THIRD READING  

Bill No: AB 484

Author: Jones-Sawyer (D)

Introduced: 2/12/19

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 5-1, 6/4/19

AYES: Skinner, Bradford, Jackson, Mitchell, Wiener

NOES: Morrell

NO VOTE RECORDED: Moorlach

ASSEMBLY FLOOR: 45-28, 4/22/19 - See last page for vote

SUBJECT: Crimes: probation

SOURCE: Author

DIGEST:

This bill makes the imposition of the 180-day confinement condition that is currently required when a defendant is granted probation after being convicted of specified controlled substances offenses permissive rather than mandatory.

ANALYSIS:

Existing law:

1. Requires any person convicted of a specified controlled substance offense relating to the sale of cocaine, cocaine hydrochloride, or heroin, or to the sale or transportation of phencyclidine (PCP), who is eligible for probation and who is granted probation to be confined in the county jail for at least 180 days. Provides that the court may, in an unusual case where the interests of justice would best be served, absolve a person from spending the 180-day sentence in the county jail if the court specifies on the record and enters into the minutes, the circumstances indicating that the interests of justice would best be served by that disposition. (Pen. Code § 1203.076.)
2. Makes it a felony to transport, import, sell, furnish, administer, or give away, or offer to transport, import, sell, furnish, administer, or give away, or attempt to import or transport specified controlled substances, including cocaine and heroin. Provides that these offenses are punishable by imprisonment pursuant to 1170(h) for three, four, or five years. (Health & Saf. Code § 11352.)
3. Makes it a felony to transport, import, sell, furnish, administer, or give away, or offer to transport, import, sell, furnish, administer, or give away, or attempt to import or transport PCP or any of its analogs or precursors unless upon the prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state. Provides that these offenses are punishable by imprisonment pursuant to 1170(h) for three, six, or nine years. (Health & Saf. Code § 11379.5.)
4. Prohibits the granting of probation to any person who is convicted of specified drug offenses, including:
5. Selling or offering to sell 14.25 grams or more of a substance containing heroin;
6. Selling or offering to sell heroin with one or more prior convictions for possession for sale, selling, or offering for sale heroin;
7. Transporting for sale, importing for sale, or administering, or offering to transport for sale, import for sale, or administer, or attempting to import for sale or transport for sale, PCP or any of its analogs or precursors;
8. Selling or offering to sell PCP or any of its analogs or precursors;
9. Manufacturing PCP or any of its analogs or precursors, as specified;
10. Using, soliciting, inducing, encouraging, or intimidating a minor to act as an agent to manufacture or sell any specified controlled substance;
11. Using a minor as an agent or who solicits, induces, encourages, or intimidates a minor with the intent that the minor be in possession of PCP for sale, sells, distributes, or transports PCP, or manufactures PCP or any of its analogs or precursors; and
12. Selling or offering to sell cocaine, cocaine base, or methamphetamine, with one or more prior convictions for possession for sale, sale, or offering for sale cocaine, cocaine base, or methamphetamine. (Pen. Code § 1203.07, subd. (a).)

This bill:

1. Eliminates the 180-day mandatory confinement period for a sentence of probation on convictions relating to the sale of cocaine, cocaine hydrochloride, or heroin.
2. Eliminates the 180-day mandatory confinement period for a sentence of probation on convictions for transporting, importing, selling, furnishing, administering, or giving away, or offering to transport, import, sell, furnish, administer, or give away, or attempting to import or transport, PCP.

Background

Penal Code Section 1203.076 is one of many mandatory minimum sentences that was established during the 1980s and 1990s. Enacted by AB 2418 (Clute, Chapter 1244, Statutes of 1988), Penal Code Section 1203.076 requires a judge to impose six months in the county jail for anyone who is sentenced to probation for certain controlled substance offenses. Specifically, six months of jail must be imposed for anyone who is convicted of selling, attempting to sell, or offering to sell cocaine or heroin, and who is granted probation. Additionally, six months of jail must be imposed for anyone who is convicted of transporting, importing, selling, furnishing, administering, or giving away PCP, or offering or attempting to do any of those things, and who is granted probation.

Under existing law, a person convicted of one of the offenses listed above would be subject to three, four, or five years in county jail for a cocaine- or heroin-related offense, and three, six, or nine years in county jail for a PCP-related offense. However, a judge is authorized to grant probation for these convictions instead of imposing a multiple-year jail term. But, when probation is granted, Penal Code Section 1203.076 requires the judge to simultaneously impose six months in jail. This bill removes the requirement that the judge impose six months in jail, and instead permits the judge to do so in his or her discretion.

Notably, in many cases, defendants convicted of these offenses are ineligible for probation under Penal Code Section 1203.07. Therefore, probation is most likely to be granted in less serious cases.

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

SUPPORT: (Verified 6/4/19)

ACLU of California

Anti-Recidivism Coalition

California Attorneys for Criminal Justice

California Civil Liberties Advocacy

California Public Defenders Association

Drug Policy Alliance

National Association of Social Workers, California Chapter

San Francisco Public Defender’s Office

OPPOSITION: (Verified 6/4/19)

California Police Chiefs Association

California State Sheriffs’ Association

Peace Officers’ Research Association of California

ARGUMENTS IN SUPPORT: The ACLU of California writes:

…AB 484 will reduce unnecessary incarceration and racial disparities in our jail population.

Sentences with limited discretion are ineffective at preventing crime – people who commit crimes often are not aware of potential penalties, and even when they are, are more deterred by the certainty of consequences than they severity. But while these periods of incarceration do not serve a public benefit, they result in extreme harms to the people subjected to them, impacting their inability to support their families, maintain steady employment and housing, and access community-based treatment programs.

AB 484 gives courts the discretion they need to tailor probation conditions to an individual’s risks and needs, ensuring that sentences best serve the interest of justice.

ARGUMENTS IN OPPOSITION: According to the California State Sheriffs’ Association:

Under existing law, a person convicted of specified drug sales offenses and granted probation is required to be sentenced to at least 180 days in county jail as a condition of that probation. Further, existing law permits the court, in the interest of justice, to waive the 180-day confinement condition.

It is not inappropriate to mandate a modest period of custody for persons convicted of selling harmful controlled substances. Current law already allows a judge to relieve an offender of this obligation. We believe existing law strikes the appropriate balance between addressing harmful activity and the exercise of judicial discretion.

ASSEMBLY FLOOR: 45-28, 4/22/19

AYES: Aguiar-Curry, Bauer-Kahan, Berman, Bloom, Bonta, Burke, Calderon, Carrillo, Chau, Chiu, Chu, Cooley, Daly, Eggman, Frazier, Friedman, Gabriel, Cristina Garcia, Gipson, Gloria, Gonzalez, Grayson, Holden, Jones-Sawyer, Kalra, Kamlager-Dove, Levine, Limón, Low, McCarty, Medina, Mullin, Nazarian, Quirk, Reyes, Luz Rivas, Robert Rivas, Blanca Rubio, Santiago, Mark Stone, Ting, Weber, Wicks, Wood, Rendon

NOES: Bigelow, Brough, Cervantes, Chen, Choi, Cooper, Cunningham, Dahle, Diep, Flora, Fong, Gallagher, Gray, Irwin, Kiley, Lackey, Maienschein, Mathis, Mayes, Melendez, Obernolte, Patterson, Quirk-Silva, Ramos, Salas, Smith, Voepel, Waldron

NO VOTE RECORDED: Arambula, Boerner Horvath, Eduardo Garcia, Muratsuchi, O'Donnell, Petrie-Norris, Rodriguez

Prepared by: Stephanie Jordan / PUB. S. /

6/5/19 15:19:08

**** END ****

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2019 - 2020 Regular

Bill No: AB 484 Hearing Date: June 4, 2019

Subject: Crimes: Probation

HISTORY

Source: Author

Prior Legislation: SB 1393 (Mitchell), Ch. 1013, Stats. 2018

SB 1010 (Mitchell), Ch. 749, Stats. 2014

AB 2515 (Donnelly), failed passage on the Assembly Floor in 2014

AB 2492 (Jones-Sawyer), Ch. 819, Stats. 2014

AB 2418 (Clute), Ch. 1244, Stats. 1988

Support: ACLU of California; Anti-Recidivism Coalition; California Attorneys for Criminal Justice; California Civil Liberties Advocacy; California Public Defenders Association; Drug Policy Alliance; National Association of Social Workers, California Chapter; San Francisco Public Defender’s Office

Opposition: California Police Chiefs Association; California State Sheriffs’ Association; Peace Officers’ Research Association of California

Assembly Floor Vote: 45 - 28

PURPOSE

The purpose of this bill is to make the imposition of the 180-day confinement condition that is currently required when a defendant is granted probation after being convicted of furnishing or transporting specified controlled substances permissive rather than mandatory.

Existing law requires any person convicted of a specified controlled substance offense relating to the sale of cocaine, cocaine hydrochloride, or heroin, or to the sale or transportation of phencyclidine (PCP), who is eligible for probation and who is granted probation to be confined in the county jail for at least 180 days. Provides that the court may, in an unusual case where the interests of justice would best be served, absolve a person from spending the 180-day sentence in the county jail if the court specifies on the record and enters into the minutes, the circumstances indicating that the interests of justice would best be served by that disposition. (Pen. Code, § 1203.076.)

Existing law makes it a felony to transport, import, sell, furnish, administer, or give away, or offer to transport, import, sell, furnish, administer, or give away, or attempt to import or transport specified controlled substances, including cocaine and heroin. Provides that these offenses are punishable by imprisonment pursuant to 1170(h) for 3, 4, or 5 years. (Health & Saf. Code, § 11352.)

Existing law makes it a felony to transport, import, sell, furnish, administer, or give away, or offer to transport, import, sell, furnish, administer, or give away, or attempt to import or transport PCP or any of its analogs or precursors unless upon the prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state. Provides that these offenses are punishable by imprisonment pursuant to 1170(h) for 3, 6, or 9 years. (Health & Saf. Code, § 11379.5.)

Existing law prohibits the granting of probation to any person who is convicted of specified drug offenses, including:

• Selling or offering to sell 14.25 grams or more of a substance containing heroin;
• Selling or offering to sell heroin with one or more prior convictions for possession for sale, selling, or offering for sale heroin;
• Transporting for sale, importing for sale, or administering, or offering to transport for sale, import for sale, or administer, or attempting to import for sale or transport for sale, PCP or any of its analogs or precursors;
• Selling or offering to sell PCP or any of its analogs or precursors;
• Manufacturing PCP or any of its analogs or precursors, as specified;
• Using, soliciting, inducing, encouraging, or intimidating a minor to act as an agent to manufacture or sell any specified controlled substance;
• Using a minor as an agent or who solicits, induces, encourages, or intimidates a minor with the intent that the minor be in possession of PCP for sale, sells, distributes, or transports PCP, or manufactures PCP or any of its analogs or precursors; and
• Selling or offering to sell cocaine, cocaine base, or methamphetamine, with one or more prior convictions for possession for sale, sale, or offering for sale cocaine, cocaine base, or methamphetamine. (Pen. Code, § 1203.07, subd. (a).)

This bill eliminates the 180-day mandatory confinement period for a sentence of probation on convictions relating to the sale of cocaine, cocaine hydrochloride, or heroin.

This bill eliminates the 180-day mandatory confinement period for a sentence of probation on convictions for transporting, importing, selling, furnishing, administering, or giving away, or offering to transport, import, sell, furnish, administer, or give away, or attempting to import or transport, PCP.

COMMENTS

1. Need for This Bill

According to the author:

For crimes related to the sale of powder cocaine, cocaine base (crack), heroin, and PCP, California law requires judges to order 180-days in jail as a condition of a person’s probation. These mandatory minimum sentences ignore the circumstances surrounding a case and severely limit a judge’s discretion.

In the 1980s, Congress and numerous state legislatures implemented mandatory minimum sentences as a tool to combat the war on drugs. These policies, among them, the Anti-Drug Abuse Act of 1986, set an overly punitive and inflexible framework for sentencing decisions in drug-related crimes without consideration of the nature of the offense or the background of the individual. As a result, prison systems across the country, including California’s, became increasingly overcrowded, disproportionately affected poor and people of color communities, and expensive to maintain.

[S]ustaining an outdated system costs the state billions of dollars that are better spent on effective, evidence-based rehabilitation programs through community organizations. Studies have found that treatment of drug users was more cost-effective than mandatory sentencing in reducing drug use, sales, and other drug-related crimes. . . .

The rigidness of mandatory minimum sentences comes at a cost to both individuals and the state. Any period of incarceration, irrespective of how long, can affect a person’s ability to maintain steady employment, find housing, and fulfill family obligations. AB 484 does not eliminate a judge’s authority to sentence the 180 days jail time. Instead, it gives judges the discretion they need to operate in the interest of justice and public safety so that the sentences are proportionate to the crime.

1. Effect of This Bill

Penal Code section 1203.076 is one of many mandatory minimum sentences that was established during the 1980s and 1990s. Enacted by AB 2418 (Clute), Chapter 1244, Statutes of 1988, Penal Code section 1203.076 requires a judge to impose six months in the county jail for anyone who is sentenced to probation for certain controlled substance offenses. Specifically, six months of jail must be imposed for anyone who is convicted of selling, attempting to sell, or offering to sell cocaine or heroin, and who is granted probation. Additionally, six months of jail must be imposed for anyone who is convicted of transporting, importing, selling, furnishing, administering, or giving away PCP, or offering or attempting to do any of those things, and who is granted probation.

Under existing law, a person convicted of one of the offenses listed above would be subject to three, four, or five years in county jail for a cocaine- or heroin-related offense, and three, six, or nine years in county jail for a PCP-related offense. However, a judge is authorized to grant probation for these convictions instead of imposing a multiple-year jail term. But, when probation is granted, Penal Code section 1203.076 requires the judge to simultaneously impose six months in jail. This bill would remove the requirement that the judge impose six months in jail, and instead permit the judge to do so in his or her discretion.

Notably, in many cases, defendants convicted of these offenses are ineligible for probation under Penal Code section 1203.07. Therefore, probation is most likely to be granted in less serious cases.

1. Argument in Support

The ACLU of California writes:

…AB 484 will reduce unnecessary incarceration and racial disparities in our jail population.

Sentences with limited discretion are ineffective at preventing crime – people who commit crimes often are not aware of potential penalties, and even when they are, are more deterred by the certainty of consequences than they severity. But while these periods of incarceration do not serve a public benefit, they result in extreme harms to the people subjected to them, impacting their inability to support their families, maintain steady employment and housing, and access community-based treatment programs.

AB 484 gives courts the discretion they need to tailor probation conditions to an individual’s risks and needs, ensuring that sentences best serve the interest of justice.

1. Argument in Opposition

According to the Peace Officers’ Research Association of California:

The California Legislature has rightfully recognized the national opioid and fentanyl epidemic and has worked hard over the past couple of years to implement programs to control the problem. A major reason for the epidemic is due to the access of these opioids on the street by drug dealers who are obtaining the drugs through theft or unethical physicians. To introduce a measure that would lessen the impact on these catalysts to an epidemic is unconscionable when lives are being lost hourly.

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 484

Author:(Jones-Sawyer)

As Introduced Ver:February 12, 2019

Majority vote

SUMMARY:

Eliminates the requirement that the judge make special findings to avoid an otherwise mandatory confinement period of 180 days in the county jail as a required condition for persons sentenced to probation for specified controlled substance offenses.

Major Provisions

1. Eliminates the requirement that a judge make special findings to avoid the otherwise mandatory 180 day confinement period for a sentence of probation on convictions relating to the sale of cocaine, cocaine hydrochloride, or heroin.
2. Eliminates the requirement that a judge make special findings to avoid the otherwise mandatory 180 day confinement period for a sentence of probation on convictions for transport, importing into this state, selling, furnishing, administering, or giving away, or offering to transport, import into this state, sell, furnish, administer, or give away, or attempting to import into this state or transport, phencyclidine (PCP).

COMMENTS:

According to the Author:

"Mandatory minimum sentences are an overly punitive and ineffective approach to reducing drug-related crimes and recidivism rates. AB 484 does not eliminate the option for judges to order 180 days in jail. Instead, it allows the courts to better operate in the interest of justice by creating more flexibility to tailor sentences according to the facts of an individual’s case."

Arguments in Support:

According to the California Public Defenders Association: "CPDA members can attest based on our close relationships with those entangled in the criminal justice system that mandatory minimums do not work to deter or rehabilitate. Mandatory minimums such as the one found in Section 1203.076 of the Penal Code tie the hands of prosecutors and defense attorney’s alike and increase the population in already congested jails and prisons. The passage of AB 484 would be a significant step toward reducing the jail and prison populations for non-violent drug related offenses."

Arguments in Opposition:

Opposition from the California Police Chiefs was withheld on Friday, April 5, 2019.

FISCAL COMMENTS:

Unknown. This bill is keyed non-fiscal by the Legislative Counsel.

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

VOTES:

ASM PUBLIC SAFETY: 6-2-0

YES: Jones-Sawyer, Bauer-Kahan, Kamlager-Dove, Quirk, Santiago, Wicks

NO: Lackey, Diep

UPDATED:

VERSION: February 12, 2019

CONSULTANT: Matthew Fleming / PUB. S. / (916) 319-3744 FN: 0000171

Date of Hearing: March 19, 2019

Counsel: Matthew Fleming

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 484

Author:(Jones-Sawyer) – As Introduced Ver:February 12, 2019

SUMMARY:

Eliminates the mandatory confinement period of 180 days in the county jail as a required condition for persons sentenced to probation for specified controlled substance offenses. Specifically, this bill:

1. Eliminates the 180 day mandatory confinement period for a sentence of probation on convictions relating to the sale of cocaine, cocaine hydrochloride, or heroin.
   
2. Eliminates the 180 day mandatory confinement period for a sentence of probation on convictions for transport, importing into this state, selling, furnishing, administering, or giving away, or offering to transport, import into this state, sell, furnish, administer, or give away, or attempting to import into this state or transport, phencyclidine (PCP).
   

EXISTING LAW:

1. Requires any person convicted of a specified controlled substance offense relating to the sale of cocaine, cocaine hydrochloride, or heroin, or to the sale or transportation of phencyclidine (PCP), who is eligible for probation and who is granted probation to be confined in the county jail for at least 180 days. (Pen. Code § 1203.076.)
   
2. Makes it a felony to transport, import into this state, sell, furnish, administer, or give away, or offer to transport, import into this state, sell, furnish, administer, or give away, or attempt to import into this state or transport any controlled substance, as specified, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, punishable by imprisonment for three, four, or five years. (Health and Saf. Code § 11352.)
   
3. Makes it a felony to transport, import into this state, sell, furnish, administer, or give away, or offer to transport, import into this state, sell, furnish, administer, or give away, or attempt to import into this state or transport phencyclidine or any of its analogs or its unless upon the prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, punishable by imprisonment for a period of three, six, or nine years. (Health and Saf. Code § 11379.5.)
   
4. Prohibits the granting of probation to any person who is convicted of violating the following drug crimes:
   1. Possession for sale of 14.25 grams or more of a substance containing heroin;
   2. Sale of, or offering to sell, 14.25 grams or more of a substance containing of heroin;
   3. Possession for sale, sale, or offering to sell heroin, with one or more prior convictions for those offenses;
   4. Possession for sale of 14.25 grams or more of any salt or solution of phencyclidine (PCP), or any of its analogs or precursors;
   5. Transporting for sale, importing for sale, administering, or offering to transport for sale, import for sale, or administer, or attempt to import for sale or transport for sale, PCP or any of its analogs or precursors;
   6. Sale of, or offering to sell, PCP or any of its analogs or precursors;
   7. Manufacture of PCP or any of its analogs or precursors, as specified;
   8. Using, soliciting, inducing, encouraging, or intimidating a minor to act as an agent to manufacture or sell any specified controlled substance;
   9. Using a minor as an agent or who solicits, induces, encourages, or intimidates a minor with the intent that the minor be in possession of PCP for sale, sells, distributes, or transports PCP, or manufactures PCP or any of its analogs or precursors;
   10. Possession of specified substances, with intent to manufacture PCP or any of its analogs; and,
   11. Possession for sale, sale, or offering to sell cocaine, cocaine base, or methamphetamine, with one or more prior convictions for those offenses. (Pen. Code, § 1203.07, subd. (a).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “Mandatory minimum sentences are an overly punitive and ineffective approach to reducing drug-related crimes and recidivism rates. AB 484 does not eliminate the option for judges to order 180 days in jail. Instead, it allows the courts to better operate in the interest of justice by creating more flexibility to tailor sentences according to the facts of an individual’s case.”
   
2. Mandatory Sentencing in California: In 1994, California passed the “Three Strikes” law. At the time it was enacted, “Three Strikes” established a mandatory sentence of 25 years to life in prison for any defendant convicted of a third felony. The 25 to life sentence was mandatory, leaving no discretion to judges, and requiring them to impose it regardless of whether the third felony was a violent crime or something more benign, such as theft of property.
   
   Many third-strike offenders were serving lengthy prison terms for drug-related felonies. In 2005, ten years after the implementation of Three Strikes, the Legislative Analyst Office (LAO) released a report which found that more than half of the prison population incarcerated under the Three Strikes law were serving sentences for drug and property crimes. (Three Strikes, the Impact After More than a Decade, LAO, October 2005, at page 16-17, available at: https://lao.ca.gov/2005/3_Strikes/3_strikes_102005.pdf, [as of March 11, 2019].) The Report also suggested that Three Strikes may have had less of an impact on public safety than originally projected. (Id. at 34.).
   

As originally enacted, Three Strikes produced some appalling results. Shane Taylor, for example, was given a third strike and a sentence of 25 years to life for possessing less than $10 worth of drugs. (Chinn, Three Strikes of Injustice, California Innocence Project, October 11, 2012, available at: https://californiainnocenceproject.org/2012/10/three-strikes-of-injustice/, [as of March 14, 2019].) Leandro Andrade was a nine-year army veteran and father of three young children. He was convicted of two theft offenses for stealing children’s videotapes from two different department stores. (Chemerinsky, Cruel and Unusual: the Story of Leandro Andrade, 52 Drake L. Rev. 1, 1995, at page 1-2, available at: https://scholarship.law.duke.edu/cgi/viewcontent.cgi?httpsredir=1&article=2404&context=faculty_scholarship, [as of March 12, 2019].) The total cost of the videotapes that Andrade stole was about $150. (Id.) Nonetheless, Andrade was charged with two felonies because he had committed several nonviolent property felony offenses 12 years prior to the theft of the videotapes. (Id. at 2.) As a result of the Three Strikes law, Andrade was sentenced to two consecutive terms of 25 years to life in prison, making him ineligible for parole for 50 years. (Id. at 3.) The father of three was 37 at the time of his offense and would not even be eligible for parole until he turned 87. (Id.) The United States Supreme Court affirmed the sentence. (Lockyer v. Andrade (2003) 538 U.S. 63.)

1. Criminal Justice Reform in California: Due in part to cases like Taylor’s and Andrade’s, Three Strikes and other mandatory sentencing schemes, and long prison sentences in general, began to fall out of favor. Beginning in 2011, with AB 109 (“Realignment”), California began a series of reforms aimed at reducing the state’s reliance on imprisonment as punishment for criminal offenses. Realignment, among other things, restructured the State's sentencing procedure such that many felony offenses resulted in jail time rather than prison sentences. In 2012, Californians voted to enact Proposition 36, which revised the Three Strikes law so that mandatory life sentences would only be imposed for “violent” or “serious” felonies. In 2014, voters approved Proposition 47, which reclassified numerous drug and property crimes that had previously been felonies, as misdemeanors. Data from the Public Policy Institute of California (PPIC) indicates that crimes rates have continued to go down after these legislative reforms. (Crime Trends in California, PPIC, available at: https://www.ppic.org/publication/crime-trends-in-california/ [as of March 14, 2019].)
   
   (Id.)
   

1. This Bill Restores Judicial Discretion and Eliminates a Mandatory Sentence: Penal Code section 1203.076 requires a judge to impose six months in the county jail for anyone who is sentenced to probation on specified controlled substance offenses. Section 1203.76 was enacted in 1988, and specifically applies anyone who is convicted of a sales offense relating to cocaine, or heroin, or anyone who is convicted of transporting, importing into this state, selling, furnishing, administering, or giving away, or offering or attempting to do any of those things, in a PCP case.
   
   Under existing law, a person convicted of one of the offenses listed above would typically serve either three, four or five years in county jail for a cocaine or heroin offense, or three, six, or nine years in county jail for a PCP offense. However, under California’s determinate sentence law a judge can, in limited circumstances, consider granting probation for these convictions instead of imposing a multiple-year jail term. When a judge does so, Penal Code Section 1203.076 requires the judge to simultaneously impose six months in jail. This bill would remove the requirement that the judge impose six months in jail, and instead permit the judge to do so in his or her discretion.
   
   It should be noted that in many cases, defendants convicted of these offenses will not be eligible for probation pursuant to Penal Code Section 1203.07. Therefore, probation is only likely to be granted in less-serious cases that involve compelling mitigating circumstances. Furthermore, some of the offenses to which this mandatory confinement period currently apply do not require that a person actually engage in the sale, distribution, transportation, etc. of a controlled substance, and instead criminalize the mere offer or attempt to do so.
   
2. Argument in Support: According to the California Public Defender’s Association: “CPDA members can attest based on our close relationships with those entangled in the criminal justice system that mandatory minimums do not work to deter or rehabilitate. Mandatory minimums such as the one found in Section 1203.076 of the Penal Code tie the hands of prosecutors and defense attorney’s alike and increase the population in already congested jails and prisons. The passage of AB 484 would be a significant step toward reducing the jail and prison populations for non-violent drug related offenses.”
   
3. Related Legislation: AB 607 (Carillo) would authorize the court to grant probation for specified drug offenses which are currently either ineligible or presumptively ineligible for probation, except in cases where a minor is used as an agent, in which case probation is prohibited. AB 607 is set for hearing on March 19^th in the Assembly Public Safety Committee.
   
4. Prior Legislation:
   
   1. SB 1393 (Mitchell) Chapter 1013, Statutes of 2018, allowed a judge discretion to strike a prior serious felony conviction, in furtherance of justice, to avoid the imposition of a five-year prison enhancement when the defendant has been convicted on a serious felony.
      
   2. AB 2492 (Jones-Sawyer) Chapter 819, Statutes of 2014 eliminated the requirement that a person convicted of using or being under the influence of specified controlled substances serve at least 90 days in a county jail.
      
   3. SB 1010 (Mitchell) Chapter 749, Statutes of 2014, provided that the penalty for possession for sale of cocaine base shall be the same as that for possession for sale of cocaine hydrochloride powder cocaine.
      
   4. AB 109 (Committee on Budget) Chapter 15, Statutes of 2011, enacted criminal justice “realignment,” among other things, restructured the State's sentencing procedure such that many felony offenses resulted in jail time rather than prison sentences.
      

REGISTERED SUPPORT / OPPOSITION:

Support

American Civil Liberties Union of California

California Attorneys for Criminal Justice

California Public Defenders Association

San Francisco Public Defender's Office

Opposition

None

Analysis Prepared by:

Matthew Fleming / PUB. S. / (916) 319-3744