Existing law makes it a felony for a person to, among other things, manufacture, convert, or produce a controlled substance, and to possess specified chemicals with the intent to manufacture a controlled substance, as specified. Existing law imposes a sentencing enhancement for a conviction of these crimes if they involve methamphetamine or phencyclidine and the commission of the crime occurs in a structure where a child under 16 years of age is present or causes a child under 16 years of age to suffer great bodily injury, as specified.

This bill would additionally authorize this sentencing enhancement to be applied for a conviction of these crimes if they involve concentrated cannabis and the commission of the crime occurs in a structure where a child under 16 years of age is present or causes a child under 16 years of age to suffer great bodily injury, as specified. By creating a new sentencing enhancement, this bill would impose a state-mandated local program.

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

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

Date of Hearing: April 23, 2024

Counsel: Liah Burnley

ASSEMBLY COMMITTEE ON

Kevin McCarty, Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY:

Adds “concentrated cannabis” to the existing sentence enhancement applicable when a person is convicted of manufacturing a controlled substance and any child under 16 is present, punishable by an additional and consecutive term of two years in state prison, or an additional term of five years in the state prison if any child under 16 suffers great bodily injury.

EXISTING LAW:

1. Makes it a crime to manufacture any controlled substance, as specified. This offense if a felony, punishable by imprisonment in the county jail for a period of three, five, or seven years and by a fine not exceeding $50,000. (Health & Safe. Code, § 11379.6, subd. (a).)
   
2. Provides that concentrated cannabis is a controlled substance. (Health & Safe. Code, § 11007.)
   
3. Provides that using a volatile solvent to chemically extract concentrated cannabis within 300 feet of an occupied residence or any structure where another person was present at the time the offense was committed may be considered a factor in aggravation by the sentencing court. (Health & Safe. Code, § 11379.6, subd. (d).)
4. Provides that a person convicted of, or convicted of an attempt to, manufacture methamphetamine or phencyclidine (PCP), when the crime occurs in a structure where any child under 16 present, shall, in addition and consecutive to the punishment prescribed for the felony, be punished by an additional term of two years in the state prison. (Health & Safe. Code, § 11379.7, subd. (a).)
   
5. Provides that a person convicted of, or convicted of an attempt to, manufacture methamphetamine or PCP, when the crime causes a child under 16 to suffer great bodily injury, shall, in addition and consecutive to the punishment prescribed for the felony, be punished by an additional term of five years in the state prison. (Health & Safe. Code, § 11379.7, subd. (b).)
   
6. Defines “structure” as a  house, apartment building, shop, warehouse, barn, building, vessel, railroad car, cargo container, motor vehicle, housecar, trailer, trailer coach, camper, mine, floating home, or other enclosed structure capable of holding a child and manufacturing equipment. (Health & Safe. Code, § 11379.7, subd. (c).)
   
7. Defines “great bodily injury” has the same meaning as defined in of the Penal Code. (Health & Safe. Code, § 11379.7, subd. (d); Pen. Code, § 12022.7.)
   
8. Defines “Concentrated cannabis” as the separated resin, whether crude or purified, obtained from cannabis. (Health & Safe. Code, § 11006.5.)
   
9. Provides that it is lawful for persons 21 or older to possess, process, transport, purchase, obtain or give away to persons 21 or older not more than eight grams of cannabis in the form of concentrated cannabis. (Health & Safe. Code, § 1136.21.)
   
10. Makes it a crime to possess more than eight grams of concentrated cannabis. This offense is a misdemeanor, punishable by imprisonment in a county jail for a period of not more than six months or by a $500 fine, or by both. (Health & Safe. Code, § 11357.)
11. Makes it a crime for any person over 18 to import, offer to import, or attempt to import into this state or transport for sale, offer to transport for sale, or attempt to transport for sale out of this state more than four grams of concentrated cannabis. This offense is a felony, punishable by imprisonment in county jail for a period of two, three or four years. (Health & Safe. Code, § 11360, subd. (a)(3)(D).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “In February 2022, a father illicitly manufacturing concentrated cannabis, or “butane honey oil,” in a Stockton hotel room with his three-month-old baby and the baby’s mother present suffered severe burns when the lab exploded, as is wont to occur with such volatile manufacturing operations. The mother threw herself over the baby, thus absorbing the injuries that otherwise likely would have occurred to the child.

“Because Health and Safety Code section 11379.7 only applies to illicit methamphetamine and PCP labs, prosecutors were unable to enhance the manufacturing charge with the allegation that a child under 16 was in the structure. This meant that this child was not given the same dignity and protection under the law as children in meth and PCP labs, even though the latter labs are not found as frequently in California as are BHO labs since the tightening of regulations on methamphetamine precursors.

“This bill would treat offenders who endanger children by manufacturing concentrated cannabis indoors with minors under 16 present the same as those who commit similar crimes but with methamphetamine or PCP. Such is appropriate under the law, given the similar outcomes for those in the structures who have to breathe the noxious fumes or suffer the horrific burns and other damages from explosions.”

1. Effect of this Bill: “Concentrated cannabis” is the separated resin (whether crude or purified) obtained from the marijuana plant. It is commonly referred to as “hashish” or “hash,” “resin,” “honey oil,” “rosin,” or “wax.” It is legal in California for adults age 21 and older to use and possess up to 8 grams of concentrated cannabis due to the passage of Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act (AUMA). Proposition 64 was adopted by the voters on November 8, 2016, and became effective the following day. Proposition 64 made several major changes including decriminalizing the possession of up to one ounce of cannabis, and up to 8 grams of cannabis concentrates and created a statutory framework to regulate the cultivation, distribution, sale and tax of cannabis products, including concentrated cannabis. Possession of more than eight grams of concentrated cannabis for personal use (“simple possession”) is a misdemeanor. (Health & Safe. Code, § 11357.)

Unlawful manufacture of concentrated cannabis is generally a misdemeanor. (Health & Safe. Code, § 113585.) However, if chemical extraction is used to manufacture concentrated cannabis, the offence is a felony, punishable by three, five, or seven years in state prison, and/or a $50,000 fine. (Health & Safe. Code, § 11379.6.) If the offense involving the use of a chemical to extract concentrated cannabis occurred within 300 feet of an occupied residence or any structure where another person was present at the time the offense was committed may be considered a factor in aggravation by the sentencing court. (Health & Safe. Code, § 11379.6, subd. (d).)

Under existing law, there is a sentence enhancement of an additional term of two years in the state prison for a person who is convicted of manufacturing methamphetamine or PCP using chemical extraction, when the commission or attempted commission of the crime occurs in a structure where any child under 16 years of age is present. The enhancement is an additional five-year if the commission causes a child under 16 to suffer great bodily injury. (Health & Safe. Code, § 11379.7.) This bill would add concentrated cannabis to this enhancement.

Given the existing provision allowing the location of the offense occurring within 300 feet of an occupied structure to be considered an aggravating factor, this bill would add additional time to an already significant sentence. Notably, there is no requirement on the amount of concentrated cannabis being manufactured and there is no requirement that the substance is being manufactured to sell. A person could be convicted of this offence and subject to the enhancement even if they are manufacturing a small quantity for personal use.

Proponents of this bill claim, “the law should be updated to adequately protect our children and distinguish between those perpetrators who clearly put children in harm’s way when manufacturing.” However, existing law is sufficient. Under Penal Code section 12022.7, any person who inflicts great bodily injury on any person, including a child, in the commission of a felony or attempted felony, such as manufacturing concentrated cannabis with a volatile chemical, shall be punished by an additional and consecutive term of imprisonment in the state prison for three years. Any person who personally inflicts great bodily injury on a child under the age of five years in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for four, five, or six years. Under existing law, a person who harms a child when manufacturing concentrated cannabis, could already receive a sentence of up to 13 years in state prison. Accordingly, this bill is not necessary.

Proponents also point to a February 2022 incident in Stockton, where parents of an infant child were allegedly manufacturing concentrated cannabis in a motel room and the lab exploded. What the proponents fail to point out, is that the mother was booked on charges of manufacturing a controlled substance and willful cruelty to a child and the child was released to the care of social services.^[1] The penalties for willful cruelty to a child can range from one year in county jail or up to four years in state prison. (Pen. Code, § 273a.)

1. Sentence Enhancements: Sentence enhancements add time to an individual’s base sentence. California uses over 100 unique enhancements. According to data from California Department of Corrections and Rehabilitation (CDCR), enhancements are more likely to impact the sentences of men and Black and American Indian people who are sentenced to prison, application varies by county, and that enhancements contribute to the overall size of the state prison population.^[2]
   
   Sentence enhancements are typically applied at the discretion of both prosecutors and judges, and the threat of an enhancement can play an important role in the plea-bargaining process. Subject to prosecutorial discretion, enhancements can be used during the plea bargain phase to potentially cajole low-income defendants into admitting guilt in weak cases and accepting unjustly long sentences.^[3]
   
   In 2021, the California Commission on Revision of the Penal Code made three recommendations on sentence enhancements that were signed into law. AB 333 (Kamlager), Chapter 699, Statues of 2021, made updates to the gang enhancements which narrowed the definition of gang involvement. SB 483 (Allen), Chapter 728, Statutes of 2022, built on legislation repealing one- and three-year enhancements for prior convictions and applied the repeal to people who were incarcerated and had the enhancements as part of their sentences. Finally, SB 81 (Skinner) Chapter 721, Statutes of 2021, provided guidance to judges that allowed them discretion in whether to dismiss sentence enhancements, unless in the judge’s perspective, not enhancing a sentence could endanger public safety. Still, there are hundreds of sentencing enhancements available to prosecutors in California. By expanding a sentence enhancement, this bill would be a step in opposite direction taken by the Legislature in recent years.
   
2. Long Sentences Do Not Deter Crime: under this bill, a person could be serve a term of imprisonment in state prison for up to 13 years for manufacturing any amount of concentrated cannabis. Unduly long sentences, like those proposed by this bill, are counterproductive for public safety and contribute to the dynamic of diminishing returns as the incarcerated population expands.^[4]Increasingly punitive sentences add little to the deterrent effect of the criminal justice system; and mass incarceration diverts resources from program and policy initiatives that hold the potential for greater impact on public safety. (Ibid.)
   
   Research shows that increasing the severity of the punishment does little to deter the crime. According to the National Institute of Justice, laws and policies designed to deter crime by focusing mainly on increasing the severity of punishment are ineffective partly because criminals know little about the sanctions for specific crimes. More severe punishments do not “chasten” individuals convicted of crimes, and prisons may exacerbate recidivism. Studies show that for most individuals convicted of a crime, short to moderate prison sentences may be a deterrent but longer prison terms produce only a limited deterrent effect. In addition, the crime prevention benefit falls far short of the social and economic costs.^[5]
   

This finding makes intuitive sense. Consider a person who is thinking about stealing a car or burglarizing a local business. If he is thinking rationally, he will take into account a variety of factors when considering how to commit the crime, including time of day, ease of entry, presence of security personnel or technology, or his ability to leave the crime scene. He does this to avoid being caught in the act because being arrested and prosecuted will impose significant burdens on him. Additionally, because he is not planning on being apprehended, he is unlikely to be thinking about how much time he might spend in prison and whether his sentence will be three, five, or seven years.

Notably, this example looks at the behavior of a rational person, which rarely fits the picture of a substantial portion of those who actually commit a crime. Many are teenagers seeking peer approval for their illegal behavior, individuals under the influence of alcohol or drugs at the time of the offense, or are motivated by economic challenges. Many of these individuals are not even thinking about the risk of being caught, let alone know how much prison time they may face.

The limited impact of extending sentence length becomes even more attenuated for long-term incarceration. If the penalty for a second robbery conviction is twenty years and a legislative body increases that penalty to twenty- five, few would-be robbers undeterred by the prospect of “only” a twenty year sentence would balk at an additional five years.

Again, there are multiple possible reasons for imposing a given prison term, depending on the circumstances of the crime. But policymakers and judges should be cognizant of the evidence to support any particular goal of sentencing. If the length of a prison term has little deterrent value, it may be time to forego the rationale of “sending a message.”^[6]           

An analysis of 116 studies showed that incarceration does not deter people from committing future crimes and, in fact, incarceration can actually make someone more likely to be arrested and commit crimes later (due to heightened barriers to securing employment, identification, housing, and other basic services necessary to successfully reenter society).^[7] These findings are consistent with other research from national institutions of renown.^[8]

Not only would the incarceration provided for in this bill fail to deter crime, it would come at a significant expense to the State. According to the Legislative Analyst’s Office (LAO), it costs taxpayers $106,131 to incarcerate a person in state prison for one year.^[9]

This bill could increase a term of imprisonment for manufacturing concentrated cannabis by an additional two to five years in state prison. Could money spent to incarcerate a person be better spent on strategies proven to deter crime?

1. Argument in Support: According the California District Attorneys Association (CDAA), “Health and Safety Code section 11379.7 is already on the books to provide protection for children, giving additional penalties to those who manufacture methamphetamine and PCP in a structure with a child under 16 present. This is because of the known and extreme volatility of the manufacturing process involving those substances, and because children have indeed been harmed and even killed during such clandestine lab explosions.

“An anachronism exists within the current law, however, in that it fails to list concentrated cannabis as one of the controlled substances for which additional penalties are triggered when its clandestine manufacture is done in a structure with a minor present. Indeed, so-called “BHO labs” or concentrated cannabis labs are more frequent in California than are meth labs and PCP labs these days, yet present just as much danger due to their volatility. Gigantic explosions can and indeed do occur with the illicit manufacture of concentrated cannabis, and the law should be updated to adequately protect our children and distinguish between those perpetrators who clearly put children in harm’s way when manufacturing.

“In February 2022 in Stockton, a mother and father of a newborn baby were in a motel room when the “BHO lab” (concentrated cannabis lab) the father was running exploded. This resulted in major structure damage to the motel, as well as devastating injuries to the father. The mother received injuries as well as she threw herself across the three-month-old infant to protect the baby.”

1. Argument in Opposition: According to California NORML, “One of the sections the bill seeks to amend, H&SC §11379.6, already provides for a sentence of up to seven years for the manufacture of cannabis using volatile solvents. According to attorneys on our legal committee, this section has been used to "re-felonize" cannabis, arguably in opposition to the intent of Proposition 64, the voter-approved measure that legalized cannabis for adult recreational use in 2016.
   
   “In addition, the current statute is being abused to felonize simple ethanol (rubbing alcohol) extractions even though DCC regulations consider ethanol “nonvolatile.” There have also been cases where Californians have been convicted under this statute for using carbon dioxide to extract cannabis, another safe and nonvolatile method.
   
   “The history of the statutes AB 2296 would amend reveals they were aimed at labs manufacturing methamphetamine and PCP, both of them much more dangerous drugs than cannabis.  Given this, and the history of how H&SC §11379.6 has been enforced, we must oppose any sentencing enhancements to these statutes.
   
   “In general, ratcheting up sentences is not an effective way to deter crimes, particularly drug crimes. Offenders are rarely aware of what kind of sentences they might face until after they are arrested. Not a single minor is likely to be protected by AB 2296. The only likely effect of AB 2296 will be to raise the costs of imprisonment to the state.
   
   “The legislature would do better to focus on lowering barriers to entry for licensed cannabis manufacturing, and reducing the over taxation and regulation of the cannabis market that has sent Californians back to the illicit market to meet their needs for medical cannabis, or exercise their right as adults to use it for recreational purposes.”
   
2. Related Legislation:
   
   1. AB 2846 (Lackey) would expand the list of unlawful substances classified as “synthetic cannabinoid compound.” AB 2846 is pending in this Committee.
      
   2. AB 2850 (Rodriguez) would make it a felony, punishable by 16 months or 2 or 3 years in county jail, for a person over 18 years of age, but under 21 years of age to plant, cultivate, harvest, dry, or process any quantity of living cannabis plants. AB 2850 is pending in this Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

Arcadia Police Officers' Association
Burbank Police Officers' Association
California District Attorneys Association
California Police Chiefs Association
California Reserve Peace Officers Association
California State Sheriffs' Association
Claremont Police Officers Association
Corona Police Officers Association
Culver City Police Officers' Association
Deputy Sheriffs' Association of Monterey County
Fullerton Police Officers' Association
Murrieta Police Officers' Association
Newport Beach Police Association
Novato Police Officers Association
Palos Verdes Police Officers Association
Placer County Deputy Sheriffs' Assocation
Pomona Police Officers' Association
Riverside Police Officers Association
Riverside Sheriffs' Association
Santa Ana Police Officers Association
Upland Police Officers Association

Oppose

ACLU California Action
California Alliance for Youth and Community Justice
California Attorneys for Criminal Justice
California for Safety and Justice
California Norml
California Public Defenders Association
Californians United for A Responsible Budget
Communities United for Restorative Youth Justice (CURYJ)
Drug Policy Alliance
Felony Murder Elimination Project
Initiate Justice
Initiate Justice Action
Legal Services for Prisoners With Children
San Francisco Public Defender
Silicon Valley De-bug
Team Justice
Uncommon Law
Vera Institute of Justice
Young Women's Freedom Center

Analysis Prepared by:

1. ABC News, Butane honey oil lab explosion at Stockton hotel injures 2, deputies say. Available at: <https://www.abc10.com/article/news/local/stockton/explosion-stockton-people-injured/103-16ac92ab-bb6a-4b4a-8087-da412837b64d>; CBS News, Sheriff: Butane Honey Oil Lab Caused Explosion At Stockton Motel. Available at: <https://www.cbsnews.com/gooddaysacramento/news/stockton-san-joaquin-co-e-waterloo-road-explosion/>. ↑

2. Committee on Revision of the Penal Code, Sentence Enhancements in California (2023). Available at: <https://www.capolicylab.org/wp-content/uploads/2023/03/Sentence-Enhancements-in-California.pdf>. ↑

3. Bureau of Justice Assistance, US Department of Justice (2011) Plea and Charge Bargaining Research Summary (2011). Available at: <https://bja.‌ojp.gov/sites/‌g/files/xyckuh186/‌files/ media/document/PleaBargainingResearchSummary.pdf>. ↑

4. Long-Term Sentences: Time to Reconsider the Scale of Punishment, 87 UMKC L. Rev., 1 (Nov. 5, 2018). ↑

5. National Institute of Justice, Five Things about Deterrence <https://www.ojp.gov/pdffiles1/nij/247350.pdf>. ↑

6. Long-Term Sentences: Time to Reconsider the Scale of Punishment, 87 UMKC L. Rev., 1 (Nov. 5, 2018) (citations omitted). ↑

7. Brookings, Retail Theft In US Cities: Separating Fact from Fiction (March 6, 2024). Available at: <https://www.brookings.edu/articles/retail-theft-in-us-cities-separating-fact-from-fiction/>. ↑

8. National Research Council of the National Academies of Sciences, Engineering, and Medicine, The Growth of Incarceration in the United States: Exploring Causes and Consequences, (April 2014) at pp. 130 -150. Available at: <https://‌academic‌works.‌cuny.edu/cgi/‌viewcontent.cgi?‌article=1026&‌context=‌jj_‌pubs>. ↑

9. LAO, How Much Does it Cost to Incarcerate an Inmate? (2022). Available at <https://lao.ca.gov/policyareas/cj/6_cj_inmatecost>. ↑