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

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

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

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

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

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

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

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

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

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

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

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

(1)Existing law, as amended by the Safe Neighborhoods and Schools Act, a measure approved by the voters at the November 4, 2014, statewide general election, law generally provides that the possession of Ketamine, gamma hydroxybutyric acid (GHB), and flunitrazepam is a misdemeanor, punishable by imprisonment in the county jail for not more than one year. Existing law also provides that when a person has one or more prior convictions for certain enumerated crimes, his or her possession of GHB is a felony, punishable by imprisonment in a county jail for 16 months, or 2 or 3 years, and his or her possession of Ketamine and flunitrazepam is either a misdemeanor, punishable by imprisonment in the county jail for not more than one year, or a felony, punishable by imprisonment in a county jail for 16 months, or 2 or 3 years.

(1)Existing law, as amended by the Safe Neighborhoods and Schools Act, a measure approved by the voters at the November 4, 2014, statewide general election, generally provides that the possession of Ketamine, gamma hydroxybutyric acid (GHB), and flunitrazepam is a misdemeanor, punishable by imprisonment in the county jail for not more than one year. Existing law also provides that when a person has one or more prior convictions for certain enumerated crimes, his or her possession of GHB is a felony, punishable by imprisonment in a county jail for 16 months, or 2 or 3 years, and his or her possession of Ketamine and flunitrazepam is either a misdemeanor, punishable by imprisonment in the county jail for not more than one year, or a felony, punishable by imprisonment in a county jail for 16 months, or 2 or 3 years.

This bill would instead provide, without regard for a persons prior convictions, that possession of Ketamine and flunitrazepam is either a misdemeanor, punishable by imprisonment in a county jail for not more than one year, or a felony, punishable by imprisonment in a county jail for 16 months, or 2 or 3 years. The bill would also provide that the possession of GHB by a person who does not have a prior conviction for those certain enumerated crimes is either a misdemeanor, punishable by imprisonment in a county jail for not more than one year, or a felony, punishable in a county jail for 16 months, or 2 or 3 years. This bill would make other technical, clarifying changes.

(2)Proposition 47 provides that its provisions may be amended by a statute that is consistent with and furthers its intent and that is passed by a ²/₃ vote of each house of the Legislature and is signed by the Governor. Proposition 47 also provides that the Legislature may, by majority vote, amend, add, or repeal provisions to further reduce the penalties for offenses it addresses.

The California Constitution authorizes the Legislature to amend or repeal an initiative statute by another statute that becomes effective when approved by the electors.

This bill would provide that its provisions become effective only upon approval of the voters at the next statewide election, and would provide for the submission of this measure to the voters for approval at that election.

 VETO  

Bill No: SB 333

Author: Galgiani (D), et al.

Amended: 8/31/15

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/28/15

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

SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/28/15

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

SENATE FLOOR: 40-0, 6/3/15

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

SENATE FLOOR: 39-0, 9/3/15

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

NO VOTE RECORDED: Hueso

ASSEMBLY FLOOR: 78-0, 9/2/15 - See last page for vote

SUBJECT: Controlled substances

SOURCE: Author

DIGEST: This bill provides that possession of gamma-Hydroxybutyric acid (GHB), flunitrazepam (Rohypnol), or ketamine with the intent to commit a sex crime, as defined, is a felony, punishable pursuant to Penal Code Section 1170, subdivision (h), for a felony term of 16 months, two years or three years.

ANALYSIS:

Existing law:

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

2. Classifies controlled substances in five schedules according to their danger and potential for abuse. Schedule I controlled substances have the greatest restrictions and penalties, including prohibiting the prescribing of a Schedule I controlled substance. (Health & Saf. Code §§ 11054 to 11058.)

3. States, except as provided, that every person who possesses for sale or purchases for purposes of sale any of the specified controlled substances, including cocaine and heroin, is guilty of a felony, punishable pursuant to Penal Code Section 1170, subdivision (h), by imprisonment for two, three, or four years. (Health & Saf. Code § 11351.)

4. Provides that every person who transports, imports, sells, furnishes, administers, or gives away, or who offers or attempts to do any such act, without a valid prescription is guilty of a felony, punishable pursuant to Penal Code Section 1170, subdivision (h), by imprisonment for three, four, or five years. (Health & Saf. Code, § 11352, subd. (a).)

5. States that the possession for sale of methamphetamine, and other specified controlled substances is punishable Pursuant to Penal Code Section 1170, subdivision (h), by imprisonment for 16 months, two or three years. (Health & Saf. Code § 11378.)

6. Provides that every person that transports, imports into the state, sells, furnishes, administers, or gives away, or offers to transport, import into the state, sell, furnish, or give away, or attempts to import into this state or transport methamphetamine, or other specified controlled substances listed in the controlled substance schedule, without a written prescription from a licensed physician, dentist, podiatrist, or veterinarian shall be punished pursuant to Penal Code Section 1170, subdivision (h), by imprisonment for two, three, or four years. (Health & Saf. Code § 11379, subd. (a).)

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

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

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

This bill:

1. Provides that a person who possesses GHB, ketamine or flunitrazepam, also known by the trade name Rohypnol, with the intent to commit sexual assault, as defined, is guilty of a felony, punishable by imprisonment pursuant to Penal Code Section 1170, subdivision (h), for 16 months, or two or three years in a county jail, or served in prison if the defendant has a prior or current conviction for a serious or violent felony, or is required to register as a sex offender.

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

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

Background

The crime defined by this bill – possession of a specified drug with intent to commit a sex crime – is similar to an attempt to commit a sex crime, but with an important distinction. An attempt is the intent to commit a crime and an affirmative, yet unsuccessful, step towards committing the crime. “Mere preparation” is not an affirmative step. (People v. Breverman (1998) 19 Cal.4th 142, 154; CALCRIM 406.) This bill allows conviction of defendants who did not go beyond preparation. For example, the defendant told his companions at a bar that he wanted to drug a woman and have sex with her. He puts a drug in her drink, but her friends intervene when the defendant tries to get the woman to leave the bar with him. This could be described as preparation to commit a sex crime, not a direct step towards commission of the crime, and thus not an attempt. This bill defines such conduct as a crime.

Defendants with prior sex offenses are excluded from the misdemeanor drug possession provisions in Proposition 47. However, if an excluded defendant’s possession of a drug had a sexual motivation or connection, a simple possession conviction would not reflect that. Even if the prior was a sex offense, there would be nothing about the current conviction indicating a sexual motivation or connection. In contrast, in a prosecution for possession with intent to commit a sex crime under this bill, the defendant’s prior convictions and misconduct could be used as evidence of his intent in the current case.

Ketamine is an anesthetic-dissociative drug. It appears to be the drug of choice in pediatric surgery and pediatric emergency pain management, as it blocks pain without full unconsciousness and depressed respiration. Ketamine is widely used in Africa and other countries with low per-capita income levels, as it is effective, cheap, and safe. Greater restrictions on ketamine have caused alarm in Africa among public health experts. Ketamine has also recently been used as an “off label” drug for the treatment of depressions. Patients lose depressive symptoms quickly and the effect lasts for months. Clinical trials for use of ketamine as a depression treatment have been remarkably positive. Ketamine is also used for intoxication or mind-altering experiences. Users seek the dissociative experience that would be considered an unwanted or problematic side effect in medial use. (http://www.ncbi.nlm.nih.gov/pubmed/18645539; http://emupdates.com/wp-content/uploads/2011/01/ACEP-Ketamine-Guideline-2011.pdf; http://www.theguardian.com/world/2015/feb/27/raver-drug-ketamine-control-plan-at-un-condemned-as-potential-disaster; http://www.nytimes.com/2014/12/10/business/special-k-a-hallucinogen-raises-hopes-and-concerns-as-a-treatment-for-depression.html?_r=0; http://www.nimh.nih.gov/about/director/2014/ketamine.shtml; http://www.nimh.nih.gov/health/trials/depression.shtml.)

GHB is prescribed to narcoleptics to allow them to sleep deeply at night. It is often used as a so-called “club drug.” It has been described as being similar to alcohol intoxication, but with more euphoric effect and without a hangover. GHB is dangerous when mixed with alcohol, as both are central nervous system depressants. (“The silent G,” Contemporary Drug Problems, 2012; https://www.erowid.org/experiences/subs/exp_GHB.shtml#General.)

Flunitrazepam is a benzodiazepine, the class of sedative-hypnotic drugs that includes Xanax, Valium, and many others. It was developed in 1965. It has been described as being 10 times more potent than Valium, but is typically prescribed in doses that are 1/10th that of a common Valium dose. It is not available legally in the United States, but it is generally available in the rest of the world. It is the most widely prescribed drug of its class in Europe. It has been successfully used to treat alcoholics suffering from delirium tremens. Flunitrazepam is very widely used by heroin addicts to boost the effects of the drug without risking overdose and to ease withdrawal. (http://www.cesar.umd.edu/cesar/drugs/rohypnol.asp; http://www.ncbi.nlm.nih.gov/pubmed/810233; http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3454351/.)

The limited studies on drug facilitated sexual assault have found that although a person may be surreptitiously drugged with Rohypnol, GHB, or ketamine, it is much more common for a person to consume these drugs voluntarily for their intoxicating effects. Two major studies were funded by the United States Department of Justice. One of these studies considered data collected from college students. The other examined data collected from women reporting sexual assaults in cities in a number of states across the country. The college study indicated that 7.8% of women were sexually assaulted when they were incapacitated after voluntarily consuming drugs and/or alcohol and 0.6% were assaulted when they were given a drug surreptitiously. The great majority of incapacitated victims reported consuming alcohol (89%) or being voluntarily intoxicated prior to the assault (82%). The multiple city study concluded that most of the subjects testing positive for these ketamine, GHB and flunitrazepam had taken them voluntarily. (Krebs, et al., The Campus Sexual Assault Study, National Institute of Justice (Oct. 2007); Negruz, et al., Estimate of the Incidence of Drug-Facilitated Sexual Assault in the U.S, Univ. of Illinois, Chicago (Nov. 2005).)

This bill targets persons who possess these drugs for predatory purposes, rather than those who merely possess these drugs for personal use.

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

According to the Senate Appropriations Committee, potentially moderate state costs (General Fund) for incarceration in prison of any defendant who is not eligible for a county jail sentence under Penal Code Section 1170 (h) because the defendant has been convicted of a serious or violent felony, or must register as a sex offender.

SUPPORT: (Verified 10/27/15)

California Insurance Commissioner Dave Jones

Association for Los Angeles Deputy Sheriffs

California College and University Police Chiefs Association

California Correctional Supervisors Organization

California Narcotic Officers Association

Crime Victims United of California

Los Angeles Police Protective League

Peace Officers Research Association of California

Riverside Sheriffs’ Association

San Bernardino County Sheriff

OPPOSITION: (Verified 10/27/15)

Legal Services for Prisoners with Children

GOVERNOR'S VETO MESSAGE:

I am returning the following nine bills without my signature:

Assembly Bill 144

Assembly Bill 849

Senate Bill 168

Senate Bill 170

Senate Bill 271

Senate Bill 333

Senate Bill 347

Senate Bill 716

Senate Bill 722

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

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

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

ASSEMBLY FLOOR: 78-0, 9/2/15

AYES: Achadjian, Alejo, Travis Allen, 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, Melendez, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood

NO VOTE RECORDED: Mullin, Atkins

Prepared by: Jerome McGuire / PUB. S. /

11/4/15 13:34:19

**** END ****

SENATE THIRD READING

STR Bill Id:SB 333

Author:(Galgiani)

As Amended Ver:August 31, 2015

Majority vote

SENATE VOTE: 40-0

SUMMARY: Specifies that any person who possesses Ketamine, gamma hydroxybutyric acid (GHB) or Rohypnol with the intent to commit sexual assault, as defined, is guilty of a felony punishable by imprisonment in the county jail for 16 months, or two or three years. Specifically, this bill:

1. Defines "sexual assault" for the purposes of this bill to mean conduct in violation of specified provisions of law penalizing sexual battery, rape, spousal rape, sodomy, or oral copulation.

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

EXISTING LAW:

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

2. Classifies controlled substances in five schedules according to their danger and potential for abuse. Schedule I controlled substances have the greatest restrictions and penalties, including prohibiting the prescribing of a Schedule I controlled substance.

3. States, except as provided, that every person who possesses for sale or purchases for purposes of sale any of the specified controlled substances, including cocaine and heroin, shall be punished by imprisonment in a county jail for two, three, or four years.

4. Provides that every person that transports, imports into the state, sells, furnishes, administers, or gives away, or offers to transport, import into the state, sell, furnish, or give away, or attempts to import into this state or transport cocaine, cocaine base, or heroin, or other specified controlled substances listed in the controlled substance schedule, without a written prescription from a licensed physician, dentist, podiatrist, or veterinarian shall be punished by imprisonment for three, four, or five years.

5. States that the possession for sale of methamphetamine, and other specified controlled substances is punishable by imprisonment in a county jail for 16 months, two or three years.

6. Provides that every person that transports, imports into the state, sells, furnishes, administers, or gives away, or offers to transport, import into the state, sell, furnish, or give away, or attempts to import into this state or transport methamphetamine, or other specified controlled substances listed in the controlled substance schedule, without a written prescription from a licensed physician, dentist, podiatrist, or veterinarian shall be punished by imprisonment for two, three, or four years.

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

8. States that rape is an act of sexual intercourse accomplished where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known, by the accused.

9. Specifies felony penalties for any person who commits an act of sodomy, oral copulation or sexual penetration where the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known, by the accused.

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

COMMENTS: According to the author, "During my time in the State Legislature, this body has been dedicated to spreading awareness and preventing sexual assault. When a ballot measure such as Proposition 47 [2014] is placed in front of voters, the potential for unintended consequences arise. I firmly believe that voters in California did not intend to weaken sexual assault statutes by passing Prop 47. The malicious intent behind possessing and using 'date rape' drugs on another individual is a heinous act deserving of a serious consequence."

Analysis Prepared by: Stella Choe / PUB. S. / (916) 319-3744 FN: 0001685

 UNFINISHED BUSINESS  

Bill No: SB 333

Author: Galgiani (D), et al.

Amended: 8/31/15

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/28/15

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

SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/28/15

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

SENATE FLOOR: 40-0, 6/3/15

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: 78-0, 9/2/15 - See last page for vote

SUBJECT: Controlled substances

SOURCE: Author

DIGEST: bill provides that possession of gamma-Hydroxybutyric acid (GHB), flunitrazepam (Rohypnol), or ketamine with the intent to commit a sex crime, as defined, is a felony, punishable pursuant to Penal Code Section 1170, subdivision (h), for a felony term of 16 months, two years or three years.

Assembly Amendments provide that an executed felony sentence for possession of GHB, flunitrazepam or ketamine shall be served pursuant to Penal Code Section 1170, subdivision (h), in a county jail unless the defendant has a prior or current conviction for a serious or violent felony, as specified, or is required to register as a sex offender.

ANALYSIS:

Existing law:

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

2. Classifies controlled substances in five schedules according to their danger and potential for abuse. Schedule I controlled substances have the greatest restrictions and penalties, including prohibiting the prescribing of a Schedule I controlled substance. (Health & Saf. Code §§ 11054 to 11058.)

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

4. Provides that every person who transports, imports into the state, sells, furnishes, administers, or gives away, or offers to transport, import into the state, sell, furnish, or give away, or attempts to import into this state or transport cocaine, cocaine base, or heroin, or other specified controlled substances listed in the controlled substance schedule, without a written prescription from a licensed physician, dentist, podiatrist, or veterinarian shall be punished by imprisonment for three, four, or five years. (Health & Saf. Code, § 11352, subd. (a).)

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

6. Provides that every person that transports, imports into the state, sells, furnishes, administers, or gives away, or offers to transport, import into the state, sell, furnish, or give away, or attempts to import into this state or transport methamphetamine, or other specified controlled substances listed in the controlled substance schedule, without a written prescription from a licensed physician, dentist, podiatrist, or veterinarian shall be punished by imprisonment for two, three, or four years. (Health & Saf. Code § 11379, subd. (a).)

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

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

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

This bill:

1. Provides that a person who possesses GHB, ketamine or flunitrazepam, also known by the trade name Rohypnol, with the intent to commit sexual assault, as defined, is guilty of a felony, punishable by imprisonment pursuant to Penal Code Section 1170, subdivision (h), for 16 months, or two or three years in a county jail, or served in prison if the defendant has a prior or current conviction for a serious or violent felony, or is required to register as a sex offender.

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

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

Background

The crime defined by this bill – possession of a specified drug with intent to commit a sex crime – is similar to an attempt to commit a sex crime, but with an important distinction. An attempt is the intent to commit a crime and an affirmative, yet unsuccessful, step towards committing the crime. “Mere preparation” is not an affirmative step. (People v. Breverman (1998) 19 Cal.4th 142, 154; CALCRIM 406.) This bill allows conviction of defendants who did not go beyond preparation. For example, the defendant told his companions at a bar that he wanted to drug a woman and have sex with her. He puts a drug in her drink, but her friends intervene when the defendant tries to get the woman to leave the bar with him. This could be described as preparation to commit a sex crime, not a direct step towards commission of the crime, and thus not an attempt. This conduct would constitute guilt of possession of a drug with intent to commit a sex crime.

Defendants with prior sex offenses are excluded from the misdemeanor drug possession provisions in Proposition 47. However, if an excluded defendant’s possession of a drug had a sexual motivation or connection, a simple possession conviction would not reflect that. Even if the prior was a sex offense, there would be nothing about the current conviction indicating a sexual motivation or connection. In contrast, in a prosecution for possession with intent to commit a sex crime under this bill, the defendant’s prior convictions and misconduct could be used as evidence of his intent in the current case.

Ketamine is an anesthetic-dissociative drug. It appears to be the drug of choice in pediatric surgery and pediatric emergency pain management, as it blocks pain without full unconsciousness and depressed respiration. Ketamine is widely used in Africa and other countries with low per-capita income levels, as it is effective, cheap, and safe. Greater restrictions on ketamine have caused alarm in Africa among public health experts. Ketamine has also recently been used as an “off label” drug for the treatment of depressions. Patients lose depressive symptoms quickly and the effect lasts for months. Clinical trials for use of ketamine as a depression treatment have been remarkably positive. Ketamine is also used for intoxication or mind-altering experiences. Users seek the dissociative experience that would be considered an unwanted or problematic side effect in medial use. (http://www.ncbi.nlm.nih.gov/pubmed/18645539; http://emupdates.com/wp-content/uploads/2011/01/ACEP-Ketamine-Guideline-2011.pdf; http://www.theguardian.com/world/2015/feb/27/raver-drug-ketamine-control-plan-at-un-condemned-as-potential-disaster; http://www.nytimes.com/2014/12/10/business/special-k-a-hallucinogen-raises-hopes-and-concerns-as-a-treatment-for-depression.html?_r=0; http://www.nimh.nih.gov/about/director/2014/ketamine.shtml; http://www.nimh.nih.gov/health/trials/depression.shtml.)

GHB is prescribed to narcoleptics to allow them to sleep deeply at night. It is often used as a so-called “club drug.” It has been described as being similar to alcohol intoxication, but with more euphoric effect and without a hangover. GHB is dangerous when mixed with alcohol, as both are central nervous system depressants. (“The silent G,” Contemporary Drug Problems, 2012; https://www.erowid.org/experiences/subs/exp_GHB.shtml#General.)

Flunitrazepam is a benzodiazepine, the class of sedative-hypnotic drugs that includes Xanax, Valium, and many others. It was developed in 1965. It has been described as being 10 times more potent than Valium, but is typically prescribed in doses that are 1/10th that of a common Valium dose. It is not available legally in the United States, but it is generally available in the rest of the world. It is the most widely prescribed drug of its class in Europe. It has been successfully used to treat alcoholics suffering from delirium tremens. Flunitrazepam is very widely used by heroin addicts to boost the effects of the drug without risking overdose and to ease withdrawal. (http://www.cesar.umd.edu/cesar/drugs/rohypnol.asp; http://www.ncbi.nlm.nih.gov/pubmed/810233; http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3454351/.)

The limited studies on drug facilitated sexual assault have found that although a person may be surreptitiously drugged with Rohypnol, GHB, or ketamine, it is much more common for a person to consume these drugs voluntarily for their intoxicating effects. Two major studies were funded by the United States Department of Justice. One of these studies considered data collected from college students. The other examined data collected from women reporting sexual assaults in cities in a number of states across the country. The college study indicated that 7.8% of women were sexually assaulted when they were incapacitated after voluntarily consuming drugs and/or alcohol and 0.6% were assaulted when they were given a drug surreptitiously. The great majority of incapacitated victims reported consuming alcohol (89%) or being voluntarily intoxicated prior to the assault (82%). The multiple city study concluded that most of the subjects testing positive for these ketamine, GHB and flunitrazepam had taken them voluntarily. (Krebs, et al., The Campus Sexual Assault Study, National Institute of Justice (Oct. 2007); Negruz, et al., Estimate of the Incidence of Drug-Facilitated Sexual Assault in the U.S, Univ. of Illinois, Chicago (Nov. 2005).)

This bill targets persons who possess these drugs for predatory purposes, rather than those who merely possess these drugs for personal use.

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

According to the Senate Appropriations Committee, potentially moderate state costs (General Fund) for incarceration in prison of any defendant who is not eligible for a county jail sentence under Penal Code Section 1170 (h) because the defendant has been convicted of a serious or violent felony, or must register as a sex offender.

SUPPORT: (Verified 9/2/15)

California Insurance Commissioner Dave Jones

Association for Los Angeles Deputy Sheriffs

California College and University Police Chiefs Association

California Correctional Supervisors Organization

California Narcotic Officers Association

Crime Victims United of California

Los Angeles Police Protective League

Peace Officers Research Association of California

Riverside Sheriffs’ Association

San Bernardino County Sheriff

OPPOSITION: (Verified 9/2/15)

Legal Services for Prisoners with Children

ASSEMBLY FLOOR: 78-0, 9/2/15

AYES: Achadjian, Alejo, Travis Allen, 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, Melendez, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood

NO VOTE RECORDED: Mullin, Atkins

Prepared by: Jerome McGuire / PUB. S. /

9/2/15 18:06:02

**** END ****

 UNFINISHED BUSINESS  

Bill No: SB 333

Author: Galgiani (D), et al.

Amended: 8/31/15

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/28/15

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

SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/28/15

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

SENATE FLOOR: 40-0, 6/3/15

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: 78-0, 9/2/15 - See last page for vote

SUBJECT: Controlled substances

SOURCE: Author

DIGEST: This bill provides that possession of gamma-Hydroxybutyric acid (GHB), flunitrazepam (Rohypnol), or ketamine with the intent to commit a sex crime, as defined, is a felony, punishable pursuant to Penal Code Section 1170, subdivision (h), for a felony term of 16 months, two years or three years.

Assembly Amendments provide that an executed felony sentence for possession of GHB, flunitrazepam or ketamine shall be served pursuant to Penal Code Section 1170, subdivision (h), in a county jail unless the defendant has a prior or current conviction for a serious or violent felony, as specified, or is required to register as a sex offender.

ANALYSIS:

Existing law:

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

2. Classifies controlled substances in five schedules according to their danger and potential for abuse. Schedule I controlled substances have the greatest restrictions and penalties, including prohibiting the prescribing of a Schedule I controlled substance. (Health & Saf. Code §§ 11054 to 11058.)

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

4. Provides that every person who transports, imports into the state, sells, furnishes, administers, or gives away, or offers to transport, import into the state, sell, furnish, or give away, or attempts to import into this state or transport cocaine, cocaine base, or heroin, or other specified controlled substances listed in the controlled substance schedule, without a written prescription from a licensed physician, dentist, podiatrist, or veterinarian shall be punished by imprisonment for three, four, or five years. (Health & Saf. Code, § 11352, subd. (a).)

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

6. Provides that every person that transports, imports into the state, sells, furnishes, administers, or gives away, or offers to transport, import into the state, sell, furnish, or give away, or attempts to import into this state or transport methamphetamine, or other specified controlled substances listed in the controlled substance schedule, without a written prescription from a licensed physician, dentist, podiatrist, or veterinarian shall be punished by imprisonment for two, three, or four years. (Health & Saf. Code § 11379, subd. (a).)

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

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

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

This bill:

1. Provides that a person who possesses GHB, ketamine or flunitrazepam, also known by the trade name Rohypnol, with the intent to commit sexual assault, as defined, is guilty of a felony, punishable by imprisonment pursuant to Penal Code Section 1170, subdivision (h), for 16 months, or two or three years in a county jail, or served in prison if the defendant has a prior or current conviction for a serious or violent felony, or is required to register as a sex offender.

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

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

Background

The crime defined by this bill – possession of a specified drug with intent to commit a sex crime – is similar to an attempt to commit a sex crime, but with an important distinction. An attempt is the intent to commit a crime and an affirmative, yet unsuccessful, step towards committing the crime. “Mere preparation” is not an affirmative step. (People v. Breverman (1998) 19 Cal.4th 142, 154; CALCRIM 406.) This bill allows conviction of defendants who did not go beyond preparation. For example, the defendant told his companions at a bar that he wanted to drug a woman and have sex with her. He puts a drug in her drink, but her friends intervene when the defendant tries to get the woman to leave the bar with him. This could be described as preparation to commit a sex crime, not a direct step towards commission of the crime, and thus not an attempt. This conduct would constitute guilt of possession of a drug with intent to commit a sex crime.

Defendants with prior sex offenses are excluded from the misdemeanor drug possession provisions in Proposition 47. However, if an excluded defendant’s possession of a drug had a sexual motivation or connection, a simple possession conviction would not reflect that. Even if the prior was a sex offense, there would be nothing about the current conviction indicating a sexual motivation or connection. In contrast, in a prosecution for possession with intent to commit a sex crime under this bill, the defendant’s prior convictions and misconduct could be used as evidence of his intent in the current case.

Ketamine is an anesthetic-dissociative drug. It appears to be the drug of choice in pediatric surgery and pediatric emergency pain management, as it blocks pain without full unconsciousness and depressed respiration. Ketamine is widely used in Africa and other countries with low per-capita income levels, as it is effective, cheap, and safe. Greater restrictions on ketamine have caused alarm in Africa among public health experts. Ketamine has also recently been used as an “off label” drug for the treatment of depressions. Patients lose depressive symptoms quickly and the effect lasts for months. Clinical trials for use of ketamine as a depression treatment have been remarkably positive. Ketamine is also used for intoxication or mind-altering experiences. Users seek the dissociative experience that would be considered an unwanted or problematic side effect in medial use. (http://www.ncbi.nlm.nih.gov/pubmed/18645539; http://emupdates.com/wp-content/uploads/2011/01/ACEP-Ketamine-Guideline-2011.pdf; http://www.theguardian.com/world/2015/feb/27/raver-drug-ketamine-control-plan-at-un-condemned-as-potential-disaster; http://www.nytimes.com/2014/12/10/business/special-k-a-hallucinogen-raises-hopes-and-concerns-as-a-treatment-for-depression.html?_r=0; http://www.nimh.nih.gov/about/director/2014/ketamine.shtml; http://www.nimh.nih.gov/health/trials/depression.shtml.)

GHB is prescribed to narcoleptics to allow them to sleep deeply at night. It is often used as a so-called “club drug.” It has been described as being similar to alcohol intoxication, but with more euphoric effect and without a hangover. GHB is dangerous when mixed with alcohol, as both are central nervous system depressants. (“The silent G,” Contemporary Drug Problems, 2012; https://www.erowid.org/experiences/subs/exp_GHB.shtml#General.)

Flunitrazepam is a benzodiazepine, the class of sedative-hypnotic drugs that includes Xanax, Valium, and many others. It was developed in 1965. It has been described as being 10 times more potent than Valium, but is typically prescribed in doses that are 1/10th that of a common Valium dose. It is not available legally in the United States, but it is generally available in the rest of the world. It is the most widely prescribed drug of its class in Europe. It has been successfully used to treat alcoholics suffering from delirium tremens. Flunitrazepam is very widely used by heroin addicts to boost the effects of the drug without risking overdose and to ease withdrawal. (http://www.cesar.umd.edu/cesar/drugs/rohypnol.asp; http://www.ncbi.nlm.nih.gov/pubmed/810233; http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3454351/.)

The limited studies on drug facilitated sexual assault have found that although a person may be surreptitiously drugged with Rohypnol, GHB, or ketamine, it is much more common for a person to consume these drugs voluntarily for their intoxicating effects. Two major studies were funded by the United States Department of Justice. One of these studies considered data collected from college students. The other examined data collected from women reporting sexual assaults in cities in a number of states across the country. The college study indicated that 7.8% of women were sexually assaulted when they were incapacitated after voluntarily consuming drugs and/or alcohol and 0.6% were assaulted when they were given a drug surreptitiously. The great majority of incapacitated victims reported consuming alcohol (89%) or being voluntarily intoxicated prior to the assault (82%). The multiple city study concluded that most of the subjects testing positive for these ketamine, GHB and flunitrazepam had taken them voluntarily. (Krebs, et al., The Campus Sexual Assault Study, National Institute of Justice (Oct. 2007); Negruz, et al., Estimate of the Incidence of Drug-Facilitated Sexual Assault in the U.S, Univ. of Illinois, Chicago (Nov. 2005).)

This bill targets persons who possess these drugs for predatory purposes, rather than those who merely possess these drugs for personal use.

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

According to the Senate Appropriations Committee, potentially moderate state costs (General Fund) for incarceration in prison of any defendant who is not eligible for a county jail sentence under Penal Code Section 1170 (h) because the defendant has been convicted of a serious or violent felony, or must register as a sex offender.

SUPPORT: (Verified 9/2/15)

California Insurance Commissioner Dave Jones

Association for Los Angeles Deputy Sheriffs

California College and University Police Chiefs Association

California Correctional Supervisors Organization

California Narcotic Officers Association

Crime Victims United of California

Los Angeles Police Protective League

Peace Officers Research Association of California

Riverside Sheriffs’ Association

San Bernardino County Sheriff

OPPOSITION: (Verified 9/2/15)

Legal Services for Prisoners with Children

ASSEMBLY FLOOR: 78-0, 9/2/15

AYES: Achadjian, Alejo, Travis Allen, 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, Melendez, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood

NO VOTE RECORDED: Mullin, Atkins

Prepared by: Jerome McGuire / PUB. S. /

9/2/15 19:29:53

**** END ****

Date of Hearing: July 8, 2015

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

SBPCA Bill Id:SB 333

Author:(Galgiani) – As Amended Ver:May 6, 2015

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

SUMMARY:

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

FISCAL EFFECT:

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

COMMENTS:

1. Purpose. According to the author, "During my time in the State Legislature, this body has been dedicated to spreading awareness and preventing sexual assault. When a ballot measure such as Proposition 47 is placed in front of voters, the potential for unintended consequences arise. I firmly believe that voters in California did not intend to weaken sexual assault statutes by passing Prop 47. The malicious intent behind possessing and using ‘date rape’ drugs on another individual is a heinous act deserving of a serious consequence."

2. Background. On November 4, 2014, California voters approved Proposition 47, also known as the Safe Neighborhoods and Schools Act, which reduced penalties for certain offenders convicted of nonserious and nonviolent property and drug crimes. Proposition 47 also allows inmates serving sentences for crimes affected by the reduced penalties to apply to be resentenced.

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

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

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

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

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

4. Related Legislation. AB 46 (Lackey), held on this committee's Suspense file, is nearly identical to this bill.

5. Prior Legislation:
   
   

1. SB 649 (Leno), of the 2013-2014 Legislative Session, would have made the simple possession for personal use of cocaine, cocaine base, heroin, opium, and other specified narcotics, opiates and hallucinogens listed in the controlled substance schedule an alternate felony/misdemeanor, rather than a straight felony. SB 649 was vetoed. In his message, the Governor cited the realignment legislation as the proper vehicle to examine the current sentencing structure.
   
   

2. SB 1506 (Leno), of the 2011-2012 Legislative Session, would have made the unlawful possession of specified controlled substances a misdemeanor. SB 1506 failed passage on the Senate floor.
   
   

3. SB 1067 (Horton), of the 2003-2004 Legislative session, would have excluded the drugs GHB, rohypnol, and ketamine from coverage by the term "nonviolent drug possession offense" thereby making possession of these drugs ineligible for probation and drug treatment under Proposition 36, approved by the voters on November 7, 2000. SB 1067 failed passage in Assembly Public Safety.

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

Date of Hearing: June 30, 2015

Counsel: Stella Choe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Bill Quirk, Chair

SBPCA Bill Id:SB 333

Author:(Galgiani) – As Amended Ver:May 6, 2015

SUMMARY: Specifies that any person who possesses Ketamine, gamma hydroxybutyric acid (GHB) or Rohypnol with the intent to commit sexual assault, as defined, is guilty of a felony punishable by imprisonment in the state prison for 16 months, or two or three years. Specifically, this bill:

1. Defines "sexual assault" for the purposes of this bill to mean conduct in violation of specified provisions of law penalizing sexual battery, rape, spousal rape, sodomy, or oral copulation.
   
   

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

EXISTING LAW:

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

2. Classifies controlled substances in five schedules according to their danger and potential for abuse. Schedule I controlled substances have the greatest restrictions and penalties, including prohibiting the prescribing of a Schedule I controlled substance. (Health & Saf. Code, §§ 11054 to 11058.)
   
   

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

4. Provides that every person that transports, imports into the state, sells, furnishes, administers, or gives away, or offers to transport, import into the state, sell, furnish, or give away, or attempts to import into this state or transport cocaine, cocaine base, or heroin, or other specified controlled substances listed in the controlled substance schedule, without a written prescription from a licensed physician, dentist, podiatrist, or veterinarian shall be punished by imprisonment for three, four, or five years. (Health & Saf. Code, § 11352, subd. (a).)
   
   

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

6. Provides that every person that transports, imports into the state, sells, furnishes, administers, or gives away, or offers to transport, import into the state, sell, furnish, or give away, or attempts to import into this state or transport methamphetamine, or other specified controlled substances listed in the controlled substance schedule, without a written prescription from a licensed physician, dentist, podiatrist, or veterinarian shall be punished by imprisonment for two, three, or four years. (Health & Saf. Code, § 11379, subd. (a).)
   
   

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

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

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

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author's Statement: According to the author, "During my time in the State Legislature, this body has been dedicated to spreading awareness and preventing sexual assault. When a ballot measure such as Proposition 47 is placed in front of voters, the potential for unintended consequences arise. I firmly believe that voters in California did not intend to weaken sexual assault statutes by passing Prop 47. The malicious intent behind possessing and using ‘date rape’ drugs on another individual is a heinous act deserving of a serious consequence."
   
   

2. Proposition 47: On November 4, 2014, California voters approved Proposition 47, also known as the Safe Neighborhoods and Schools Act, which reduced penalties for certain offenders convicted of nonserious and nonviolent property and drug crimes. Proposition 47 also allows inmates serving sentences for crimes affected by the reduced penalties to apply to be resentenced.
   
   According to the California Secretary of State's web site, 59.6 percent of voters approved Proposition 47. (See <http://elections.cdn.sos.ca.gov/sov/2014-general/pdf/2014-complete-sov.pdf> [as of Mar. 14, 2015].) The purpose of the measure was "to maximize alternatives for nonserious, nonviolent crime, and to invest the savings generated from this act into prevention and support programs in K–12 schools, victim services, and mental health and drug treatment." (Ballot Pamp., Gen. Elec. (Nov. 4, 2014), Text of Proposed Laws, p. 70.) One of the ways the measure created savings was by requiring misdemeanor penalties instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession for personal use, unless the defendant has prior convictions for specified violent crimes. (Ibid.)
   
   Four months into its implementation, Proposition 47 has resulted in fewer inmates in state prisons and county jails. According to the Legislative Analysts' Office (LAO), "As of January 28, 2015, the inmate population in the state's prisons was about 113,500, or 3,600

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

3. California Constitutional Limitations on Amending a Voter Initiative:  Because Proposition 47 was a voter initiative, the Legislature may not amend the statute without subsequent voter approval unless the initiative permits such amendment, and then only upon whatever conditions the voters attached to the Legislature's amendatory powers.  (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 568; see also Cal. Const., art. II, § 10, subd. (c).)  The California Constitution states, "The Legislature may amend or repeal referendum statutes.  It may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval."  (Cal. Const., art. II, § 10, subd. (c).) Therefore, unless the initiative expressly authorizes the Legislature to amend, only the voters may alter statutes created by initiative. 
   
   The purpose of California's constitutional limitation on the Legislature's power to amend initiative statutes is to protect the people's initiative powers by precluding the Legislature from undoing what the people have done, without the electorate's consent.  Courts have a duty to jealously guard the people's initiative power and, hence, to apply a liberal construction to this power wherever it is challenged in order that the right to resort to the initiative process is not improperly annulled by a legislative body.  (Proposition 103 Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th 1473.)  Yet, despite the strict bar on the Legislature's authority to amend initiative statutes, judicial decisions have recognized that the Legislature is not thereby precluded from enacting laws addressing the general subject matter of an initiative.  The Legislature remains free to address a "related but distinct area" or a matter that an initiative measure "does not specifically authorize or prohibit." (People v. Kelly (2010) 47 Cal.4th 1008, 1025-1026.)
   
   As to the Legislature's authority to amend the initiative, Proposition 47 states:  "This act shall be broadly construed to accomplish its purposes.  The provisions of this measure may be amended by a two‑thirds vote of the members of each house of the Legislature and signed by the Governor so long as the amendments are consistent with and further the intent of this act. The Legislature may by majority vote amend, add, or repeal provisions to further reduce the penalties for any of the offenses addressed by this act."  (Ballot Pamp., Gen. Elec. (Nov. 4, 2014), Text of Proposed Laws, p. 74.)
   
   This bill does not affect Proposition 47 because this bill does not deal with simple possession of drugs. Similar to the statutes that require specific intent to sell controlled substances which remain felonies, this bill will require specific intent to commit sexual assault in order to charge a defendant with a felony. Because the bill as amended does not affect Proposition 47, this bill does not have to go before the voters.
   
   

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

(National Inst. on Drug Abuse, Drug Facts: Club Drugs (GHB, Ketamine, and Rohypnol) (December 2014) <http://www.drugabuse.gov/publications/drugfacts/club-drugs-ghb-ketamine-rohypnol> [as of Mar. 18, 2015].) Studies also show that these drugs are commonly used by members in the LGBT community. (Palamar and Halkitis, A Qualitative Analysis of GHB Use Among Gay Men: Reasons for Use Despite Potential Adverse Outcomes (Jan. 2006); Mansergh, et al., The Circuit Party Men’s Health Survey: Findings and Implications for Gay and Bisexual Men, American Journal of Public Health (June 2001).)

GHB: According to the National Institute on Drug Abuse, GHB is a central nervous system (CNS) depressant that was approved by the Food and Drug Administration (FDA) in 2002 for use in the treatment of narcolepsy, which is a sleep disorder. This approval came with severe restrictions, including its use only for the treatment of narcolepsy, and the requirement for a patient registry monitored by the FDA. GHB is also a metabolite of the inhibitory neurotransmitter gamma-aminobutyric acid (GABA). It exists naturally in the brain, but at much lower concentrations than those found when GHB is abused.

Rohypnol (flunitrazepam): According to the National Institute on Drug Abuse, Rohypnol is a benzodiazepine (chemically similar to sedative-hypnotic drugs such as Valium or Xanax), but it is not approved for medical use in this country, and its importation is banned.

Ketamine: According to the National Institute on Drug Abuse, Ketamine is a dissociative anesthetic, mostly used in veterinary practice. (National Inst. on Drug Abuse, Drug Facts: Club Drugs (GHB, Ketamine, and Rohypnol) (December 2014) <http://www.drugabuse.gov/publications/drugfacts/club-drugs-ghb-ketamine-rohypnol> [as of Mar. 18, 2015].) Recently, small studies at prestigious medical centers like Yale, Mount Sinai and the National Institute of Mental Health suggest Ketamine can relieve depression in many people who are not helped by widely used conventional antidepressants like Prozac or Lexapro. (Hamilton, Depression Treatments Inspired by Club Drug Move Ahead in Tests, (Jun. 2015) National Public Radio < http://www.npr.org/sections/health-shots/2015/05/28/409800015/ketamine-depression-treatments-inspired-by-club-drug-move-ahead-in-tests> [as of June 19, 2015]; Pollack, Special K, a Hallucinogen, Raises Hopes and Concerns as a Treatment for Depression, New York Times (Dec. 9, 2014).)

Due to these drugs' uses both recreationally and clinically, any law that punishes simple possession of these drugs would likely result in capturing many people who do not possess these drugs for predatory purposes. This bill specifies that a person must possess one of these drugs with the intent to commit sexual assault in order for the person to be punished with a felony.

5. Drug-Facilitated Sexual Assault Statistics: Although a person may be surreptitiously drugged with Rohypnol, GHB, or Ketamine in order to incapacitate that person, it is much more common for a person to consume these drugs voluntarily for its intoxicating effects.
   
   One study, funded by the National Institute of Justice, examined the prevalence, nature, and reporting of various types of sexual assault experienced by college students. (Krebs, et al., The Campus Sexual Assault Study, National Institute of Justice (Oct. 2007).) The researchers worked with two large, public universities to collect data from over 6,800 undergraduate students (5,466 women and 1,375 men). The data indicated that 7.8% of women were sexually assaulted when they were incapacitated after voluntarily consuming drugs and/or alcohol and 0.6% were sexually assaulted when they were incapacitated after having been given a drug without their knowledge. (Id. at p. iv; see also Section 6-1.) The study found that the majority of the sexual assault victims that were incapacitated reported having consumed alcohol (89%) or being intoxicated prior to being assaulted (82%). (Id. at Section 5.1.3.)

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

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

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

While drug-facilitated sexual assault is a serious problem, these studies confirm that it occurs most often after an individual's own recreational use of drugs, rather than surreptitious drugging by another person. Drugs such as Rohypnol, Ketamine and GHB may be used to facilitate sexual assault of an incapacitated person, but these are not the only drugs that can be used, nor are they the most commonly used. The substance that is most commonly found in sexual assault victims is alcohol. (Krebs, The Campus Sexual Assault Study, supra at p. 89; also see Grimes, Alcohol is by far the most dangerous "date rape drug" (Sept. 22, 2014) The Guardian, <http://www.theguardian.com/science/blog/2014/sep/22/alcohol-date-rape-drug-facilitated-sexual-assault-dfsa> [as of Mar. 19, 2015].)

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

6. Argument in Support: According to the California Probation, Parole and Correctional Association, "Ketamine, flunitrazapam, or gamma hydroxybutyric acid (GHB) commonly known as 'date rape' or 'club' drugs can be found as pills, liquids, or powders. These drugs are used by perpetrators with the intent to assist in sexual assault or robbery. When ingested, these drugs can affect a person very quickly and cause victims to become weak, confused, and even pass out. Victims usually do not remember what happened while they were drugged.
   
   "These drugs while lawful when used for medical purposes, are very potent and dangerous. Those who use them with the intent to commit sexual and physical assault, and other crimes, should be prosecuted accordingly."
   
   

7. Argument in Opposition: According to Legal Services for Prisoners with Children, "A small number of people may intend to use these drugs to aid in committing an assault. However, we have seen that harsher punishment has not proven to be a deterrent in drug use, drug abuse or in rates of sexual violence over the past decades. Instead, we have seen a concurrent rise in drug use, abuse, and drug related violence along with increased penalties. Incredibly, decreasing penalties, increasing education and increasing education and increasing compassion have all been proven to lower the harms associated with substance abuse and not to increase rates of use.

"Our prisons and jails are overcrowded, underfunded, and ill-equipped to address and dismantle the culture of sexual violence, misogyny and oppression that leads to sexual assault. This bill may make it more likely that more people spend more time in prison – environments of sexual aggression, violence, and oppression – where they are unlikely to reform, and from which they may be more likely to go on to become violence or hardened criminals. Furthermore, this bill will force taxpayers to bear the burdens of arrest, trial and felony imprisonment – more than $47,000 per person, per year of incarceration. This money is better spent on safer neighborhoods and schools – exactly where Proposition 47 voters meant for it to go."

8. Related Legislation: AB 46 (Lackey) is substantially similar to this bill. AB 46 was held in the Committee on Appropriations' Suspense File.
   
   

9. Prior Legislation:
   
   

   1. SB 649 (Leno), of the 2013-2014 Legislative Session, would have made the simple possession for personal use of cocaine, cocaine base, heroin, opium, and other specified narcotics, opiates and hallucinogens listed in the controlled substance schedule an alternate felony/misdemeanor, rather than a straight felony. SB 649 was vetoed.
      
      

   2. SB 1506 (Leno), of the 2011-2012 Legislative Session, would have made the unlawful possession of specified controlled substances a misdemeanor. SB 1506 failed passage on the Senate floor.
      
      

   3. SB 1067 (Horton), of the 2003-2004 Legislative session, would have excluded the drugs GHB, Rohypnol, and Ketamine from coverage by the term "nonviolent drug possession offense" thereby making possession of these drugs ineligible for probation and drug treatment under Proposition 36, approved by the voters on November 7, 2000. SB 1067 failed passage in this Committee.
      
      

REGISTERED SUPPORT / OPPOSITION:

Support

California District Attorneys Association (Sponsor)

California Peace Officers' Association

California Police Chiefs Association

California Probation, Parole and Correctional Association
California Sexual Assault Investigators Association
California State Lodge, Fraternal Order of Police

California State Sheriffs' Association
Crime Victims Action Alliance

Insurance Commissioner Dave Jones

Los Angeles County District Attorney's Office
Los Angeles County Professional Peace Officers Association
Long Beach Police Officers Association
Sacramento County Deputy Sheriffs’ Association

Opposition

Legal Services for Prisoners with Children

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

 THIRD READING  

Bill No: SB 333

Author: Galgiani (D), et al.

Amended: 5/6/15

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/28/15

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

SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/28/15

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

SUBJECT: Controlled substances

SOURCE: Author

DIGEST: This bill provides that possession of gamma-Hydroxybutyric acid (GHB), flunitrazepam (Rohypnol), or ketamine with the intent to commit a sex crime, as defined, is a felony, punishable by a prison term of 16 months, two years or three years.

ANALYSIS:

Existing law:

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

2) Classifies controlled substances in five schedules according to their danger and potential for abuse. Schedule I controlled substances have the greatest restrictions and penalties, including prohibiting the prescribing of a Schedule I controlled substance. (Health & Saf. Code §§ 11054 to 11058.)

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

4) Provides that every person who transports, imports into the state, sells, furnishes, administers, or gives away, or offers to transport, import into the state, sell, furnish, or give away, or attempts to import into this state or transport cocaine, cocaine base, or heroin, or other specified controlled substances listed in the controlled substance schedule, without a written prescription from a licensed physician, dentist, podiatrist, or veterinarian shall be punished by imprisonment for three, four, or five years. (Health & Saf. Code, § 11352, subd. (a).)

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

6) Provides that every person that transports, imports into the state, sells, furnishes, administers, or gives away, or offers to transport, import into the state, sell, furnish, or give away, or attempts to import into this state or transport methamphetamine, or other specified controlled substances listed in the controlled substance schedule, without a written prescription from a licensed physician, dentist, podiatrist, or veterinarian shall be punished by imprisonment for two, three, or four years. (Health & Saf. Code § 11379, subd. (a).)

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

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

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

This bill:

1) Provides that a person who possesses GHB, ketamine or flunitrazepam, also known by the trade name Rohypnol, with the intent to commit sexual assault, as defined, is guilty of a felony, punishable by imprisonment in state prison for 16 months, or two or three years.

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

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

Background

The crime defined by this bill – possession of a specified drug with intent to commit a sex crime – is similar to an attempt to commit a sex crime, but with an important distinction. An attempt is the intent to commit a crime and an affirmative, yet unsuccessful, step towards committing the crime. “Mere preparation” is not an affirmative step. (People v. Breverman (1998) 19 Cal.4th 142, 154; CALCRIM 406.) This bill allows conviction of defendants who did not go beyond preparation. For example, the defendant told his companions at a bar that he wanted to drug a woman and have sex with her. He puts a drug in her drink, but her friends intervene when the defendant tries to get the woman to leave the bar with him. This could be described as preparation to commit a sex crime, not a direct step towards commission of the crime, and thus not an attempt. This conduct would constitute guilt of possession of a drug with intent to commit a sex crime.

Defendants with prior sex offenses are excluded from the misdemeanor drug possession provisions in Proposition 47. However, if an excluded defendant’s possession of a drug had a sexual motivation or connection, a simple possession conviction would not reflect that. Even if the prior was a sex offense, there would be nothing about the current conviction indicating a sexual motivation or connection. In contrast, in a prosecution for possession with intent to commit a sex crime under this bill, the defendant’s prior convictions and misconduct could be used as evidence of his intent in the current case.

Ketamine is an anesthetic-dissociative drug. It appears to be the drug of choice in pediatric surgery and pediatric emergency pain management, as it blocks pain without full unconsciousness and depressed respiration. Ketamine is widely used in Africa and other countries with low per-capita income levels, as it is effective, cheap, and safe. Greater restrictions on ketamine have caused alarm in Africa among public health experts. Ketamine has also recently been used as an “off label” drug for the treatment of depressions. Patients lose depressive symptoms quickly and the effect lasts for months. Clinical trials for use of ketamine as a depression treatment have been remarkably positive. Ketamine is also used for intoxication or mind-altering experiences. Users seek the dissociative experience that would be considered an unwanted or problematic side effect in medial use. (http://www.ncbi.nlm.nih.gov/pubmed/18645539; http://emupdates.com/wp-content/uploads/2011/01/ACEP-Ketamine-Guideline-2011.pdf; http://www.theguardian.com/world/2015/feb/27/raver-drug-ketamine-control-plan-at-un-condemned-as-potential-disaster; http://www.nytimes.com/2014/12/10/business/special-k-a-hallucinogen-raises-hopes-and-concerns-as-a-treatment-for-depression.html?_r=0; http://www.nimh.nih.gov/about/director/2014/ketamine.shtml; http://www.nimh.nih.gov/health/trials/depression.shtml.)

GHB is prescribed to narcoleptics to allow them to sleep deeply at night. It is often used as a so-called “club drug.” It has been described as being similar to alcohol intoxication, but with more euphoric effect and without a hangover. GHB is dangerous when mixed with alcohol, as both are central nervous system depressants. (“The silent G,” Contemporary Drug Problems, 2012; https://www.erowid.org/experiences/subs/exp_GHB.shtml#General.)

Flunitrazepam is a benzodiazepine, the class of sedative-hypnotic drugs that includes Xanax, Valium, and many others. It was developed in 1965. It has been described as being 10 times more potent than Valium, but is typically prescribed in doses that are 1/10^th that of a common Valium dose. It is not available legally in the United States, but it is generally available in the rest of the world. It is the most widely prescribed drug of its class in Europe. It has been successfully used to treat alcoholics suffering from delirium tremens. Flunitrazepam is very widely used by heroin addicts to boost the effects of the drug without risking overdose and to ease withdrawal. (http://www.cesar.umd.edu/cesar/drugs/rohypnol.asp; http://www.ncbi.nlm.nih.gov/pubmed/810233; http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3454351/.)

The limited studies on drug facilitated sexual assault have found that although a person may be surreptitiously drugged with Rohypnol, GHB, or ketamine, it is much more common for a person to consume these drugs voluntarily for their intoxicating effects. Two major studies were funded by the United States Department of Justice. One of these studies considered data collected from college students. The other examined data collected from women reporting sexual assaults in cities in a number of states across the country. The college study indicated that 7.8% of women were sexually assaulted when they were incapacitated after voluntarily consuming drugs and/or alcohol and 0.6% were assaulted when they were given a drug surreptitiously. The great majority of incapacitated victims reported consuming alcohol (89%) or being voluntarily intoxicated prior to the assault (82%). The multiple city study concluded that most of the subjects testing positive for these ketamine, GHB and flunitrazepam had taken them voluntarily. (Krebs, et al., The Campus Sexual Assault Study, National Institute of Justice (Oct. 2007); Negruz, et al., Estimate of the Incidence of Drug-Facilitated Sexual Assault in the U.S, Univ. of Illinois, Chicago (Nov. 2005).)

This bill targets persons who possess these drugs for predatory purposes, rather than those who merely possess these drugs for personal use.

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

According to the Senate Appropriations Committee:

• Potential increase in state costs (General Fund) to the extent creating the new felony offense leads to additional commitments to state prison. In the absence of comparable data, it is unknown how many cases may be impacted on an annual basis. For every five new commitments to state prison, costs would exceed $150,000 per year assuming the in-state contract bed cost of $34,000. To the extent the actual number of felony convictions is greater or fewer would commensurately impact annual state costs.

• Potential reduction in future local incarceration costs (Local) to the extent violations would have otherwise led to misdemeanor convictions subject to a term in county jail.

SUPPORT: (Verified 5/28/15)

California Insurance Commissioner Dave Jones

Association for Los Angeles Deputy Sheriffs

California College and University Police Chiefs Association

California Correctional Supervisors Organization

California Narcotic Officers Association

Crime Victims United of California

Los Angeles Police Protective League

Peace Officers Research Association of California

Riverside Sheriffs’ Association

San Bernardino County Sheriff

OPPOSITION: (Verified 5/29/15)

Legal Services for Prisoners with Children

Prepared by: Jerome McGuire / PUB. S. /

5/31/15 13:47:28

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

SB 333 (Galgiani) - Controlled substances

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

Bill Summary:

SB 333 would make it a felony, punishable by a state prison term of 16 months, two years or three years, to possess ketamine, flunitrazepam (Rohypnol), or gamma hydroxybutyric acid (GHB), with the intent to commit sexual assault, as specified.

Fiscal Impact:

• Potential increase in state costs (General Fund) to the extent creating the new felony offense leads to additional commitments to state prison. In the absence of comparable data, it is unknown how many cases may be impacted on an annual basis. For every five new commitments to state prison, costs would exceed $150,000 per year assuming the in-state contract bed cost of $34,000. To the extent the actual number of felony convictions is greater or fewer would commensurately impact annual state costs.

• Potential reduction in future local incarceration costs (Local) to the extent violations would have otherwise led to misdemeanor convictions subject to a term in county jail.

Background:

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

Prior to the passage of Proposition 47, the Safe Neighborhoods and Schools Act, which was approved by the voters in November 2014, the offense of simple possession of specified controlled substances, including Rohypnol and GHB, was an alternate felony misdemeanor (wobbler).

The provisions of this measure go beyond the act of simple possession of a specified controlled substance to require specific intent to commit a sexual assault in order to charge a defendant with the prison-eligible felony.

Proposed Law:

This bill would provide that possession of ketamine, Rohypnol, or GHB with the intent to commit a sex crime, as defined, is a felony, punishable by a state prison term of 16 months, two years, or three years. This bill:

• Provides that for purposes of this measure, “sexual assault” means conduct in violation of specified provisions related to sexual assault committed against a victim who is prevented from resisting by an intoxicating or anesthetic substance, or any controlled substance.

• Includes Legislative findings and declarations which, among other things, state that in order to deter the possession of ketamine, GHB, and Rohypnol by sexual predators and to take steps to prevent the use of these drugs to incapacitate victims for purposes of sexual exploitation, it is necessary and appropriate that an individual who possesses one of these substances for predatory purposes be subject to felony penalties.

Related Legislation:

None applicable.

Staff Comments:

The CDCR indicates that while the actual impact this bill will have on the state prison population is unknown, and comparable data is not available to help inform the potential actual impact of this measure, this bill could potentially result in an impact on the number of commitments to state prison as it creates a new prison-eligible felony.

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

The Three-Judge Court has ordered the State to reduce its prison population to 137.5 percent of the prison system’s design capacity by February 28, 2016. Pursuant to its February 10, 2014 order, the Court has ordered the CDCR to implement several population reduction measures, prohibited an increase in the population of inmates housed in out-of-state facilities, and indicated the Court will maintain jurisdiction over the State for as long as necessary to ensure that the State’s compliance with the 137.5 percent final benchmark is durable, and that such durability is firmly established. Any future increases to the State's prison population could challenge the ability of the State to reach and maintain such a “durable solution,” and could require the State to pursue one of several options, including contracting-out for additional bed space or releasing current inmates early onto parole.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Loni Hancock, Chair

2015 - 2016 Regular

Bill No: SB 333 Hearing Date: April 28, 2015

Subject: Controlled Substances

HISTORY

Source: California District Attorneys Association

Prior Legislation: None

Support: Association for Los Angeles Deputy Sheriffs; California College and University Police Chiefs Association; California Correctional Supervisors Organization; California Narcotic Officers Association; Los Angeles Police Protective League; Peace Officers Research Association of California; Riverside Sheriffs Association; Crime Victims United of California; San Bernardino County Sheriff; California Insurance Commissioner Dave Jones

Opposition: Ella Baker Center for Human Rights; Legal Services for Prisoners with Children

PURPOSE

The purpose of this bill is to provide that possession of gamma-Hydroxybutyric acid (GHB), flunitrazepam (Rohypnol), or ketamine with the intent to commit a sex crime, as defined, is a felony, punishable by a prison term of sixteen months, two years or three years.

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

Existing law classifies controlled substances in five schedules according to their danger and potential for abuse. Schedule I controlled substances have the greatest restrictions and penalties, including prohibiting the prescribing of a Schedule I controlled substance. (Health & Saf. Code, §§ 11054 to 11058.)

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

Existing law provides that every person that transports, imports into the state, sells, furnishes, administers, or gives away, or offers to transport, import into the state, sell, furnish, or give away, or attempts to import into this state or transport cocaine, cocaine base, or heroin, or other specified controlled substances listed in the controlled substance schedule, without a written prescription from a licensed physician, dentist, podiatrist, or veterinarian shall be punished by imprisonment for three, four, or five years. (Health & Saf. Code, § 11352, subd. (a).)

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

Existing law provides that every person that transports, imports into the state, sells, furnishes, administers, or gives away, or offers to transport, import into the state, sell, furnish, or give away, or attempts to import into this state or transport methamphetamine, or other specified controlled substances listed in the controlled substance schedule, without a written prescription from a licensed physician, dentist, podiatrist, or veterinarian shall be punished by imprisonment for two, three, or four years. (Health & Saf. Code, § 11379, subd. (a).)

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

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

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

This bill provides that a person who possesses gamma-Hydroxybutyric acid (GHB), ketamine or flunitrazepam, also known by the trade name Rohypnol, with the intent to commit sexual assault, as defined, is guilty of a felony, punishable by imprisonment in state prison for 16 months, or two or three years.

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

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

RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

For the past 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:

In November 2014, Proposition 47 was approved by voters to reclassify many crimes that were previously eligible to be charged as either as a felony, or a misdemeanor, as solely misdemeanors, unless the defendant had a prior sex crime or specified violent felony conviction. This included reducing the penalties for the illegal possession of the drugs Rohypnol and GHB —commonly known as 'date rape' drugs. The law enforcement community and sexual assault survivor advocate organizations have expressed concern over this change and how it could potentially weaken current sexual assault laws.

Originally, Senate Bill 333 would have restored wobbler status for the simple possession of these drugs. However, after working with concerned parties I have amended the bill to create a new felony crime of possession with the intent to commit sexual assault for the commonly known date rape drugs of Rohypnol, GHB and ketamine. This will allow prosecutors to bring felony charges against a perpetrator who has been found in possession of these drugs and has taken steps to use them to facilitate a sexual assault.

Given the difficult nature of prosecuting sexual assault crimes, California should embrace this opportunity to provide serious consequences for criminals looking to use date rape drugs to facilitate a heinous crime. Senate Bill 333 recognizes that date rape drugs can be used as a tool for sexual predators and if they are used for this purpose, there must be a instrument available for prosecutors to charge them accordingly.

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

An attempt is the intent to commit a crime and an affirmative, yet unsuccessful, step towards committing the crime. For the crime to be an attempt, the intended crime would have been committed had some circumstance not intervened. “Mere preparation” towards commission of a crime is not an affirmative step. (People v. Breverman (1998) 19 Cal.4th 142, 154; CALCRIM 406.)

The crime defined in this bill – possession of a specified drug with intent to commit a sexual assault - would allow conviction of defendants who did not go beyond preparation. For example, the defendant told his companions at a bar that he wanted to drug a woman and have sex with her. He talks to the woman for a while and then puts a drug in her drink. Her friends intervene when the defendant tries to get the now extremely intoxicated woman to leave the bar with him. This could be described as preparation to commit a sex crime, not a direct step towards commission of the crime, and thus not an attempt. This conduct would constitute guilt of possession of a drug with intent to commit a sex crime.

3. Difference between Conviction of Possession with Intent to Commit a Sex Crime and Prosecution of a Person Excluded from a Misdemeanor Prosecution under Proposition 47

Defendants with prior sex offenses are excluded from the misdemeanor drug possession provisions in Proposition 47. However, if an excluded defendant’s possession of a drug had a sexual motivation or connection, a simple possession conviction would not reflect that. Even if the prior was a sex offense, there would be nothing about the current conviction indicating a sexual motivation or connection.

In contrast, in a prosecution for possession with intent to commit a sex crime under this bill, the defendant’s prior convictions and misconduct could be used as evidence of his intent in the current case. There are limits on the use of prior convictions as proof of a current crime, but prior convictions are admissible to show a defendant’s intent, motive or knowledge. (People v. Ewoldt (1994) 7 Cal.4th 380, 393–394; CALCRIM 375.) Nevertheless, jurors find prior convictions for a similar offense to the one charged to be very powerful evidence. Evidence of prior convictions is restricted because the evidence is so convincing. The main restriction is that the jury can’t simply find that the prior conviction itself establishes guilt in the current offense. However, as many defendants find – as a practical matter, consideration of a prior conviction or prior bad conduct as proof of intent very often leads to a conviction in the current case.

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

Ketamine is an anesthetic-dissociative drug. It appears to be the drug of choice in pediatric surgery and pediatric emergency pain management, as it blocks the sensation of pain without full unconsciousness and depressed respiration.¹² Ketamine is very widely used in African and other countries with low per-capita income levels, as it is effective, cheap and safe. Greater restrictions of ketamine manufacturing and distribution have caused great alarm in Africa among physicians and public health experts.³

Ketamine has recently been used as an “off label” drug for the treatment of depressions. Patients report that they lose their depressive symptoms quickly and the effect lasts for months.⁴ Clinical trials have been conducted or are underway for use of ketamine as a formally recognized depression treatment. The results of the trials have been remarkably positive.⁵⁶

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

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

Flunitrazepam is a benzodiazepine, the class of sedative-hypnotic drugs that include Xanax, valium, and many others. It was developed in 1965. It has been described as 10 times more potent than Valium, but is typically prescribed in doses that are 1/10^th of that of a common Valium dose. It is not available legally in the United States, but it is available around the world. It is the most widely prescribed drug of its class in Europe.¹⁰ It has been successfully used to treat alcoholics suffering from delirium tremens during withdrawal. Flunitrazepam is very widely used by heroin addicts to boost the effects of the drug without risking overdose, to ease withdrawal.¹¹¹² Studies of drug facilitated sexual assault found examples of women who likely used the drug in connection with opiate addiction or cocaine use. The University of Illinois study described in Comment # 7 noted this use of the drug.

5. Proposition 47

On November 4, 2014, California voters approved Proposition 47 - the Safe Neighborhoods and Schools Act - which reduced penalties for certain offenders convicted of nonserious and nonviolent property and drug crimes. Proposition 47 also allows inmates serving sentences for crimes affected by the reduced penalties to apply to be resentenced. According to the California Secretary of State's web site, 59.6 percent of voters approved Proposition 47. (See <http://elections.cdn.sos.ca.gov/sov/2014-general/pdf/2014-complete-sov.pdf> [as of Mar. 14, 2015].) The purpose of the measure was "to maximize alternatives for nonserious, nonviolent crime, and to invest the savings generated from this act into prevention and support programs in K–12 schools, victim services, and mental health and drug treatment." (Ballot Pamp., Gen. Elec. (Nov. 4, 2014), Text of Proposed Laws, p. 70.) One of the ways the measure created savings was by requiring misdemeanor penalties instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession for personal use, unless the defendant has prior convictions for specified violent crimes. (Ibid.)

Four months into its implementation, Proposition 47 has resulted in fewer inmates in state prisons and county jails. According to the Legislative Analysts' Office (LAO), "As of January 28, 2015, the inmate population in the state's prisons was about 113,500, or 3,600 inmates below the February 2015 cap, and slightly below the final February 2016 cap. The expected impact of Proposition 47 on the prison population will make it easier for the state to remain below the population cap." (LAO, The 2015-16 Budget: Implementation of Proposition 47 (Feb. 2015), p. 10.) The LAO report also found that Proposition 47 will likely reduce the costs of criminal justice for counties, by freeing up jail beds and reducing the time probation departments need to follow prisoners after they are released. (Id., at p. 17.)

6. California Constitutional Limitations on Amending a Voter Initiative

Because Proposition 47 was a voter initiative, the Legislature may not amend the initiative without subsequent voter approval unless the initiative permits such amendment, and then only upon whatever conditions the voters attached to the Legislature's amendatory powers. (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 568; see also Cal. Const., art. II, § 10, subd. (c).) Courts have a duty to jealously guard the people's initiative power and, hence, to apply a liberal construction to this power wherever it is challenged in order that the right to resort to the initiative process is not improperly annulled by a legislative body. (Proposition 103 Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th 1473.) Yet, despite the strict bar on the Legislature's authority to amend initiative statutes, judicial decisions have recognized that the Legislature is not thereby precluded from enacting laws addressing the general subject matter of an initiative. The Legislature remains free to address a "related but distinct area" or a matter that an initiative measure "does not specifically authorize or prohibit." (People v. Kelly (2010) 47 Cal.4th 1008, 1025-1026.)

Proposition 47 states: "This act shall be broadly construed to accomplish its purposes. The provisions of this measure may be amended by a two thirds vote of the members of each house of the Legislature and signed by the Governor so long as the amendments are consistent with and further the intent of this act. The Legislature may by majority vote amend, add, or repeal provisions to further reduce the penalties for any of the offenses addressed by this act." (Ballot Pamp., Gen. Elec. (Nov. 4, 2014), Text of Proposed Laws, p. 74.)

This bill in its original form would have amended Proposition 47's provisions that require misdemeanor penalties for the crime of drug possession for personal use, by allowing felony penalties for the drugs covered by this bill. As amended, this bill does not affect Proposition 47 because this bill no longer deals with simple possession of drug use. Similar to the statutes that require specific intent to sell controlled substances which remain felonies, this bill will require specific intent to commit sexual assault in order to charge a defendant with a felony. Because the bill as amended does not affect Proposition 47, this bill will no longer have to go before the voters.

7. Drug-Facilitated Sexual Assault Statistics

The limited studies on this issue have found that although a person may be surreptitiously drugged with Rohypnol, GHB, or ketamine in order to incapacitate that person, it is much more common for a person to consume these drugs voluntarily for its intoxicating effects.

One study, funded by the National Institute of Justice, examined the prevalence, nature, and reporting of various types of sexual assault experienced by college students. (Krebs, et al., The Campus Sexual Assault Study, National Institute of Justice (Oct. 2007).) The researchers worked with two large, public universities to collect data from over 6,800 undergraduate students (5,466 women and 1,375 men). The data indicated that 7.8% of women were sexually assaulted when they were incapacitated after voluntarily consuming drugs and/or alcohol and 0.6% were sexually assaulted when they were incapacitated after having been given a drug without their knowledge. (Id., at p. iv; see also § 6-1.) The study found that the majority of the sexual assault victims that were incapacitated reported having consumed alcohol (89%) or being intoxicated prior to being assaulted (82%). (Id., § 5.1.3.)

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

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

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

While drug-facilitated sexual assault is a serious problem, these studies confirm that it occurs most often after an individual's own recreational use of drugs, rather than surreptitious drugging by another person. Drugs such as Rohypnol, ketamine and GHB may be used to facilitate sexual assault of an incapacitated person, but these are not the only drugs that can be used, nor are they the most commonly used. The substance that is most commonly found in sexual assault victims is alcohol. (Krebs, The Campus Sexual Assault Study, supra at p. 89; also see Grimes, Alcohol is by far the most dangerous "date rape drug" (Sept. 22, 2014) The Guardian, <http://www.theguardian.com/science/blog/2014/sep/22/alcohol-date-rape-drug-facilitated-sexual-assault-dfsa> [as of Mar. 19, 2015].)

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

8. Proposition 36 of 2000 – the Substance Abuse and Crime Prevention Act (SACPA)

Proposition 36 of 2000 - the Substance Abuse and Crime Prevention Act (SACPA) - requires that drug possessors be offered treatment without jail. Opponents of SACPA argued that defendants who possessed “date rape” drugs would escape punishment and scrutiny. That is, these defendants would have no problem completing drug treatment, since they did not take the drugs themselves. They would never have a positive drug test and they would show no outward signs of being sex offenders. They would have their records cleared – including the arrest – and be free to commit sex crimes without any scrutiny. This problem simply did not happen. It appears that there have been no reports of sexual predators escaping detection and punishment under SACPA in the 15 years since its passage.

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