetic cannabinoid compounds were developed in basic medical research for controlled studies of the functions of cannabinoid receptors in the brain and body. These receptors bind with endogenous cannabinoids (produced naturally in the body) and with the active chemicals in cannabis.

Recently, emergency room (ER) visits for synthetic cannabinoids have spiked. As use of these drugs appears to be dropping, the surge in ER visits is likely the result of a dangerous change in chemical composition of the drugs. One who obtains a synthetic cannabinoid can only guess as to its composition and effects. (http://www.nytimes.com/2015/04/25/health/surge-in-hospital-visits-linked-to-a-drug-called-spice-alarms-health-officials.html)

The University of Michigan Monitoring the Future survey first asked 8th and 10th graders about their use of synthetic [cannabinoids] in 2011. The survey found that in 2012 annual prevalence rates were 4.4% and 8.8%, respectively. Use in all grades dropped in 2013, especially among 12th graders. The declines continued into 2014. Awareness of the dangers of synthetic cannabinoid was up sharply. (http://monitoringthefuture.org/pubs/monographs/mtf-overview2014.pdf.)

The Legislature has passed SB 1036 (Hernandez), which provides that any analog of a synthetic cannabinoid shall be treated as a specifically prohibited synthetic cannabinoid. This bill appears intended to describe the known universe of synthetic cannabinoids. SB 1036 is intended to cover any version of a synthetic cannabinoid that is developed after this bill becomes effective. Discussions with experts in the field indicate that it may be difficult to establish that any particular chemical is an analog of a specifically prohibited synthetic cannabinoid, as the drugs can be chemically unique and varied in effects.

Recent research has compared the effectiveness of varying forms of court-based drug treatment with other forms or sources of treatment demand. University of California Los Angeles studies of the effectiveness of the Substance Abuse and Crime Prevention Act of 2000 (SACPA) were released in 2003 and 2006. SACPA requires drug treatment without incarceration for non-violent drug possession. The SACPA model was as effective as drug court or voluntary treatment models. Improvements in funding allocations and programs would have produced better results. (http://www.uclaisap.org/prop36/documents/sacpa_costanalysis.pdf.)

An extensive 2007 study of 474 drug offenders in drug court in Maricopa County Arizona (the Phoenix area) compared the outcomes in drug court treatment for persons who were subject to jail sanctions against those who were not subject to sanctions. The study found that the threat of jail sanctions did not affect the participant’s rate of retention in or completion of the program. This bill allows a participant in a true diversion programs (no guilty plea is required) to remain in the program after a positive drug or alcohol test if he or she is otherwise making progress.

FISCAL EFFECT: Appropriation: Fiscal Com: Local:

According to the Assembly Appropriations Committee: “Minor, nonreimbursable costs for enforcement and incarceration, offset to a degree by increased fine revenue.”

SUPPORT: (Verified 8/22/16)

California Narcotic Officers Association (source)

Association for Los Angeles Deputy Sheriffs

California Association of Code Enforcement Officers

California College and University Police Chiefs Association

California District Attorneys Association

California Police Chiefs Association

California State Sheriffs’ Association

Los Angeles Police Protective League

Riverside Sheriffs’ Association

OPPOSITION: (Verified 8/22/16)

American Civil Liberties Union

Drug Policy Alliance

Legal Services for Prisoners with Children

ASSEMBLY FLOOR: 77-0, 8/22/16

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

NO VOTE RECORDED: Melendez, Quirk, Ting

Prepared by:

8/30/16 20:28:23

**** END ****

SENATE THIRD READING

STR Bill Id:SB 139

Author:(Galgiani)

As Amended Ver:August 18, 2016

2/3 vote. Urgency

SENATE VOTE: 40-0

SUMMARY: Raises penalties for possession of synthetic cannabinoids and synthetic stimulants. Expands list of substances prohibited as synthetic cannabinoids. Specifically, this bill:

1. Expands the definition of a synthetic cannabinoid compound by listing additional chemical categories as synthetic cannabinoids.
2. States that an analog of specified synthetic cannabinoids and synthetic stimulants are prohibited in the same fashion as the specified synthetic cannabinoids and synthetic stimulants.
3. Provides that specified synthetic cannabinoids and their analogs may be lawfully obtained and used for research, instruction, or analysis as long as that possession is consistent with federal law.
4. Specifies that "synthetic cannabinoid compound" does not include:
   1. Any substance that has been approved for a new drug application, as specified, or which is generally recognized as safe and effective for use as specified by federal law.
   2. Any substance that is allowed for investigational use, as specified, under federal law.
5. Provides that a first offense of using or possessing a synthetic stimulant compound or synthetic cannabinoid is punishable as an infraction, a second offense is punishable as an infraction or a misdemeanor, and a third or subsequent offense is punishable as a misdemeanor.
6. Authorizes a person charged with specified crimes related to use and possession of synthetic stimulant compounds or synthetic cannabinoid compounds to be eligible to participate in a preguilty plea drug court program.
7. Makes technical changes to the definition of synthetic stimulant compound.

EXISTING LAW:

1. Specifies that every person who sells, dispenses, distributes, furnishes, administers, or gives, or offers to sell, dispense, distribute, furnish, administer, or give, or possesses for sale any synthetic cannabinoid compound, or any synthetic cannabinoid derivative, to any person, is guilty of a misdemeanor, punishable by imprisonment in a county jail not exceeding six months, or by a fine not exceeding $1,000, or by both that fine and imprisonment.
2. States that every person who uses or possesses any synthetic cannabinoid compound, or any synthetic cannabinoid derivative, is guilty of an infraction, punishable by a fine not to exceed $250.
3. Defines "synthetic cannabinoid compound" as any of the following substances:
   1. 1-pentyl-3-(1-naphthoyl)indole (JWH-018);
   2. 1-butyl-3-(1-naphthoyl)indole (JWH-073);
   3. 1-[2-(4-morpholinyl)ethyl]-3-(1-naphthoyl)indole (JWH-200);
   4. 5-(1,1-dimethylheptyl)-2-[(1R,3S)-3-hydroxycyclohexyl]-phenol (CP-47,497); and
   5. 5-(1,1-dimethyloctyl)-2-[(1R,3S)-3-hydroxycyclohexyl]-phenol (cannabicyclohexanol; CP-47,497 C8 homologue).
4. Provides that every person who sells or distributes, or offers to sell or distribute, any synthetic stimulant compound, as specified, to any person, or who possesses that compound for sale, is guilty of a misdemeanor, punishable by imprisonment in a county jail not to exceed six months, or by a fine not to exceed $1,000, or by both that fine and imprisonment.
5. Specifies that every person who uses or possesses any synthetic stimulant compound as specified, or any synthetic stimulant derivative, is guilty of an infraction, punishable by a fine not to exceed $250.
6. Provides that the list of prohibited synthetic stimulants include any quantity of the following substances, as specified, within any of the following specific chemical designations:
   1. Naphthylpyrovalerone whether or not further substituted in the naphthyl ring to any extent with alkyl, alkoxy, alkylenedioxy, haloalkyl, or halide substituents, whether or not further substituted in the naphthyl ring by one or more other univalent substituents, or whether or not further substituted in the carbon chain at the 3-, 4-, or 5-position with an alkyl substituent; and
   2. 2-amino-1-phenyl-1-propanone (cathinone) or variation in any of the following ways:
      1. By substitution in the phenyl ring to any extent with alkyl, alkoxy, alkylenedioxy, haloalkyl, or halide substituents, whether or not further substituted in the phenyl ring by one or more other univalent substituents.
      2. By substitution at the 3-position with an alkyl substituent;
      3. By substitution at the nitrogen atom with alkyl, dialkyl, or benzyl groups, or by inclusion of the nitrogen atom in a cyclic structure; and
7. Specifies that a controlled substance analog shall be treated the same as specified controlled substances of which it is an analog.
8. Provides that, except as specified, the term "controlled substance analog" means either of the following:
   1. A substance the chemical structure of which is substantially similar to the chemical structure of specified controlled substances; or
   2. A substance which has, is represented as having, or is intended to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to, or greater than, the stimulant, depressant, or hallucinogenic effect on the central nervous system of specified controlled substances.
9. Specifies that the term "controlled substance analog" does not mean "any substance for which there is an approved new drug application as specified under the federal Food, Drug, and Cosmetic Act or which is generally recognized as safe and effective as specified by the federal Food, Drug, and Cosmetic Act."
10. Lists controlled substances in five "schedules" – intended to list drugs in decreasing order of harm and increasing medical utility or safety – and provides penalties for possession of and commerce in controlled substances.
11. Requires non-violent drug possession offenders to be offered drug treatment on probation, which shall not include incarceration as a condition of probation, in the form of, Proposition 36 of 2000, the Substance Abuse and Crime Prevention Act of 2000 (SACPA).
12. Provides that non-violent drug possession offenses include:
    1. Unlawful use, possession for personal use, or transportation for personal use of a controlled substance; and,
    2. Being under the influence of a controlled substance.

FISCAL EFFECT: According to the Assembly Appropriations Committee, minor, nonreimbursable costs for enforcement and incarceration, offset to a degree by increased fine revenue.

COMMENTS: According to the author, "Synthetic cannabinoid compounds have become a growing problem in our community. Part of the reason that drugs dealers are having so much success marketing the drug to teenagers and young adults is that they are able to market them as being legal. Up until my bill last year, simple possession of these drugs was actually perfectly legal under state law. This is despite their well-documented danger. Now it has come to my attention that underground chemists skirt the law by slightly altering the chemical compounds of these drugs, to come up with new versions, which technically, are NOT illegal yet. Senate Bill 139 will close these loopholes in state law and allow law enforcement to be better equipped in getting these drugs away from our communities."

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

Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744 FN: 0004225

SENATE THIRD READING

STR Bill Id:SB 139

Author:(Galgiani)

As Amended Ver:June 15, 2016

2/3 vote. Urgency

SENATE VOTE: 40-0

SUMMARY: Raises penalties for possession of synthetic cannabinoids and synthetic stimulants. Expands list of substances prohibited as synthetic cannabinoids. Specifically, this bill:

1. Expands the definition of a synthetic cannabinoid compound by listing additional chemical categories as synthetic cannabinoids.
2. Provides that a first offense of using or possessing a synthetic stimulant compound or synthetic cannabinoid is punishable as an infraction, a second offense is punishable as an infraction or a misdemeanor, and a third or subsequent offense is punishable as a misdemeanor.
3. Authorizes a person charged with certain crimes relating to synthetic stimulant compounds or synthetic cannabinoid compounds to be eligible to participate in a preguilty plea drug court program.
4. Makes technical changes to the definition of synthetic stimulant compound.

EXISTING LAW:

1. Specifies that every person who sells, dispenses, distributes, furnishes, administers, or gives, or offers to sell, dispense, distribute, furnish, administer, or give, or possesses for sale any synthetic cannabinoid compound, or any synthetic cannabinoid derivative, to any person, is guilty of a misdemeanor, punishable by imprisonment in a county jail not exceeding six months, or by a fine not exceeding $1,000, or by both that fine and imprisonment.
2. States that every person who uses or possesses any synthetic cannabinoid compound, or any synthetic cannabinoid derivative, is guilty of an infraction, punishable by a fine not to exceed $250.
3. Defines "synthetic cannabinoid compound" as any of the following substances:
   1. 1-pentyl-3-(1-naphthoyl)indole (JWH-018);
   2. 1-butyl-3-(1-naphthoyl)indole (JWH-073);
   3. 1-[2-(4-morpholinyl)ethyl]-3-(1-naphthoyl)indole (JWH-200);
   4. 5-(1,1-dimethylheptyl)-2-[(1R,3S)-3-hydroxycyclohexyl]-phenol (CP-47,497); and
   5. 5-(1,1-dimethyloctyl)-2-[(1R,3S)-3-hydroxycyclohexyl]-phenol (cannabicyclohexanol; CP-47,497 C8 homologue).
4. Provides that every person who sells or distributes, or offers to sell or distribute, any synthetic stimulant compound, as specified, to any person, or who possesses that compound for sale, is guilty of a misdemeanor, punishable by imprisonment in a county jail not to exceed six months, or by a fine not to exceed $1,000, or by both that fine and imprisonment.
5. Specifies that every person who uses or possesses any synthetic stimulant compound as specified, or any synthetic stimulant derivative, is guilty of an infraction, punishable by a fine not to exceed $250.
6. Provides that the list of prohibited synthetic stimulants include any quantity of the following substances, as specified, within any of the following specific chemical designations:
   1. Naphthylpyrovalerone whether or not further substituted in the naphthyl ring to any extent with alkyl, alkoxy, alkylenedioxy, haloalkyl, or halide substituents, whether or not further substituted in the naphthyl ring by one or more other univalent substituents, or whether or not further substituted in the carbon chain at the 3-, 4-, or 5-position with an alkyl substituent; and
   2. 2-amino-1-phenyl-1-propanone (cathinone) or variation in any of the following ways:
      1. By substitution in the phenyl ring to any extent with alkyl, alkoxy, alkylenedioxy, haloalkyl, or halide substituents, whether or not further substituted in the phenyl ring by one or more other univalent substituents.
      2. By substitution at the 3-position with an alkyl substituent;
      3. By substitution at the nitrogen atom with alkyl, dialkyl, or benzyl groups, or by inclusion of the nitrogen atom in a cyclic structure; and
7. Specifies that a controlled substance analog shall be treated the same as specified controlled substances of which it is an analog.
8. Provides that, except as specified, the term "controlled substance analog" means either of the following:
   1. A substance the chemical structure of which is substantially similar to the chemical structure of specified controlled substances; or
   2. A substance which has, is represented as having, or is intended to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to, or greater than, the stimulant, depressant, or hallucinogenic effect on the central nervous system of specified controlled substances.
9. Specifies that the term "controlled substance analog" does not mean "any substance for which there is an approved new drug application as specified under the federal Food, Drug, and Cosmetic Act or which is generally recognized as safe and effective as specified by the federal Food, Drug, and Cosmetic Act."
10. Lists controlled substances in five "schedules" – intended to list drugs in decreasing order of harm and increasing medical utility or safety – and provides penalties for possession of and commerce in controlled substances.
11. Requires non-violent drug possession offenders to be offered drug treatment on probation, which shall not include incarceration as a condition of probation, in the form of, Proposition 36 of 2000, the Substance Abuse and Crime Prevention Act of 2000 (SACPA).
12. Provides that non-violent drug possession offenses include:
    1. Unlawful use, possession for personal use, or transportation for personal use of a controlled substance; and,
    2. Being under the influence of a controlled substance.

FISCAL EFFECT: According to the Assembly Appropriations Committee, minor, nonreimbursable costs for enforcement and incarceration, offset to a degree by increased fine revenue.

COMMENTS: According to the author, "Synthetic cannabinoid compounds have become a growing problem in our community. Part of the reason that drugs dealers are having so much success marketing the drug to teenagers and young adults is that they are able to market them as being legal. Up until my bill last year, simple possession of these drugs was actually perfectly legal under state law. This is despite their well-documented danger. Now it has come to my attention that underground chemists skirt the law by slightly altering the chemical compounds of these drugs, to come up with new versions, which technically, are NOT illegal yet. Senate Bill 139 will close these loopholes in state law and allow law enforcement to be better equipped in getting these drugs away from our communities."

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

Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744 FN: 0003767

Date of Hearing: August 3, 2016

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

SBPCA Bill Id:SB 139

Author:(Galgiani) – As Amended Ver:June 15, 2016

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

SUMMARY:

This bill expands the list of substances prohibited as synthetic cannabinoids and raises penalties for possession of synthetic cannabinoids and synthetic stimulants. Specifically, this bill:

1. Expands the definition of a synthetic cannabinoid compound by listing additional chemical categories as synthetic cannabinoids.
   
2. Provides that a first offense of using or possessing a synthetic stimulant compound or synthetic cannabinoid is punishable as an infraction and a fine of up to $250, a second offense is punishable as an infraction or a misdemeanor and a fine of up to $500, and a third or subsequent offense is punishable as a misdemeanor and a fine of up to $1,000.
3. Authorizes a person charged with certain crimes relating to synthetic stimulant compounds or synthetic cannabinoid compounds to be eligible to participate in a preguilty plea drug court program.

FISCAL EFFECT:

Minor, nonreimbursable costs for enforcement and incarceration, offset to a degree by increased fine revenue.

COMMENTS:

1. Background. Current law treats a substance that is the chemical or functional equivalent of a drug listed in Schedule I or II of the controlled substance schedules the same as the scheduled drug. Such a substance is defined as a controlled substance analog. California law allows prosecution of a person for possession of, or commerce in, of a substance that is an analog of a Schedule I or II drug. The purpose of the analog law is to prevent street chemists from circumventing drug laws by synthesizing drugs which have slight chemical or functional differences from the prohibited drug.

Newly developed synthetic cannabinoids are not covered by the California analog statute. Synthetic cannabinoids are not included in Schedule I or II of the controlled substances schedules. Illegal synthetic cannabinoids are separately defined and prohibited.

1. Purpose. According to the author, synthetic cannabinoid compounds have become a growing problem as underground. chemists skirt the law by slightly altering the chemical compounds of illegal drugs, to come up with new versions, which technically, are NOT illegal yet. “Senate Bill 139 will close these loopholes in state law and allow law enforcement to be better equipped in getting these drugs away from our communities.”
2. Support: According to The California Police Chiefs Association, “SB 139 is aimed at prohibiting possession of 'bath salts' and 'spice' and encouraging entry into treatment programs. In addition, SB 139 is drafted so as to be chemically current, thereby preventing bath salts and spice manufacturers from chemically evading the law by making molecular adjustments to their manufacturing process. Senate Bill 139 will assure that Bath Salts cannot continue to cause harm.”
3. Opposition: According to The American Civil Liberties Union of California, “Using the criminal justice system to address substance abuse has led to a broken criminal justice system and billions of wasted taxpayer dollars. The state’s current reliance on criminalization of drug abuse does not work, and increasing penalties for simple possession of the drugs targeted by SB 139 will do nothing to resolve existing problems.
4. Related Legislation: SB 1036 (Hernández), currently in Assembly third reading, expands the definition of controlled substance analog to include a substance the chemical structure of which is substantially similar to the chemical structure of a synthetic cannabinoid compound.
5. Prior Legislation. SB 1283 (Galgiani), Chapter 372, Statutes of 2013, made the use or possession of specified synthetic stimulant compounds or synthetic stimulant derivatives, punishable by a fine not exceeding $250.

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

Date of Hearing: June 28, 2016

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 139

Author:(Galgiani) – As Amended Ver:June 15, 2016

SUMMARY: Raises penalties for possession of synthetic cannabinoids and synthetic stimulants. Expands list of substances prohibited as synthetic cannabinoids. Specifically, this bill:

1. Expands the definition of a synthetic cannabinoid compound by listing additional chemical categories as synthetic cannabinoids.
   
2. Provides that a first offense of using or possessing a synthetic stimulant compound or synthetic cannabinoid is punishable as an infraction, a second offense is punishable as an infraction or a misdemeanor, and a third or subsequent offense is punishable as a misdemeanor. 
   
3. Authorizes a person charged with certain crimes relating to synthetic stimulant compounds or synthetic cannabinoid compounds to be eligible to participate in a preguilty plea drug court program.
   
4. Makes technical changes to the definition of synthetic stimulant compound.
   

EXISTING LAW:

1. Specifies that every person who sells, dispenses, distributes, furnishes, administers, or gives, or offers to sell, dispense, distribute, furnish, administer, or give, or possesses for sale any synthetic cannabinoid compound, or any synthetic cannabinoid derivative, to any person, is guilty of a misdemeanor, punishable by imprisonment in a county jail not exceeding six months, or by a fine not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment. (Health & Saf. Code, § 11357.5, subd. (a).)
   
2. States that every person who uses or possesses any synthetic cannabinoid compound, or any synthetic cannabinoid derivative, is guilty of an infraction, punishable by a fine not to exceed two hundred fifty dollars ($250). (Health & Saf. Code, § 11357.5, subd. (b).)
   
3. Defines "synthetic cannabinoid compound" as any of the following substances (Health & Saf. Code, § 11357.5, subd. (c).):
   
   1.  1-pentyl-3-(1-naphthoyl)indole (JWH-018);
      
   2. 1-butyl-3-(1-naphthoyl)indole (JWH-073);
      
   3. 1-[2-(4-morpholinyl)ethyl]-3-(1-naphthoyl)indole (JWH-200);
      
   4. 5-(1,1-dimethylheptyl)-2-[(1R,3S)-3-hydroxycyclohexyl]-phenol (CP-47,497); and
      
   5. 5-(1,1-dimethyloctyl)-2-[(1R,3S)-3-hydroxycyclohexyl]-phenol (cannabicyclohexanol; CP-47,497 C8 homologue).
      
4. Provides that every person who sells or distributes, or offers to sell or distribute, any synthetic stimulant compound, as specified, to any person, or who possesses that compound for sale, is guilty of a misdemeanor, punishable by imprisonment in a county jail not to exceed six months, or by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment. (Health & Saf. Code, § 11375.5, subd. (a).)
   
5. Specifies that every person who uses or possesses any synthetic stimulant compound specified in subdivision (c), or any synthetic stimulant derivative, is guilty of an infraction, punishable by a fine not to exceed two hundred fifty dollars ($250). (Health & Saf. Code, § 11375.5, subd. (b).)
   
6. Provides that the list of prohibited synthetic stimulants include any quantity of the following substances, as specified, within any of the following specific chemical designations (Health & Saf. Code, § 11375.5, subd. (c).):
   
   1. Naphthylpyrovalerone whether or not further substituted in the naphthyl ring to any extent with alkyl, alkoxy, alkylenedioxy, haloalkyl, or halide substituents, whether or not further substituted in the naphthyl ring by one or more other univalent substituents, or whether or not further substituted in the carbon chain at the 3-, 4-, or 5-position with an alkyl substituent; and
      
   2. 2-amino-1-phenyl-1-propanone (cathinone) or variation in any of the following ways:
      
      1. By substitution in the phenyl ring to any extent with alkyl, alkoxy, alkylenedioxy, haloalkyl, or halide substituents, whether or not further substituted in the phenyl ring by one or more other univalent substituents.
         
      2. By substitution at the 3-position with an alkyl substituent;
         
      3. By substitution at the nitrogen atom with alkyl, dialkyl, or benzyl groups, or by inclusion of the nitrogen atom in a cyclic structure; and
         
7. Specifies that a controlled substance analog shall be treated the same as specified controlled substances of which it is an analog. (Health & Saf. Code, § 11401, subd. (a).)
   
8. Provides that, except as specified, the term "controlled substance analog" means either of the following:
   
   1. A substance the chemical structure of which is substantially similar to the chemical structure of specified controlled substances; or (Health & Saf.Code, § 11401, subd. (b)(1).)
      
   2. A substance which has, is represented as having, or is intended to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to, or greater than, the stimulant, depressant, or hallucinogenic effect on the central nervous system of specified controlled substances. (Health & Saf. Code, § 11401, subd. (b)(2).)
      
9. Specifies that the term "controlled substance analog" does not mean “any substance for which there is an approved new drug application as specified under the federal Food, Drug, and Cosmetic Act or which is generally recognized as safe and effective as specified by the federal Food, Drug, and Cosmetic Act.” (Health & Saf. Code, § 11401, subd. (c)(1).)
   
10. Lists controlled substances in five “schedules” - intended to list drugs in decreasing order of harm and increasing medical utility or safety - and provides penalties for possession of and commerce in controlled substances.  (Health & Saf. Code §§ 11350-11401.)
    
11. Requires non-violent drug possession offenders to be offered drug treatment on probation, which shall not include incarceration as a condition of probation, in the form of, Proposition 36 (Nov. 2000 election), the Substance Abuse and Crime Prevention Act of 2000 (SACPA). (Pen. Code, § 1210.1.)
    
12. Provides that non-violent drug possession offenses include:
    
    1. Unlawful use, possession for personal use, or transportation for personal use of a controlled substance; and,(Pen. Code, § 1210, subd. (a).)
       
    2. Being under the influence of a controlled substance. (Pen. Code, § 1210, subd. (a).)

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author's Statement: According to the author, "Synthetic cannabinoid compounds have become a growing problem in our community. Part of the reason that drugs dealers are having so much success marketing the drug to teenagers and young adults is that they are able to market them as being legal. Up until my bill last year, simple possession of these drugs was actually perfectly legal under state law. This is despite their well-documented danger. Now it has come to my attention that underground chemists skirt the law by slightly altering the chemical compounds of these drugs, to come up with new versions, which technically, are NOT illegal yet. Senate Bill 139 will close these loopholes in state law and allow law enforcement to be better equipped in getting these drugs away from our communities.”
   
2. Synthetic Cannabinoids: Synthetic cannabinoids come in two basic forms. CB1 cannabinoids bind to CB1 cannabinoid receptors in the brain. CB2 cannabinoid receptors bind to cells throughout the body that are largely involved in regulating the immune system, although their full properties of CB2 are not known. It appears that CB2 cannabinoids could be used to treat inflammation. (THC binds to CB1 and CB2 receptors.) CB1 cannabinoids have psychoactive properties. Typically statutes, news reports and academic works concern CB1 synthetic cannabinoids.
   
   The European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) is a European Union agency that “exists to provide the EU … with a factual overview of European drug problems and a solid evidence base to support the drugs debate.”
   
   The EMCDDA Website includes the Following Information about Synthetic Cannabinoids:

Synthetic cannabinoids …. bind to the same cannabinoid receptors in the brain [as THC] … More correctly designated as cannabinoid receptor agonists, they were developed over the past 40 years as therapeutic agents. …However, it proved difficult to separate the desired properties from unwanted psychoactive effects. Although often referred to simply as synthetic cannabinoids [or synthetic marijuana], many of the substances are not structurally related to the so-called “classical” cannabinoids like THC…

…[L]ittle is known about the detailed pharmacology and toxicology of the synthetic cannabinoids and few formal human studies have been published. It is possible that, apart from high potency, some cannabinoids could have… long half-lives…leading to a prolonged psychoactive effect. … [T]here could [also] be considerable … batch variability… in terms of substances present and …quantity. http://www.emcdda.europa.eu/topics/pods/synthetic-cannabinoids

Recent EMCDD Data on Synthetic Cannabinoids Include:

A synthetic cannabinoid, JWH-018, was first detected in “Spice” products in 2008.

81 new psychoactive substances were reported to EMCDDA in 2013, 29 were synthetic cannabinoids.

105 synthetic cannabinoids in total [were] monitored by EU Early Warning System [in January of 2014].

14 recognizable chemical families of synthetic cannabinoids are known.

The EMCDD reports that most synthetic cannabinoids are manufactured in China and shipped though legitimate distribution networks. The White House Office of National Drug Control Policy states that most synthetic cannabinoids originate overseas, but that they are also being made on a small scale in the United States. https://www.whitehouse.gov/ondcp/ondcp-fact-sheets/synthetic-drugs-k2-spice-bath-salts

The EMCDD reported on adverse consequences of synthetic cannabinoid use:

The adverse health effects associated with synthetic cannabinoids are linked to both the intrinsic nature of the substances and to the way the products are produced. There have been numerous reports of non-fatal intoxications and a small number of deaths associated with their use. As noted above, some of these compounds are very potent; therefore the potential for toxic effects is high. Harm may result from uneven distribution of the substances within the herbal material, result[ing] in products containing doses that are higher than intended.

The reported adverse effects of synthetic cannabinoid products include agitation, seizures, hypertension, emesis (vomiting) and hypokalemia (low potassium levels). …There is some evidence…that synthetic cannabinoids can be associated with psychiatric symptoms, including psychosis. There are also investigations underway in the US regarding links between the use of synthetic cannabinoids… and acute kidney injury and recently, a case report associated the use of the cannabinoid JWH-018 with…strokes in two otherwise healthy males. http://www.emcdda.europa.eu/topics/pods/synthetic-cannabinoids

1. Synthetic Stimulant Chemicals: It appears that the synthetic stimulant chemicals included in this bill are closely related to cathinone, the psychoactive chemical in the khat plant, which is commonly used in the Middle East. Khat and Cathinone are included in Schedule II stimulants. (Health and Saf. Code § 11055, subd. (d)(7)-(8).) Without this bill, it appears that possession of one of the specified synthetic chemicals would be a crime through the analog statute. The analog statute provides that any drug that has a chemical structure or properties that are similar to a scheduled drug can be the subject of prosecution as though the drug were included in the schedules.
   
   The United Kingdom Advisory Council on the Misuse of Drugs (ACMD) is an agency of the UK Home Office that advises policy makers on drug issues. In the past few years, the ACMD has reported on the synthetic stimulants covered by this bill.
   
   Synthetic cathinones are related to the parent compound cathinone, one of the psychoactive principals in khat… Cathinone derivatives are …. analogues of a corresponding phenethylamine. The group includes several substances that have been used as active pharmaceutical ingredients … Since the mid-2000s, unregulated ring-substituted cathinone derivatives have appeared in the European recreational drugs market. The most commonly available cathinones sold on the recreational market in the period up to 2010 appear to be mephedrone (Figure 3) and methylone. [The drugs]… are claimed to have effects similar to those of cocaine, amphetamine or MDMA, but little is known of their detailed pharmacology. Apart from cathinone [and other specified chemicals]. cathinone derivatives are not under international control.
   
   …Like cocaine, the resulting ‘high’ of mephedrone is short-lived. Consequently, users may consume several doses in succession. …[Specified chemical alterations] could [create] more potent [drugs]. It should be noted that…PMA and PMMA are known to have a particularly high toxicity, and this property might translate to their analogues.
   
   As noted above, cathinone is the main psychoactive chemical in the khat plan. Use of khat in the United States has grown in recent decades. The New York State Office of Alcohol and Substance Abuse Services produces research and educational material about drugs. The office has published the following discussion of khat:
   
   Khat has been grown for use as a stimulant for centuries in the Horn of Africa and the Arabian Peninsula. There, chewing khat predates the use of coffee and is used in a similar social context. Its fresh leaves and tops are chewed or…consumed as tea, [producing] euphoria and stimulation. The stimulant effect is most effective when the leaves are still fresh.
   
   Khat use has traditionally been confined to the regions where khat is grown, because only the fresh leaves have the desired… effects. In recent years improved [transportation] has increased the global distribution.
   
   …In 1975, the [chemical] cathinone was isolated [from khat]. Cathinone is not very stable and breaks down to produce cathine and norephedrine. These chemicals belong to the PPA (phenylpropanolamine) family, a subset of the phenethylamines related to amphetamines and the catecholamines, epinephrine and norepinephrine.
   
2. Drug Analog Law in California: California law treats a substance that is the chemical or functional equivalent of a drug listed in Schedule I or II of the controlled substance schedules the same as the scheduled drug. Such a substance is defined as a controlled substance analog. California law allows prosecution of a person for possession of, or commerce in, of a substance that is an analog of a Schedule I or II drug. (Health & Saf. Code, §§ 11400-11401.) The purpose of the analog law is to prevent street chemists from circumventing drug laws by synthesizing drugs which have slight chemical or functional differences from the prohibited drug.
   
   Newly developed synthetic cannabinoids are not covered by the California analog statute synthetic cannabinoids are not included in Schedule I or II of the controlled substances schedules. Illegal synthetic cannabinoids are separately defined and prohibited.
   
   California’s drug analog law provides two ways to establish that a substance is an analog of a drug. The first method relies on demonstrating that the substance has a chemical structure which is “substantially similar” to the chemical structure of the drug. (Health & Saf.Code, § 11401, subd. (b)(1).) The second method requires a showing that the substance has, is represented as having, or is intended to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is “substantially similar” to the effect of the drug. (Health & Saf. Code, § 11401, subd. (b)(2).)
   
3. Alterations of Chemical Compounds in the Future: The author has expressed concern that individuals manufacturing synthetic cannabanoids can avoid criminal repercussions by slightly changing the chemical compound of substance that is currently on the list of substances prohibited on the list of synthetic cannabinoids.
   
   The Author states “. . . it has come to my attention that underground chemists skirt the law by slightly altering the chemical compounds of these drugs, to come up with new versions, which technically, are NOT illegal yet.” (Author’s Statement, supra.)
   
   Existing law currently prohibits synthetic cannabinoids and synthetic cannabinoid derivatives. (Health & Saf. Code, § 11357.5, subd. (c).) Existing law lists five chemical compounds as synthetic cannabinoids. Each chemical compound is described by its chemical structure. The author has chosen to add a number of categories and substances (described by their chemical structure) to the existing list of prohibited synthetic cannabinoids. It is not clear that expanding the list will prevent street chemists from continuing to tweak the chemical structure of substances in the future in an attempt to create a substance which is not included in the list.
   
   SB 1036 (Hernandez) takes a different approach to prohibiting synthetic cannabinoids which are not specifically listed under the current statute. SB 1036 includes synthetic cannabinoids within the existing analog statute. If synthetic cannabinoids are included in the analog statute, the status of any substances with new chemical compositions can be established through expert opinion as an analog of the synthetic cannabinoids which are currently prohibited. SB 1036 (Hernández) is currently awaiting hearing in the Assembly Appropriations Committee.
   
4. Argument in Support: According to The California Police Chiefs Association, “SB 139 is aimed at prohibiting possession of 'bath salts' and 'spice' and encouraging entry into treatment programs. In addition, SB 139 is drafted so as to be chemically current, thereby preventing bath salts and spice manufacturers from chemically evading the law by making molecular adjustments to their manufacturing process. Senate Bill 139 will assure that Bath Salts cannot continue to cause harm.
   
   “Getting people into treatment is literally lifesaving. The effects of these drugs include agitation, paranoia, hallucinations, severe chest pains, increased pulse, high blood pressure, hyper-aggressive behavior and suicidal thinking/behavior/ Most disturbing, suicidal thinking/behavior may last even after the stimulatory effects of the drugs have worn off. Equally disturbing, the addictive nature of these drugs is so powerful that – even with these symptoms – users report an eagerness to go back and use again. Without treatment intervention, persons using these drugs face a continued downward cycle.”
   
5. Argument in Opposition: According to The American Civil Liberties Union of California, “Using the criminal justice system to address substance abuse has led to a broken criminal justice system and billions of wasted taxpayer dollars. The state’s current reliance on criminalization of drug abuse does not work, and increasing penalties for simple possession of the drugs targeted by SB 139 will do nothing to resolve existing problems.
   
   “Furthermore, the creation of new misdemeanors may further exacerbate California’s jail overcrowding problem. According to Public Policy Institute of California, “[a]s of September 2012, the average daily jail population was about 3,954 inmates over the statewide rated jail capacity of 76,910 inmates, set by the California Board of State and Community Corrections. Twenty-one counties had an average daily population greater than their rated capacity. Additionally, 18 counties were operating under court-ordered population caps for at least one jail in their county...” Given that the policy of incarceration for possession has been a dismal failure in California and the nation, we should not undertake to pass new penalties that will further strain the capacity of California’s county jails.”
   
6. Related Legislation: SB 1036 (Hernández), would expand the definition of controlled substance analog to include a substance the chemical structure of which is substantially similar to the chemical structure of a synthetic cannabinoid compound. SB 1036 is awaiting hearing in the Assembly Appropriation Committee.
   
7. Prior Legislation:
   
   1. SB 1283 (Galgiani), Chapter 372, Statutes of 2013, makes the use or possession of specified synthetic stimulant compounds or synthetic stimulant derivatives, punishable by a fine not exceeding $250.
      
   2. AB 2420 (Hueso,) 2011-2012 Legislative Session, would have created infraction and misdemeanor penalties for possession or use of specified synthetic stimulants and synthetic cannabinoids. AB 2420 failed passage in the Assembly Public Safety Committee.
      
   3. AB 486 (Hueso), Chapter 656, Statutes of 2011, prohibited the sale, dispensing, distribution, furnishment, administration or giving, or attempt to do so, of any synthetic stimulant compound of any specified synthetic stimulant derivative. Violation of this section is punishable by imprisonment in a county jail not exceeding 6 months, or by a fine not exceeding $1,000, or by both that fine and imprisonment.
      
   4. SB 420 (Hernandez), Chapter 420, Statutes of 2011, prohibited the sale, dispensing, distribution, administration or giving, or attempt to do so, of any synthetic cannabinoid compound or any synthetic cannabinoid derivative. Violation of this section is punishable by imprisonment in a county jail not exceeding 6 months, or by a fine not exceeding $1,000, or by both that fine and imprisonment.

REGISTERED SUPPORT / OPPOSITION:

Support

California Narcotics Officers’ Association (Sponsor)
Association of Orange County Deputy Sheriffs
California District Attorneys Association
California Police Chiefs Association
California Statewide Law Enforcement Association
City of San Marcos

Fraternal Order of Police, California State Lodge
Long Beach Police Officers Association
Sacramento County Deputy Sheriffs’ Association
San Diego County District Attorney

Opposition

American Civil Liberties Union of California
Drug Policy Alliance
Legal Services for Prisoners with Children

Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744

 THIRD READING  

Bill No: SB 139

Author: Galgiani (D), et al.

Amended: 8/18/15

Vote: 27 - Urgency

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 7/14/15

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

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SUBJECT: Controlled substances

SOURCE: California Narcotics Officers Association

DIGEST: This bill makes it an infraction to use or possess specified synthetic cannabinoid or stimulant drugs beginning on the effective date of this bill, not as of January 1, 2016, as provided in existing law. This bill greatly expands the definition of a stimulant compound synthetic cannabinoid and greatly expands the definition of a synthetic cannabinoid to include numerous chemical families or classes and a myriad of individual chemicals.

ANALYSIS:

Existing law:

1. Provides that any person who possesses for sale, sells or furnishes any synthetic cannabinoid compound shall be punished by imprisonment in the county jail for up to six months, a fine of up to $1,000, or both. (Health & Saf. Code § 11357, subd. (a.)

2. Provides that any person who sells, dispenses, distributes, or gives the stimulant substances naphthylpyrovalerone or cathinone, or specified variations of these drugs, or who offers to do such acts, is guilty of a misdemeanor, punishable by a jail term of up to six months, a fine of up to $1,000, or both. (Health & Saf. Code § 11375.5.)

3. Holds that within the context of Health and Safety Code Section 11550, “use” of a controlled substance means current use, or use immediately prior to arrest. (Bosco v. Justice Court (1978) 77 Cal.App.3d 179, 191; People v. Velasquez (1976) 54 Cal.App.3d 695.)

4. Provides that beginning on January 1, 2016, a person who “uses or possesses” a specified synthetic cannabinoid or specified synthetic stimulant is guilty of an infraction. (Health and Saf. Code § 11357.5, subd. (b).)

This bill:

1. Provides, as an urgency measure, that the infraction for possession of a specified synthetic cannabinoid or synthetic stimulant shall become effective upon the date the measure is approved by the governor.

2. Updates the list of drugs or chemicals deemed to be synthetic cannabinoids by adding a myriad chemical groups and individual chemicals and similarly updates the list of specified, prohibited synthetic stimulants.

Background

Synthetic cannabinoids come in two basic forms. CB1 cannabinoids bind to CB1 cannabinoid receptors in the brain and have psychoactive properties. CB2 cannabinoid receptors bind to cells throughout the body that are largely involved in regulating the immune system. (THC binds to CB1 and CB2 receptors) (http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3567606/.) The concerns

raised about synthetic cannabinoids appear to involve chemicals that bind to CB1 receptors.

The European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) is a European Union agency that “exists to provide the EU … with a factual overview of European drug problems and a solid evidence base to support the drugs debate.”

The EMCDDA website includes the following about synthetic cannabinoids:

Synthetic cannabinoids …. bind to the same cannabinoid receptors in the brain [as THC] … More correctly designated as cannabinoid receptor agonists, they were developed over the past 40 years as therapeutic agents. … However, it proved difficult to separate the desired properties from unwanted psychoactive effects. Although often referred to simply as synthetic cannabinoids [or synthetic marijuana], many of the substances are not structurally related to the so-called “classical” cannabinoids like THC…

…[L]ittle is known about the detailed pharmacology and toxicology of the synthetic cannabinoids and few formal human studies have been published. It is possible that, apart from high potency, some cannabinoids could have… long half-lives…leading to a prolonged psychoactive effect. … [T]here could [also] be considerable … batch variability… in terms of substances present and …quantity.

The EMCDD reports that most synthetic cannabinoids are manufactured in China and shipped though legitimate distribution networks. (http://www.emcdda.europa.eu/topics/pods/synthetic-cannabinoids.) The White House Office of National Drug Control Policy states that most synthetic cannabinoids originate overseas, but that they are also being made on a small scale in the United States. (https://www.whitehouse.gov/ondcp/ondcp-fact-sheets/synthetic-drugs-k2-spice-bath-salts)

The EMCDD reported on adverse consequences of synthetic cannabinoid use:

The adverse health effects associated with synthetic cannabinoids are linked to both the intrinsic nature of the substances and to the way the products are produced. …As noted above, some of these compounds are very potent; therefore the potential for toxic effects is high. Harm may result from uneven distribution of the substances within the herbal material, result[ing] in products containing doses that are higher than intended.

The reported adverse effects of synthetic cannabinoid products include agitation, seizures, hypertension, emesis (vomiting) and hypokalemia (low potassium levels). …There is some evidence…that synthetic cannabinoids can be associated with psychiatric symptoms, including psychosis. There are also investigations underway in the US regarding links between the use of synthetic cannabinoids… and acute kidney injury and recently, a case report associated the use of the cannabinoid JWH-018 with…strokes...

There are 14 currently known “families” or classes of synthetic cannabinoids. The bill appears to include them all. The EMCDD noted that 105 individual chemicals in these classes were being monitored in Europe in 2014. This bill includes hundreds of individual chemicals in the list of prohibited synthetic cannabinoids. Many of the chemicals are identified through a letter and number combination, such as JWH-018, AM-087 and HU-210. The letters are generally the initials of the researcher who first synthesized the chemical or the institution where the research was done.

The background provided by the author and sponsor includes model statutes for prohibiting synthetic cannabinoids and synthetic stimulants. The model statute was drafted by the National Alliance for Model State Drug Laws. (http://www.namsdl.org/about.cfm.) The list of chemicals in the bill reflects the model statute. The purpose of describing synthetic cannabinoids by class or family is to include any new chemical in each class as a prohibited substance. That is, if a new drug is developed in any of the 14 classes, the chemical is prohibited, regardless of whether the individual chemical is included in the statute. It is not known whether many new synthetic cannabinoid classes can or will be developed. Synthesis of a new class or family of cannabinoids would not be included in the list of prohibited chemicals.

From 2010 through 2011, reported emergency room (ER) visits linked to synthetic cannabinoids increased from 11,406 to 28,531. The vast majority of patients were young males, ages 12 through 20. (http://www.samhsa.gov/data/sites/default/files/SR-1378/SR-1378.pdf) This is a relatively small number of ER visits, as total drug-related ER visits numbered 2,460,000 in 2011. Of the 2,300,000 ER visits in 2010, approximately 460,000 concerned marijuana and approximately 11,000 concerned synthetic cannabinoids. However, the reported number of synthetic cannabinoid ER visits likely understates actual visits, as testing availability is limited and some medical personnel might not be familiar with the drugs. The ER studies reported that very few patients engaged in follow-up treatment. It is not clear whether ER doctors did not make referrals for additional care, or if patients chose not to seek it.

Very recently, ER visits for synthetic cannabinoids have spiked. As use of these drugs appears to be dropping, the surge in ER visits is likely the result of a dangerous change in chemical composition of the drugs. One who obtains a synthetic cannabinoid can only guess as to its composition and effects. The New York Times explained in an April 24, 2015 article: “[Synthetic cannabinoids …typically imported from China by American distributors, come in hundreds of varieties; new formulations appear monthly, with molecules subtly tweaked to try to skirt the DEA's list of illegal drugs as well as drug-detecting urine tests. … [E]each new variety can present distinct health risks caused by its underlying chemistry or contaminants in renegade manufacturing facilities.”

A United Nations report in 2011 considered the addictive potential of synthetic cannabinoids. The report found a number of synthetic cannabinoids could produce dependence because uses may quickly develop tolerance to the drug. However, the chemical composition of synthetic cannabinoids changes rapidly, often with a different affinity for cannabinoid receptors and a different effect on the user. It is not clear if there is a general dependence or addictive quality among synthetic cannabinoids, such that use of one chemical or substance would contribute to dependence on another, or other, synthetic cannabinoids.

The University of Michigan Monitoring the Future survey first asked 8^th and 10th graders about their use of synthetic [cannabinoids] in 2011. The survey found that in 2012 annual prevalence rates were 4.4% and 8.8%, respectively. Use in all grades fell in 2013, and the decline was sharp among 12th graders The declines continued into 2014 and were significant for both 10th and 12th graders; use for all grades declined 40% in 2014 from peak use in 2011 Awareness of the dangers of synthetic cannabinoid was up sharply among 12 graders. (http://monitoringthefuture.org/pubs/monographs/mtf-overview2014.pdf.) The use of synthetic stimulants among 8, 10^th and 12 graders was first reported in the survey in 2012, with approximately 1% of students having tried the drug. Use of synthetic stimulants has also declined significantly – down approximately 20% from 2012 to 2014.

The decline in the use of synthetic cannabinoids and synthetic stimulants was preceded by a precipitous drop in the use of the psychedelic salvia divinorum – another drug that gained popularity and some infamy around 2008. Since peak use (of 3.6%) by students in 2011 and 2012, use of salvia declined 61%. Sale or distribution of salvia was made a misdemeanor in 2008, but no penalties exist for possession or use. The decline in use appears to result from negative experiences by users, such as a frightening sensation of falling through space, not criminal penalties.

It appears that the synthetic stimulant chemicals included in this bill are closely related to cathinone, the psychoactive chemical in the khat plant, which is commonly used in the Middle East. Khat and Cathinone are Schedule II stimulants. (Health and Saf. Code § 11055, subd. (d)(7)-(8).) Without this bill, it appears that possession of one of the specified synthetic chemicals would be a crime through the analog statute. The analog statute provides that any drug that has a chemical structure or properties that are similar to a scheduled drug can be the subject of prosecution as though the drug were included in the schedules.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

SUPPORT: (Verified 8/25/15)

California Narcotics Officers Association (source)

Association for Los Angeles Deputy Sheriffs

California Association of Code Enforcement Officers

California College and University Police Chiefs Association

California District Attorneys Association

California Police Chiefs Association

California State Sheriffs’ Association

Los Angeles Police Protective League

Riverside Sheriffs Association

OPPOSITION: (Verified 8/25/15)

American Civil Liberties Union

Legal Services for Prisoners with Children

Prepared by: Jerome McGuire / PUB. S. /

8/26/15 16:42:55

**** END ****

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Loni Hancock, Chair

2015 - 2016 Regular

Bill No: SB 139 Hearing Date: July 14, 2015

Subject: Controlled Substances

HISTORY

Source: California Narcotics Officers Association

Prior Legislation: SB 1283 (Galgiani) - Ch. 372, Stats. 2013

AB 486 (Hueso) - Ch. 656, Stats. 2011

SB 420 (Hernandez) - Ch. 420, Stats. 2011

AB 2420 (Hueso) - Died in Assembly Public Safety, 2012

AB 1141 (Anderson) - Ch. 292, Stats 2007

Support: Association for Los Angeles Deputy Sheriffs; California Association of Code Enforcement Officers; California College and University Police Chiefs Association; California District Attorneys Association; California Police Chiefs Association; California State Sheriffs’ Association; Los Angeles Police Protective League; Riverside Sheriffs Association

Opposition: American Civil Liberties Union; Legal Services for Prisoners with Children

PURPOSE

The purpose of this bill is to 1) provide that possession of specified synthetic cannabinoids or specified synthetic stimulants is a crime, with the following classes of offense and penalties: First offense is an infraction, punishable by a fine of up to $250; a second offense is an infraction or misdemeanor, with a misdemeanor fine of up to $500, a jail term of up to six months, or both; a third or subsequent offense is a misdemeanor, punishable by a fine of up to $1,000, a jail term of up to one year, or both; 2) add numerous specified drugs or chemicals to the existing list of prohibited synthetic cannabinoids; and 3) add specified synthetic stimulants to the statutory list of prohibited drugs of that type.

Existing law lists controlled substances in five “schedules” - intended to reflect decreasing order of harm and increasing medical utility or safety - and provides penalties for possession of and commerce in controlled substances. (Health & Saf. Code §§ 11350-11401.)

Existing law lists cathinone as a Schedule II controlled substance stimulant and provides that simple possession of cathinone is a misdemeanor, punishable by a jail term of up to six month, a fine of up to $1,000, or both. (Health & Saf. Code §§ 11055, subd. (d)(8) and 11377, subd. (b)(3).)

Existing law provides that possession for sale of khat or cathinone is a felony punishable by 16 months, 2 years, or 3 years in state prison. (Health & Saf. Code § 11378.)

Existing law provides that transportation, sale, or furnishing of khat or cathinone is a felony punishable by 2, 3, or 4 years in state prison and a fine of up to $10,000. (Health & Saf. Code § 11379.)

Existing law provides that any person who possesses for sale, sells or furnishes any synthetic cannabinoid compound shall be punished by imprisonment in the county jail for up to six months, a fine of up to $1,000, or both. (Health & Saf. Code § 11357, subd. (a.)

Existing law provides that any person who sells, dispenses, distributes, or gives the stimulant substances naphthylpyrovalerone or cathinone, or specified variations of these drugs, or who offers to do such acts, is guilty of a misdemeanor, punishable by a jail term of up to six months, a fine of up to $1,000, or both. (Health & Saf. Code § 11375.5.)

Existing law provides that it is a misdemeanor to “use or be under the influence of” a specified controlled substance. (Health & Saf. Code § 11550.) Penalties and special provisions for being under the influence of a controlled substance are the following:

• First time conviction: Jail term of 90 days to one year. Probation may last up to five years. The court must include a 90-day jail term as a condition of probation;

• Third conviction within seven years of the prior convictions: If the defendant refuses to complete a licensed drug treatment program, the court must impose a term of at least 180 days in jail unless there are no reasonably available licensed programs;

• The court may allow a defendant convicted for a second time to complete a licensed drug treatment program in lieu of all or part of the mandatory jail term; and,

• Counties are encouraged to augment applications for federal and state drug treatment money to treat persons convicted of this offense. (Health & Saf. Code § 11550, subds. (a)-(c.)

Existing decisional law holds that within the context of Health and Safety Code Section 11550, “use” of a controlled substance means current use, or use immediately prior to arrest. (Bosco v. Justice Court (1978) 77 Cal.App.3d 179, 191; People v. Velasquez (1976) 54 Cal.App.3d 695.)

Existing Law – Proposition 36 (Nov. 2000 election), the Substance Abuse and Crime Prevention Act of 2000 (SACPA) – requires non-violent drug possession offenders to be offered drug treatment on probation, which shall not include incarceration as a condition of probation. (Pen. Code §§ 1210-1210.5.)

Existing law provides that non-violent drug possession offenses include:

• Unlawful use, possession for personal use, or transportation for personal use of a controlled substance;

• Being under the influence of a controlled substance; and, (Health and Saf. Code § 11550.); and, SACPA eligibility is not affected by the classification of the underlying; drug possession offense as a felony or misdemeanor. The controlling factor is that the drug is a controlled substance. (Pen. Code § 1210.)

Existing law provides that beginning on January 1, 2016, a person who “uses or possesses” a specified synthetic cannabinoid or specified synthetic stimulant is guilty of an infraction. (Health and Saf. Code § 11357.5.)

This bill provides that possession or use of a specified synthetic cannabinoid or synthetic stimulant is guilty of a crime, as follows:

• The first offense is an infraction, punishable by a fine of up to $250.

• The second offense is an infraction or misdemeanor. The infraction penalty is a fine of up to $250 and the misdemeanor is punishable by imprisonment in a county jail not to exceed six months, a fine of up to $500, or both.

• A third or subsequent offense is a misdemeanor, punishable by a jail term not to exceed six months, a fine of up to $1,000, or both.

This bill adds an extensive list of specified classes of synthetic cannabinoids and individual chemicals to the definition of a synthetic cannabinoid that appears in current criminal statutes, as specified.

This bill adds a number of synthetic stimulants – essentially synthetic cathinones¹ - to the list of these prohibited substances in existing law.

This bill is an urgency measure.

RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

For the past eight years, this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.

On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:

• 143% of design bed capacity by June 30, 2014;

• 141.5% of design bed capacity by February 28, 2015; and,

• 137.5% of design bed capacity by February 28, 2016.

In February of this year the administration reported that as “of February 11, 2015, 112,993 inmates were housed in the State’s 34 adult institutions, which amounts to 136.6% of design bed capacity, and 8,828 inmates were housed in out-of-state facilities. This current population is now below the court-ordered reduction to 137.5% of design bed capacity.”( Defendants’ February 2015 Status Report In Response To February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).

While significant gains have been made in reducing the prison population, the state now must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:

• Whether a proposal erodes a measure which has contributed to reducing the prison population;

• Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;

• Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;

• Whether a proposal corrects a constitutional problem or legislative drafting error; and

• Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.

COMMENTS

1. Need for This Bill

According to the author:

The danger and prevalence of synthetic drugs has been well-documented in news media stories throughout the state and country. From the 16-year old in Indianapolis who passed away after his first time trying the drug (http://fox59.com/2015/02/03/new-synthetic-drug-bill-proposed-as-statewide-ban-is-thrown-out/), to the 18 year old in North Dakota who died on a street corner after trying the drug (http://www.cnn.com/2014/12/01/us/synthetic-drugs-investigation/), to right here in our own backyards where a 19 year old died after simply taking one hit of the drug (http://www.news10.net/story/news/local/ roseville/2014/08/08/roseville-teen-dies-after-smoking-spice-connor-eckhardt/13782433/), we are undoubtedly watching the spread of a deadly and extremely dangerous new substance.

On February 4th of this year NBC 4 of Southern California ran a story detailing how synthetic drugs are now the second most used illicit drug by high school seniors; second only to marijuana (http://www.nbclosangeles.com/news/local/ Designer-Drugs-Rise-Teens-Spice-Lean-Bath-Salts-291000251.html). The market for these drugs is fundamentally rooted in demand from our youth here in California. Just last year in my district, a drug bust netting over $20 million worth of synthetic drugs took place at warehouses in Stockton and Millbrae (http://sacramento.cbslocal.com/2014/05/07/stockton-warehouse-raided-as-part-of-nationwide-crackdown-on-spice-drug/). In Bakersfield, a drug bust uncovered over 1,000 pounds of these drugs and over $2.7 million in cash (http://www. huffingtonpost.com/2013/12/17/bath-salts-michael-kamar_n_4459846.html). Two Orange County men were also recently arrested for allegedly selling more than $12 million worth of substances used to create synthetic drugs (http://www.latimes.com/local/lanow/oc-men-charged-bath-salts-drug-ring--20140613-story.html). Finally, multiple synthetic drug busts in Texas have been accredited to being manufactured here in California, indicating the sophistication of these local operations. (http://www.news-journal.com/news/police/raid-hits-longview-stores-that-sell-synthetic-drug-owners-arrested/article_6ede7edf-9000-55c3-b8d6-cd5f4d41d342.html). (http://www.connectamarillo.com/news/story. aspx?id=1156375#.VNj1OsnlwfA).

Part of the reason that these drugs dealers are having so much success marketing the drug to teenagers and young adults is that they are able to market them as being legal. Up until my bill last year, simple possession of these drugs was actually perfectly legal under state law. This is despite their well-documented danger. Now it has come to my attention that, underground chemists skirt the law by slightly altering the chemical compounds of these drugs, to come up with new versions, which technically, are NOT illegal yet. Senate Bill 139 will close these loopholes in state law and allow law enforcement to be better equipped in getting these drugs away from our communities.

2. Background – Synthetic Cannabinoids

Synthetic cannabinoids come in two basic forms. CB1 cannabinoids bind to CB1 cannabinoid receptors in the brain. CB2 cannabinoid receptors bind to cells throughout the body that are largely involved in regulating the immune system, although their full properties of CB2 are not known. It appears that CB2 cannabinoids could be used to treat inflammation. (THC binds to CB1 and CB2 receptors.) C1 cannabinoids have psychoactive properties.² Typically statutes, news reports and academic works concern CB1 synthetic cannabinoids.

The European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) is a European Union agency that “exists to provide the EU … with a factual overview of European drug problems and a solid evidence base to support the drugs debate.”

The EMCDDA website includes the Following Information about Synthetic Cannabinoids:

Synthetic cannabinoids …. bind to the same cannabinoid receptors in the brain [as THC] … More correctly designated as cannabinoid receptor agonists, they were developed over the past 40 years as therapeutic agents. … However, it proved difficult to separate the desired properties from unwanted psychoactive effects. Although often referred to simply as synthetic cannabinoids [or synthetic marijuana], many of the substances are not structurally related to the so-called “classical” cannabinoids like THC…

…[L]ittle is known about the detailed pharmacology and toxicology of the synthetic cannabinoids and few formal human studies have been published. It is possible that, apart from high potency, some cannabinoids could have… long half-lives…leading to a prolonged psychoactive effect. … [T]here could [also] be considerable … batch variability… in terms of substances present and …quantity.

Recent EMCDD data on synthetic cannabinoids include:

• A synthetic cannabinoid, JWH-018, was first detected in “Spice” products in 2008.

• 81 new psychoactive substances were reported to EMCDDA in 2013, 29 were synthetic cannabinoids.

• 105 synthetic cannabinoids in total [were] monitored by EU Early Warning System [in January of 2014].

• 14 recognizable chemical families of synthetic cannabinoids are known.

The EMCDD reports that most synthetic cannabinoids are manufactured in China and shipped though legitimate distribution networks.³ The White House Office of National Drug Control Policy⁴ states that most synthetic cannabinoids originate overseas, but that they are also being made on a small scale in the United States.

The EMCDD reported⁵ on adverse consequences of synthetic cannabinoid use:

The adverse health effects associated with synthetic cannabinoids are linked to both the intrinsic nature of the substances and to the way the products are produced. There have been numerous reports of non-fatal intoxications and a small number of deaths associated with their use. As noted above, some of these compounds are very potent; therefore the potential for toxic effects is high. Harm may result from uneven distribution of the substances within the herbal material, result[ing] in products containing doses that are higher than intended.

The reported adverse effects of synthetic cannabinoid products include agitation, seizures, hypertension, emesis (vomiting) and hypokalemia (low potassium levels). …There is some evidence…that synthetic cannabinoids can be associated with psychiatric symptoms, including psychosis. There are also investigations underway in the US regarding links between the use of synthetic cannabinoids… and acute kidney injury and recently, a case report associated the use of the cannabinoid JWH-018 with…strokes in two otherwise healthy males.

3. This Bill is Drawn From a Model Statute and Lists 14 Classes or Families of Synthetic Cannabinoids and Myriad Individual Chemicals

As noted above, there are 14 currently known “families” or classes of chemicals. The bill appears to include them all. The EMCDD noted that 105 individual chemicals in these classes were being monitored in Europe in 2014. This bill appears to include hundreds of individual chemicals in the list of prohibited synthetic cannabinoids. Many of the chemicals are identified through a letter and number combination, such as JWH-018, AM-087 and HU-210. The letters are generally the initials of the researcher who first synthesized the chemical or the institution where the research was done.

The background provided by the author and sponsor includes model statutes for prohibiting synthetic cannabinoids and synthetic stimulants. The model statute was drafted by the National Alliance for Model State Drug Laws.⁶ The list of chemicals in the bill appears to be copied from the model statute. The purpose of describing synthetic cannabinoids by class or family is to include any new chemical in each class as a prohibited substance. That is, if a new drug is developed in any of the 14 classes, the chemical is prohibited, regardless of whether the individual chemical is included in the statute. It is not known whether many new synthetic cannabinoid classes can or will be developed. Synthesis of a new class or family of cannabinoids would not be included in the list of prohibited chemicals.

4. Emergency Room Visits Related to Synthetic Cannabinoids

From 2010 through 2011, reported emergency room (ER) visits linked to synthetic cannabinoids increased from 11,406 to 28,531. The vast majority of patients were young males, ages 12 through 20.⁷ This is a relatively small number of ER visits, as total drug-related ER visits numbered 2,460,000 in 2011. Of the 2,300,000 ER visits in 2010, approximately 460,000 concerned marijuana and approximately 11,000 concerned synthetic cannabinoids. However, the reported number of synthetic cannabinoid ER visits likely understates actual visits, as testing availability is limited and some medical personnel might not be familiar with the drugs. The ER studies reported that very few patients engaged in follow-up treatment. It is not clear whether ER doctors did not make referrals for additional care, or if patients chose not to seek it.

Very recently, ER visits for synthetic cannabinoids have spiked. As use of these drugs appears to be dropping, the surge in ER visits is likely the result of a dangerous change in chemical composition of the drugs. One who obtains a synthetic cannabinoid can only guess as to its composition and effects.⁸

The New York Times explained in an April 24, 2015 article: “[Synthetic cannabinoids …typically imported from China by American distributors, come in hundreds of varieties; new formulations appear monthly, with molecules subtly tweaked to try to skirt the DEA's list of illegal drugs as well as drug-detecting urine tests. … [E]each new variety can present distinct health risks caused by its underlying chemistry or contaminants in renegade manufacturing facilities.”

5. United Nations Report on Synthetic Cannabinoids Addresses the Issue of Dependence or Addiction

A United Nations report in 2011 considered the addictive potential of synthetic cannabinoids. The report found:

Some reports suggest that a number of these substances may have a higher addictive potential compared to cannabis due to quicker development of tolerance [26, 53]. 11 In a case report published by Zimmermann et al. in 2009 [53], withdrawal phenomena and a dependence syndrome occurred after repeated consumption of relatively high doses of ‘Spice gold’, i.e. 3 g per day. From experiments carried out with autaptic hippocampal neurons, it was shown that JWH‐018 could potently induce rapid and robust CB1 receptor internalization, highlighting the potential of developing tolerance and dependence on this substance [26].  

It appears that users who consume the same synthetic cannabinoid substance could become dependent or habituated relatively quickly. However, the chemical composition of synthetic cannabinoids changes rapidly, often with a different affinity for cannabinoid receptors and a different effect on the user. It is not clear if there is a general dependence or addictive quality among synthetic cannabinoids, such that use of one chemical or substance would contribute to dependence on another, or other, synthetic cannabinoids. Multiple synthetic cannabinoids that bind to the same cannabinoid receptors would perhaps be likely to produce dependence when consumed separately. One controlled study found evidence that synthetic cannabinoids in the JWH class produced dependence symptoms in mice. The study cautioned that the results might not apply to all chemicals of that class and that some cannabinoid binding chemicals did not appear to produce symptoms of dependence.⁹

6. Synthetic Cannabinoid and Synthetic Stimulant Use is Falling Rapidly Among Young People

The University of Michigan Monitoring the Future survey first asked 8^th and 10th graders about their use of synthetic [cannabinoids] in 2011. The survey found that in 2012 annual prevalence rates were 4.4% and 8.8%, respectively. Use in all grades dropped in 2013, and the decline was sharp and significant among 12th graders The declines continued into 2014 and were significant for both 10th and 12th graders; use for all grades declined 40% in 2014 from peak use in 2011 Awareness of the dangers of synthetic cannabinoid was up sharply among 12 graders.¹⁰

The use of synthetic stimulants among 8, 10^th and 12 graders was first reported in the survey in 2012, with approximately 1% of students having tried the drug. Use of synthetic stimulants has also declined significantly – down approximately 20% from 2012 to 2014.¹¹

The decline in the use of synthetic cannabinoids and synthetic stimulants was preceded by a precipitous drop in the use of the psychedelic salvia divinorum – another drug that gained popularity and some infamy around 2008. Since peak use (of 3.6%) by students in 2011 and 2012, use of salvia declined 61%. Sale or distribution of salvia was made a misdemeanor in 2008, but no penalties exist for possession or use.¹² The decline in use appears to result from negative experiences by users, such as a frightening sensation of falling through space, not criminal penalties.¹³

7. Background on Synthetic Stimulants Covered by This Bill

It appears that the synthetic stimulant chemicals included in this bill are closely related to cathinone, the psychoactive chemical in the khat plant, which is commonly used in the Middle East. Khat and Cathinone are included in Schedule II stimulants. (Health and Saf. Code § 11055, subd. (d)(7)-(8).) Without this bill, it appears that possession of one of the specified synthetic chemicals would be a crime through the analog statute. The analog statute provides that any drug that has a chemical structure or properties that are similar to a scheduled drug can be the subject of prosecution as though the drug were included in the schedules.

The United Kingdom Advisory Council on the Misuse of Drugs (ACMD) is an agency of the UK Home Office that advises policy makers on drug issues. In the past few years, the ACMD has reported on the synthetic stimulants covered by this bill.¹⁴

Synthetic cathinones are related to the parent compound cathinone, one of the psychoactive principals in khat… Cathinone derivatives are …. analogues of a corresponding phenethylamine. The group includes several substances that have been used as active pharmaceutical ingredients … Since the mid-2000s, unregulated ring-substituted cathinone derivatives have appeared in the European recreational drugs market. The most commonly available cathinones sold on the recreational market in the period up to 2010 appear to be mephedrone (Figure 3) and methylone. [The drugs]… are claimed to have effects similar to those of cocaine, amphetamine or MDMA, but little is known of their detailed pharmacology. Apart from cathinone [and other specified chemicals]. cathinone derivatives are not under international control.

…Like cocaine, the resulting ‘high’ of mephedrone is short-lived. Consequently, users may consume several doses in succession. …[Specified chemical alterations] could [create] more potent [drugs]. It should be noted that…PMA and PMMA are known to have a particularly high toxicity, and this property might translate to their analogues.

As noted above, cathinone is the main psychoactive chemical in the khat plan. Use of khat in the United States has grown in recent decades. The New York State Office of Alcohol and Substance Abuse Services produces research and educational material about drugs. The office has published the following discussion of khat:¹⁵

Khat has been grown for use as a stimulant for centuries in the Horn of Africa and the Arabian Peninsula. There, chewing khat predates the use of coffee and is used in a similar social context. Its fresh leaves and tops are chewed or…consumed as tea, [producing] euphoria and stimulation. The stimulant effect is most effective when the leaves are still fresh.

Khat use has traditionally been confined to the regions where khat is grown, because only the fresh leaves have the desired… effects. In recent years improved [transportation] has increased the global distribution.

…In 1975, the [chemical] cathinone was isolated [from khat]. Cathinone is not very stable and breaks down to produce cathine and norephedrine. These chemicals belong to the PPA (phenylpropanolamine) family, a subset of the phenethylamines related to amphetamines and the catecholamines, epinephrine and norepinephrine.

8. Previous Similar Bill – SB 1283 (Galgiani) Ch. 372, Statutes of 2014

In 2014, the Committee heard another bill - SB 1283 (Galgiani) - concerning synthetic cannabinoids and synthetic cathinone drugs. SB 1283 becomes effective in 2016. SB 1283 was amended in this Committee to reflect the same basic penalty structure as in this bill. That is, a first offense is an infraction, punishable by a fine of up to $250. A second offense is an infraction or a misdemeanor. A third or subsequent offense is a misdemeanor. However, the bill included novel provisions concerning the education and treatment of defendants found to be in possession of a listed synthetic drug. The amendments (stripped from the bill in the Assembly) provided that a defendant could elect to participate in an education program. If the defendant successfully completed the education program, the fine that he or she paid would be returned. The bill included community services provisions and made defendants eligible for the Substance Abuse and Crime Prevention Act (SACPA) - Proposition 36 of 2000.

SB 1283 requested the UCLA Luskin School of Public Affairs to design the education program or designate another entity to do so. The Luskin School houses a respected concentration in Crime and Drug Control Policy. The bill further directed the Judicial Council to approve and help implement the education program. In Senate Appropriations, the bill was narrowed and implementation delayed until 2016. In the Assembly, the misdemeanor provisions and the education program were stricken from the bill. Possession of a specified synthetic cannabinoid or specific synthetic stimulant was simply defined as infractions. The bill was chaptered in this form, including delayed implementation until 2016. Thus, the provisions of SB 1283 have not gone into effect.

9. Proposition 36 of 2000, the Substance Abuse and Crime Prevention Act

SACPA requires any person convicted of non-violent possession of any substance included in the controlled substance schedules to be offered treatment on probation, with no jail sanctions.

Defendants convicted of possession of a specified synthetic cannabinoid or a specified synthetic stimulant will not be eligible for SACPA if this bill or SB 1283 becomes effective. The specified chemicals or drugs are not included in the controlled substance schedules, but are separately listed or described in the sections defining crimes for commerce in or possession of these chemicals.

10. Drug Treatment in the Court System

Recent research has considered the effectiveness of varying forms of court-based drug treatment with other forms or sources of treatment demand.¹⁶ UCLA studies of the effectiveness of SACPA – Proposition 36 of 2000 were released in 2003 and 2006.¹⁷ SACPA requires drug treatment without incarceration for non-violent drug possession. UCLA found that the SACPA model was as effective as drug court or voluntary treatment models and produced $2.50 in savings from every dollar spent. Improvements in funding allocations and programs would have produced better results.

State funding for SACPA ended in 2006. Individual counties must bear the costs of the program. The California Society of Addiction Medicine has more recently found that SACPA produced positive results, including for participants who did not complete the full program.

An extensive 2007 study of 474 drug offenders in drug court in Maricopa County Arizona (the Phoenix area) compared the outcomes in drug court treatment for persons who were subject to jail sanctions against those who were not subject to sanctions. The study found that the threat of jail sanctions did not affect the participant’s rate of retention in or completion of the program.

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SENATE COMMITTEE ON PUBLIC SAFETY

Senator Loni Hancock, Chair

2015 - 2016 Regular

Bill No: SB 139 Hearing Date: May 12, 2015

Subject: Controlled Substances

HISTORY

Source: California Narcotics Officers Association

Prior Legislation: SB 1283 (Galgiani) - Ch. 372, Stats. 2013

AB 486 (Hueso) - Ch. 656, Stats. 2011

SB 420 (Hernandez) - Ch. 420, Stats. 2011

AB 2420 (Hueso) - Died in Assembly Public Safety, 2012

AB 1141 (Anderson) - Ch. 292, Stats 2007

Support: Association for Los Angeles Deputy Sheriffs; Los Angeles Police Protective League; Riverside Sheriffs Association; California Association of Code Enforcement Officers; California College and University Police Chiefs Association; California Police Chiefs Associations; California State Sheriffs’ Association; California District Attorneys Association

Opposition: American Civil Liberties Union; Legal Services for Prisoners with Children

PURPOSE

The purpose of this bill is to 1) provide that possession of a specified synthetic cannabinoid or possession of a specified synthetic stimulant is a crime, with the following classes of offense and penalties: First offense is an infraction, punishable by a fine of up to $250; a second offense is an infraction or misdemeanor, with a misdemeanor fine of up to $500, a jail term of up to six months, or both; a third or subsequent offense is a misdemeanor, punishable by a fine of up to $1,000, a jail term of up to one year, or both; 2) to add myriad specified drugs or chemicals to the list of prohibited synthetic cannabinoids in existing law; and 3) add specified synthetic stimulants to the statutory list of prohibited drugs of that type.

Existing law lists controlled substances in five “schedules” - intended to reflect decreasing order of harm and increasing medical utility or safety - and provides penalties for possession of and commerce in controlled substances. (Health & Saf. Code §§ 11350-11401.)

Existing law lists cathinone as a Schedule II controlled substance stimulant and provides that simple possession of cathinone is a misdemeanor, punishable by a jail term of up to six month, a fine of up to $1,000, or both. (Health & Saf. Code §§ 11055, subd. (d)(8) and 11377, subd. (b)(3).)

Existing law provides that possession for sale of khat or cathinone is a felony punishable by 16 months, 2 years, or 3 years in state prison. (Health & Saf. Code § 11378.)

Existing law provides that transportation, sale, or furnishing of khat or cathinone is a felony punishable by 2, 3, or 4 years in state prison and a fine of up to $10,000. (Health & Saf. Code § 11379.)

Existing law provides that any person who possesses for sale, sells or furnishes any synthetic cannabinoid compound shall be punished by imprisonment in the county jail for up to six months, a fine of up to $1,000, or both. (Health & Saf. Code § 11357, subd. (a.)

Existing law provides that any person who sells, dispenses, distributes, or gives the stimulant substances naphthylpyrovalerone or cathinone, or specified variations of these drugs, or who offers to do such acts, is guilty of a misdemeanor, punishable by a jail term of up to six months, a fine of up to $1,000, or both. (Health & Saf. Code § 11375.5.)

Existing law provides that it is a misdemeanor to “use or be under the influence of” a specified controlled substance. (Health & Saf. Code § 11550.) Penalties and special provisions for being under the influence of a controlled substance are the following:

• First time conviction: Jail term of 90 days to one year. Probation may last up to five years. The court must include a 90-day jail term as a condition of probation;

• Third conviction within seven years of the prior convictions: If the defendant refuses to complete a licensed drug treatment program, the court must impose a term of at least 180 days in jail unless there are no reasonably available licensed programs;

• The court may allow a defendant convicted for a second time to complete a licensed drug treatment program in lieu of all or part of the mandatory jail term; and,

• Counties are encouraged to augment applications for federal and state drug treatment money to treat persons convicted of this offense. (Health & Saf. Code § 11550, subds. (a)-(c.)

Existing decisional law holds that within the context of Health and Safety Code Section 11550, “use” of a controlled substance means current use, or use immediately prior to arrest. (Bosco v. Justice Court (1978) 77 Cal.App.3d 179, 191; People v. Velasquez (1976) 54 Cal.App.3d 695.)

Existing Law – Proposition 36 (Nov. 2000 election), the Substance Abuse and Crime Prevention Act of 2000 (SACPA) – requires non-violent drug possession offenders to be offered drug treatment on probation, which shall not include incarceration as a condition of probation. (Pen. Code §§ 1210-1210.5.)

Existing law provides that non-violent drug possession offenses include:

• Unlawful use, possession for personal use, or transportation for personal use of a controlled substance;

• Being under the influence of a controlled substance; and, (Health and Saf. Code § 11550.); and, SACPA eligibility is not affected by the classification of the underlying; drug possession offense as a felony or misdemeanor. The controlling factor is that the drug is a controlled substance. (Pen. Code § 1210.)

Existing law provides that beginning on January 1, 2016, a person who “uses or possesses” a specified synthetic cannabinoid or specified synthetic stimulant is guilty of an infraction. (Health and Saf. Code § 11357.5.)

This bill provides that possession or use of a specified synthetic cannabinoid or synthetic stimulant is guilty of a crime, as follows:

• The first offense is an infraction, punishable by a fine of up to $250.

• The second offense is an infraction or misdemeanor. The infraction penalty is a fine of up to $250 and the misdemeanor is punishable by imprisonment in a county jail not to exceed six months, a fine of up to $500, or both.

• A third or subsequent offense is a misdemeanor, punishable by a jail term not to exceed six months, a fine of up to $1,000, or both.

This bill adds a voluminous or exhaustive list of specified classes of synthetic cannabinoids and individual chemicals to the definition of a synthetic cannabinoid that appears in current criminal statutes.

This bill adds a number of synthetic stimulants – essentially synthetic cathinones¹ - to the list of these prohibited substances in existing law.

This bill is an urgency measure.

RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

For the past eight years, this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.

On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:

• 143% of design bed capacity by June 30, 2014;

• 141.5% of design bed capacity by February 28, 2015; and,

• 137.5% of design bed capacity by February 28, 2016.

In February of this year the administration reported that as “of February 11, 2015, 112,993 inmates were housed in the State’s 34 adult institutions, which amounts to 136.6% of design bed capacity, and 8,828 inmates were housed in out-of-state facilities. This current population is now below the court-ordered reduction to 137.5% of design bed capacity.”( Defendants’ February 2015 Status Report In Response To February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).

While significant gains have been made in reducing the prison population, the state now must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:

• Whether a proposal erodes a measure which has contributed to reducing the prison population;

• Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;

• Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;

• Whether a proposal corrects a constitutional problem or legislative drafting error; and

• Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.

COMMENTS

1. Need for This Bill

According to the author:

The danger and prevalence of synthetic drugs has been well-documented in news media stories throughout the state and country. From the 16-year old in Indianapolis who passed away after his first time trying the drug (http://fox59.com/2015/02/03/new-synthetic-drug-bill-proposed-as-statewide-ban-is-thrown-out/), to the 18 year old in North Dakota who died on a street corner after trying the drug (http://www.cnn.com/2014/12/01/us/synthetic-drugs-investigation/), to right here in our own backyards where a 19 year old died after simply taking one hit of the drug (http://www.news10.net/story/news/local/roseville/2014/08/08/roseville-teen-dies-after-smoking-spice-connor-eckhardt/13782433/), we are undoubtedly watching the spread of a deadly and extremely dangerous new substance.

On February 4th of this year NBC 4 of Southern California ran a story detailing how synthetic drugs are now the second most used illicit drug by high school seniors; second only to marijuana (http://www.nbclosangeles.com/news/local/Designer-Drugs-Rise-Teens-Spice-Lean-Bath-Salts-291000251.html). The market for these drugs is fundamentally rooted in demand from our youth here in California. Just last year in my district, a drug bust netting over $20 million worth of synthetic drugs took place at warehouses in Stockton and Millbrae (http://sacramento.cbslocal.com/2014/05/07/stockton-warehouse-raided-as-part-of-nationwide-crackdown-on-spice-drug/). In Bakersfield, a drug bust uncovered over 1,000 pounds of these drugs and over $2.7 million in cash (http://www.huffingtonpost.com/2013/12/17/bath-salts-michael-kamar_n_4459846.html). Two Orange County men were also recently arrested for allegedly selling more than $12 million worth of substances used to create synthetic drugs (http://www.latimes.com/local/lanow/oc-men-charged-bath-salts-drug-ring--20140613-story.html). Finally, multiple synthetic drug busts in Texas have been accredited to being manufactured here in California, indicating the sophistication of these local operations. (http://www.news-journal.com/news/police/raid-hits-longview-stores-that-sell-synthetic-drug-owners-arrested/article_6ede7edf-9000-55c3-b8d6-cd5f4d41d342.html). (http://www.connectamarillo.com/news/story.aspx?id=1156375#.VNj1OsnlwfA).

Part of the reason that these drugs dealers are having so much success marketing the drug to teenagers and young adults is that they are able to market them as being legal. Up until my bill last year, simple possession of these drugs was actually perfectly legal under state law. This is despite their well-documented danger. Now it has come to my attention that, underground chemists skirt the law by slightly altering the chemical compounds of these drugs, to come up with new versions, which technically, are NOT illegal yet. Senate Bill 139 will close these loopholes in state law and allow law enforcement to be better equipped in getting these drugs away from our communities.

2. Background – Synthetic Cannabinoids

Synthetic cannabinoids come in two basic forms. CB1 cannabinoids bind to CB1 cannabinoid receptors in the brain. CB2 cannabinoid receptors bind to cells throughout the body that are largely involved in regulating the immune system, although their full properties of CB2 are not known. It appears that CB2 cannabinoids could be used to treat inflammation. (THC binds to CB1 and CB2 receptors.) C1 cannabinoids have psychoactive properties.² Typically statutes, news reports and academic works concern CB1 synthetic cannabinoids.

The European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) is a European Union agency that “exists to provide the EU … with a factual overview of European drug problems and a solid evidence base to support the drugs debate.”

The EMCDDA Website includes the Following Information about Synthetic Cannabinoids:

Synthetic cannabinoids …. bind to the same cannabinoid receptors in the brain [as THC] … More correctly designated as cannabinoid receptor agonists, they were developed over the past 40 years as therapeutic agents. …However, it proved difficult to separate the desired properties from unwanted psychoactive effects. Although often referred to simply as synthetic cannabinoids [or synthetic marijuana], many of the substances are not structurally related to the so-called “classical” cannabinoids like THC…

…[L]ittle is known about the detailed pharmacology and toxicology of the synthetic cannabinoids and few formal human studies have been published. It is possible that, apart from high potency, some cannabinoids could have… long half-lives…leading to a prolonged psychoactive effect. … [T]here could [also] be considerable … batch variability… in terms of substances present and …quantity.

Recent EMCDD Data on Synthetic Cannabinoids Include:

• A synthetic cannabinoid, JWH-018, was first detected in “Spice” products in 2008.

• 81 new psychoactive substances were reported to EMCDDA in 2013, 29 were synthetic cannabinoids.

• 105 synthetic cannabinoids in total [were] monitored by EU Early Warning System [in January of 2014].

• 14 recognizable chemical families of synthetic cannabinoids are known.

The EMCDD reports that most synthetic cannabinoids are manufactured in China and shipped though legitimate distribution networks.³ The White House Office of National Drug Control Policy⁴ states that most synthetic cannabinoids originate overseas, but that they are also being made on a small scale in the United States.

The EMCDD reported⁵ on adverse consequences of synthetic cannabinoid use:

The adverse health effects associated with synthetic cannabinoids are linked to both the intrinsic nature of the substances and to the way the products are produced. There have been numerous reports of non-fatal intoxications and a small number of deaths associated with their use. As noted above, some of these compounds are very potent; therefore the potential for toxic effects is high. Harm may result from uneven distribution of the substances within the herbal material, result[ing] in products containing doses that are higher than intended.

The reported adverse effects of synthetic cannabinoid products include agitation, seizures, hypertension, emesis (vomiting) and hypokalemia (low potassium levels). …There is some evidence…that synthetic cannabinoids can be associated with psychiatric symptoms, including psychosis. There are also investigations underway in the US regarding links between the use of synthetic cannabinoids… and acute kidney injury and recently, a case report associated the use of the cannabinoid JWH-018 with…strokes in two otherwise healthy males.

3. This Bill is Drawn From a Model Statute and Lists 14 Classes or Families of Synthetic Cannabinoids and Myriad Individual Chemicals

As noted above, there are 14 currently known “families” or classes of chemicals. The bill appears to include them all. The EMCDD noted that 105 individual chemicals in these classes were being monitored in Europe in 2014. This bill appears to include hundreds of individual chemicals in the list of prohibited synthetic cannabinoids. Many of the chemicals are identified through a letter and number combination, such as JWH-018, AM-087 and HU-210. The letters are generally the initials of the researcher who first synthesized the chemical or the institution where the research was done.

The background provided by the author and sponsor includes model statutes for prohibiting synthetic cannabinoids and synthetic stimulants. The model statute was drafted by the National Alliance for Model State Drug Laws.⁶ The list of chemicals in the bill appears to be copied from the model statute. The purpose of describing synthetic cannabinoids by class or family is to include any new chemical in each class as a prohibited substance. That is, if a new drug is developed in any of the 14 classes, the chemical is prohibited, regardless of whether the individual chemical is included in the statute. It is not known whether many new synthetic cannabinoid classes can or will be developed. Synthesis of a new class or family of cannabinoids would not be included in the list of prohibited chemicals.

4. Emergency Room Visits Related to Synthetic Cannabinoids

From 2010 through 2011 reported emergency room (ER) visits linked to synthetic cannabinoids increased from 11,406 to 28,531. The vast majority of patients were young males, ages 12 through 20.⁷ This is a relatively small number of ER visits, as total drug-related ER visits numbered 2,460,000 in 2011. Of the 2,300,000 ER visits in 2010, approximately 460,000 concerned marijuana and approximately 11,000 concerned synthetic cannabinoids. However, the reported number of synthetic cannabinoid ER visits likely understates actual visits, as testing availability is limited and some medical personnel might not be familiar with the drugs. The ER studies reported that very few patients engaged in follow-up treatment. It is not clear whether ER doctors did not make referrals for additional care, or if patients chose not to seek it.

Very recently, ER visits for synthetic cannabinoids have spiked. As use of these drugs appears to be dropping, the surge in ER visits is likely the result of a dangerous change in chemical composition of the drugs. One who obtains a synthetic cannabinoid can only guess as to its composition and effects.⁸

The New York Times explained in an April 24, 2015 article: “[Synthetic cannabinoids …typically imported from China by American distributors, come in hundreds of varieties; new formulations appear monthly, with molecules subtly tweaked to try to skirt the DEA's list of illegal drugs as well as drug-detecting urine tests. … [E]each new variety can present distinct health risks caused by its underlying chemistry or contaminants in renegade manufacturing facilities.”

5. United Nations Report on Synthetic Cannabinoids Addresses the Issue of Dependence or Addiction

A United Nations report in 2011 considered the addictive potential of synthetic cannabinoids. The report found:

Some reports suggest that a number of these substances may have a higher addictive potential compared to cannabis due to quicker development of tolerance [26, 53]. 11 In a case report published by Zimmermann et al. in 2009 [53], withdrawal phenomena and a dependence syndrome occurred after repeated consumption of relatively high doses of ‘Spice gold’, i.e. 3 g per day. From experiments carried out with autaptic hippocampal neurons, it was shown that JWH‐018 could potently induce rapid and robust CB1 receptor internalization, highlighting the potential of developing tolerance and dependence on this substance [26].  

It appears that users who consume the same synthetic cannabinoid substance could become dependent or habituated relatively quickly. However, the chemical composition of synthetic cannabinoids changes rapidly, often with a different affinity for cannabinoid receptors and a different effect on the user. It is not clear if there is a general dependence or addictive quality among synthetic cannabinoids, such that use of one chemical or substance would contribute to dependence on another, or other, synthetic cannabinoids. Multiple synthetic cannabinoids that bind to the same cannabinoid receptors would perhaps be likely to produce dependence when consumed separately. One controlled study found evidence that synthetic cannabinoids in the JWH class produced dependence symptoms in mice. The study cautioned that the results might not apply to all chemicals of that class and that some cannabinoid binding chemicals did not appear to produce symptoms of dependence.⁹

6. Synthetic Cannabinoid and Synthetic Stimulant Use is Falling Rapidly Among Young People

The University of Michigan Monitoring the Future survey first asked 8^th and 10th graders about their use of synthetic [cannabinoids] in 2011. The survey found that in 2012 annual prevalence rates were 4.4% and 8.8%, respectively. Use in all grades dropped in 2013, and the decline was sharp and significant among 12th graders The declines continued into 2014 and were significant for both 10th and 12th graders; use for all grades declined 40% in 2014 from peak use in 2011 Awareness of the dangers of synthetic cannabinoid was up sharply among 12 graders.¹⁰

The use of synthetic stimulants among 8, 10^th and 12 graders was first reported in the survey in 2012, with approximately 1% of students having tried the drug. Use of synthetic stimulants has also declined significantly – down approximately 20% from 2012 to 2014.¹¹

The decline in the use of synthetic cannabinoids and synthetic stimulants was preceded by a precipitous drop in the use of the psychedelic salvia divinorum – another drug that gained popularity and some infamy around 2008. Since peak use (of 3.6%) by students in 2011 and 2012, use of salvia declined 61%. Sale or distribution of salvia was made a misdemeanor in 2008, but no penalties exist for possession or use.¹² The decline in use appears to result from negative experiences by users, such as a frightening sensation of falling through space, not criminal penalties.¹³

7. Background on Synthetic Stimulants Covered by This Bill

It appears that the synthetic stimulant chemicals included in this bill are closely related to cathinone, the psychoactive chemical in the khat plant, which is commonly used in the Middle East. Khat and Cathinone are included in Schedule II stimulants. (Health and Saf. Code § 11055, subd. (d)(7)-(8).) Without this bill, it appears that possession of one of the specified synthetic chemicals would be a crime through the analog statute. The analog statute provides that any drug that has a chemical structure or properties that are similar to a scheduled drug can be the subject of prosecution as though the drug were included in the schedules.

The United Kingdom Advisory Council on the Misuse of Drugs (ACMD) is an agency of the UK Home Office that advises policy makers on drug issues. In the past few years, the ACMD has reported on the synthetic stimulants covered by this bill.¹⁴

Synthetic cathinones are related to the parent compound cathinone, one of the psychoactive principals in khat… Cathinone derivatives are …. analogues of a corresponding phenethylamine. The group includes several substances that have been used as active pharmaceutical ingredients … Since the mid-2000s, unregulated ring-substituted cathinone derivatives have appeared in the European recreational drugs market. The most commonly available cathinones sold on the recreational market in the period up to 2010 appear to be mephedrone (Figure 3) and methylone. [The drugs]… are claimed to have effects similar to those of cocaine, amphetamine or MDMA, but little is known of their detailed pharmacology. Apart from cathinone [and other specified chemicals]. cathinone derivatives are not under international control.

…Like cocaine, the resulting ‘high’ of mephedrone is short-lived. Consequently, users may consume several doses in succession. …[Specified chemical alterations] could [create] more potent [drugs]. It should be noted that…PMA and PMMA are known to have a particularly high toxicity, and this property might translate to their analogues.

As noted above, cathinone is the main psychoactive chemical in the khat plan. Use of khat in the United States has grown in recent decades. The New York State Office of Alcohol and Substance Abuse Services produces research and educational material about drugs. The office has published the following discussion of khat:¹⁵

Khat has been grown for use as a stimulant for centuries in the Horn of Africa and the Arabian Peninsula. There, chewing khat predates the use of coffee and is used in a similar social context. Its fresh leaves and tops are chewed or…consumed as tea, [producing] euphoria and stimulation. The stimulant effect is most effective when the leaves are still fresh.

Khat use has traditionally been confined to the regions where khat is grown, because only the fresh leaves have the desired… effects. In recent years improved [transportation] has increased the global distribution.

…In 1975, the [chemical] cathinone was isolated [from khat]. Cathinone is not very stable and breaks down to produce cathine and norephedrine. These chemicals belong to the PPA (phenylpropanolamine) family, a subset of the phenethylamines related to amphetamines and the catecholamines, epinephrine and norepinephrine.

8. Previous Similar Bill – SB 1283 (Galgiani) Ch. 372, Statutes of 2014

In 2014, the committee heard another bill - SB 1283 - concerning synthetic cannabinoids and synthetic cathinone drugs. SB 1283 becomes effective in 2016. SB 1283 was amended in this committee to reflect the same basic penalty structure as in this bill. That is, a first offense is an infraction, punishable by a fine of up to $250. A second offense is an infraction or a misdemeanor. A third or subsequent offense is a misdemeanor. However, the bill included novel provisions concerning the education and treatment of defendants found to be in possession of a listed synthetic drug. The amendments (stripped from the bill in the Assembly) provided that a defendant could elect to participate in an education program. If the defendant successfully completed the education program, the fine that he or she paid would be returned. The bill included community services provisions and made defendants eligible for the Substance Abuse and Crime Prevention Act (SACPA) - Proposition 36 of 2000.

SB 1283 requested the UCLA Luskin School of Public Affairs to design the education program or designate another entity to do so. The Luskin School houses a respected concentration in Crime and Drug Control Policy. The bill further directed the Judicial Council to approve and help implement the education program. In Senate Appropriations, the bill was narrowed and implementation delayed until 2016. In the Assembly, the misdemeanor provisions and the education program were stricken from the bill. Possession of a specified synthetic cannabinoid or specific synthetic stimulant was simply defined as infractions. The bill was chaptered in this form, including delayed implementation until 2016. Thus, the provisions of SB 1283 have not gone into effect.

9. Proposition 36 of 2000, the Substance Abuse and Crime Prevention Act

SACPA requires any person convicted of non-violent possession of any substance included in the controlled substance schedules to be offered treatment on probation, with no jail sanctions.

Defendants convicted of possession of a specified synthetic cannabinoid or a specified synthetic stimulant will not be eligible for SACPA if this bill or SB 1283 becomes effective. The specified chemicals or drugs are not included in the controlled substance schedules, but are separately listed or described in the sections defining crimes for commerce in or possession of these chemicals.

10. Drug Treatment in the Court System

Recent research has considered the effectiveness of varying forms of court-based drug treatment with other forms or sources of treatment demand.¹⁶ UCLA studies of the effectiveness of SACPA – Proposition 36 of 2000 were released in 2003 and 2006.¹⁷ SACPA requires drug treatment without incarceration for non-violent drug possession. UCLA found that the SACPA model was as effective as drug court or voluntary treatment models and produced $2.50 in savings from every dollar spent. Improvements in funding allocations and programs would have produced better results.

State funding for SACPA ended in 2006. Individual counties must bear the costs of the program. The California Society of Addiction Medicine has more recently found that SACPA produced positive results, including for participants who did not complete the full program.

An extensive 2007 study of 474 drug offenders in drug court in Maricopa County Arizona (the Phoenix area) compared the outcomes in drug court treatment for persons who were subject to jail sanctions against those who were not subject to sanctions. The study found that the threat of jail sanctions did not affect the participant’s rate of retention in or completion of the program.

11. Drug Treatment Issues Raised by this Bill – Proposals of the Sponsor

Representatives of the sponsor of this bill - the California Narcotics Association - have argued that that treatment for users of the drugs included in this bill is essential. Representatives have suggested or considered implementation of a pre-guilty plea treatment program. Under such a program, a person arrested for misdemeanor possession of a specified synthetic drug or chemical would be offered treatment for a specified amount of time, with no necessity of a guilty plea. If the person completed the program, the arrest would be deemed to have never occurred. Those who fail in the treatment program would face prosecution.

It has been widely emphasized by experts in drug abuse and treatment that drug dependence or addiction is a chronically relapsing condition, similar to obesity or diabetes in this respect.¹⁸ It is to be expected that a person in treatment for drug dependence will relapse and use the drug of dependence or another drug. Such relapses do not mean that the person is not benefiting from treatment. It appears that treatment is cumulative, such that what appear to be initial failures in treatment contribute to success or substantial progress over time. If a pre-plea treatment is implemented by this bill, it is suggested that the governing statute or statutes include a legislative finding that drug dependence is a chronically relapsing condition and that positive tests for use of a drug shall not be grounds for dismissal from the program if there are other signs of progress or positive changes from the program. For example, a history of less frequent relapses with success or progress by the treatment participant in employment, training, education or family responsibilities and relations would indicate that treatment is beneficial.

Procedurally, it appears that defendants arrested for being in possession of a synthetic cannabinoid or a specified synthetic stimulant could be deemed eligible for participation in a pre-plea diversion program, as described in Penal Code Section 1000.5. Such a provision would face two problems: 1) Existing Penal Code Section 1000.5 excludes from participation any person who has a prior drug conviction, any person who did not completed a previous deferred entry of judgment (DEJ) or diversion program, any person who had his or her probation or parole revoked, and person has a prior felony conviction within the previous five years, or any person whose crime involved violence or a threat of violence. 2) Pre-plea diversion is only available in a county where the presiding judge, the district attorney and the public defender all agree to implementation of the program. Most counties only use a DEJ program, as described in Penal Code Section 1000. In DEJ, the defendant must plead guilty. Judgment is then deferred while the defendant participates in a treatment, education and rehabilitation program. If the defendant successfully completes the program, the conviction and arrested are stricken. Otherwise, judgment is entered and sentence imposed.

The exclusions in existing DEJ and diversion statutes would cover a wide range of persons who have participated in a prior drug treatment programs through a court or on supervision. As noted above, it should be expected that persons in treatment will relapse and use a prohibited drug. It is perhaps likely that those who successfully complete a DEJ or diversion program under existing law are not truly drug-dependent.

To address concerns that existing standards for DEJ or diversion would exclude very many people who would benefit from treatment, the bill could provide that a person arrested for possession of a synthetic cannabinoid or synthetic stimulant is not eligible for the program if any of the following circumstances apply: The underlying crime involved violence or the threat of violence. The person’s supervision status in a probation, parole, mandatory supervision or post-release community supervision has been revoked for a violation that is not directly related to the use of a prohibited drug or controlled substance. The person has been convicted of a felony that did not solely involve possession or use of a controlled substance or prohibited drug in the past five years. The defendant has been convicted of a crime for which sex offender registration is required, or the defendant has a history of violence. The court finds by clear and convincing evidence that the person is unamenable to any and all forms of drug treatment.¹⁹

The bill could provide that pre-plea diversion for persons covered by this bill shall be provided, regardless of whether the county has a current pre-plea diversion program. It appears that the treatment, education and rehabilitation programs for persons placed in either DEJ or diversion programs would be the same. A person who does fail in the diversion program would face prosecution. As noted above, he or she would not be eligible for SACPA/Proposition 36, as the drugs covered by this bill are not included in the controlled substance schedules.

The bill could provide that if the participant’s continued drug use – as shown by multiple positive drug tests - creates a current and ongoing likelihood of material harm to the participant or others, the participant can be dismissed from the program or found not to have successfully completed the program.

Committee members may wish to consider the proposal of the sponsor to create a pre-plea diversion program for persons who arrested pursuant to this bill. The discussion above could guide drafting of the program.

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