Prior law, in effect until January 1, 2020, required a sentencing court to impose an additional one-year term for each prior separate prison term or county jail felony term served by the defendant for a nonviolent felony, as specified. Prior law, in effect until January 1, 2018, also required a sentencing court to impose on a defendant convicted of specified crimes relating to controlled substances, an additional 3-year term for each prior conviction of specified controlled substances crimes. Existing law limits the imposition of these sentencing enhancements to certain specified circumstances.

Existing law invalidates any enhancement imposed pursuant to one of these prior provisions and requires the sentencing court, upon receipt of notice and verification of specified information, to recall the sentence and resentence the person to remove any invalid sentence enhancements.

This bill would, commencing January 1, 2025, make an individual sentenced to death or a term of life without the possibility of parole, who has been convicted of a sexually violent offense, and who, as of January 1, 2025, has not had their judgment reviewed and verified by the sentencing court, as specified, ineligible for recall and resentencing under these provisions.

Prior law, in effect until January 1, 2020, required a sentencing court to impose an additional one-year term for each prior separate prison term or county jail felony term served by the defendant for a nonviolent felony, as specified. Prior law, in effect until January 1, 2018, also required a sentencing court to impose on a defendant convicted of specified crimes relating to controlled substances, an additional 3-year term for each prior conviction of specified controlled substances crimes. Existing law limits the imposition of these sentencing enhancements to certain specified circumstances.

Existing law invalidates any enhancement imposed pursuant to one of these prior provisions and requires the sentencing court, upon receipt of notice and verification of specified information, to recall the sentence and resentence the person to remove any invalid sentence enhancements.

This bill would, commencing January 1, 2025, make an individual sentenced to death or a term of life without the possibility of parole, who has been convicted of a sexually violent offense, and who, as of January 1, 2025, has not had their judgment reviewed and verified by the sentencing court, as specified, ineligible for recall and resentencing under these provisions.

Prior law, in effect until January 1, 2020, required a sentencing court to impose an additional one-year term for each prior separate prison term or county jail felony term served by the defendant for a nonviolent felony, as specified. Prior law, in effect until January 1, 2018, also required a sentencing court to impose on a defendant convicted of specified crimes relating to controlled substances, an additional 3-year term for each prior conviction of specified controlled substances crimes. Existing law limits the imposition of these sentencing enhancements to certain specified circumstances.

Existing law invalidates any enhancement imposed pursuant to one of these prior provisions and requires the sentencing court, upon receipt of notice and verification of specified information, to recall the sentence and resentence the person to remove any invalid sentence enhancements.

This bill would, commencing January 1, 2025, make an individual sentenced to death or a term of life without the possibility of parole, who has been convicted of a sexually violent offense, and who, as of January 1, 2025, has not had their judgment reviewed and verified by the sentencing court, as specified, ineligible for recall and resentencing under these provisions.

Prior law, in effect until January 1, 2020, required a sentencing court to impose an additional one-year term for each prior separate prison term or county jail felony term served by the defendant for a nonviolent felony, as specified. Prior law, in effect until January 1, 2018, also required a sentencing court to impose on a defendant convicted of specified crimes relating to controlled substances, an additional 3-year term for each prior conviction of specified controlled substances crimes. Existing law limits the imposition of these sentencing enhancements to certain specified circumstances.

Existing law invalidates any enhancement imposed pursuant to one of these prior provisions and requires the sentencing court, upon receipt of notice and verification of specified information, to recall the sentence and resentence the person to remove any invalid sentence enhancements.

Existing law, the Control, Regulate and Tax Adult Use of Marijuana Act (AUMA), an initiative measure, authorizes a person who obtains a state license under AUMA to engage in commercial adult-use cannabis activity pursuant to that license and applicable local ordinances. The Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA), among other things, consolidates the licensure and regulation of commercial medicinal and adult-use cannabis activities, including retail commercial cannabis activity. MAUCRSA establishes the Department of Cannabis Control within the Business, Consumer Services, and Housing Agency to administer the act.

MAUCRSA does not supersede or limit the authority of a local jurisdiction to adopt and enforce local ordinances to regulate commercial cannabis businesses within that local jurisdiction. Existing law authorizes a local jurisdiction to allow for the smoking, vaporizing, and ingesting of cannabis or cannabis products on the premises of a licensed retailer or microbusiness, subject to specified restrictions. Existing administrative law specifies that a licensed retailer or licensed microbusiness authorized for retail sales who operates a consumption area on the licensed premises in accordance with this provision may also sell prepackaged, noncannabis-infused, nonalcoholic food and beverages if the applicable local jurisdiction allows.

This bill, subject to the specified restrictions referenced above, would authorize a local jurisdiction to allow for the preparation or sale of noncannabis food or beverage products, as specified, by a licensed retailer or microbusiness in the area where the consumption of cannabis is allowed. The bill would authorize a local jurisdiction to allow for the sale of prepackaged, noncannabis-infused, nonalcoholic food and beverages by a licensed retailer.

Existing law, the Control, Regulate and Tax Adult Use of Marijuana Act (AUMA), an initiative measure, authorizes a person who obtains a state license under AUMA to engage in commercial adult-use cannabis activity pursuant to that license and applicable local ordinances. The Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA), among other things, consolidates the licensure and regulation of commercial medicinal and adult-use cannabis activities, including retail commercial cannabis activity. MAUCRSA establishes the Department of Cannabis Control within the Business, Consumer Services, and Housing Agency to administer the act.

MAUCRSA does not supersede or limit the authority of a local jurisdiction to adopt and enforce local ordinances to regulate commercial cannabis businesses within that local jurisdiction. Existing law authorizes a local jurisdiction to allow for the smoking, vaporizing, and ingesting of cannabis or cannabis products on the premises of a licensed retailer or microbusiness, subject to specified restrictions. Existing administrative law specifies that a licensed retailer or licensed microbusiness authorized for retail sales who operates a consumption area on the licensed premises in accordance with this provision may also sell prepackaged, noncannabis-infused, nonalcoholic food and beverages if the applicable local jurisdiction allows.

This bill, subject to the specified restrictions referenced above, would authorize a local jurisdiction to allow for the preparation or sale of noncannabis food or beverage products, as specified, by a licensed retailer or microbusiness in the area where the consumption of cannabis is allowed.

 UNFINISHED BUSINESS  

Bill No: SB 285

Author: Allen (D)

Amended: 8/19/24

Vote: 21

PRIOR VOTES NOT RELEVANT

PURSUANT TO SR 29.10

SENATE PUBLIC SAFETY COMMITTEE: 5-0, 8/28/24

AYES: Wahab, Seyarto, Bradford, Skinner, Wiener

ASSEMBLY FLOOR: 71-1, 8/26/24 - See last page for vote

SUBJECT: Criminal procedure: sentencing

SOURCE: Author

DIGEST:

This bill provides that an individual who has been convicted of a sexually violent offense and sentenced to death or a term of life without the possibility of parole ("LWOP"), and whose term includes certain specified legally invalid enhancements, is not eligible for certain resentencing.

Assembly Amendments

delete the Senate version of the bill and add language regarding criminal resentencing procedures.

ANALYSIS:

Existing law:

1. States that any sentence enhancement received prior to January 1, 2018, imposing on a defendant convicted of specified crimes related to controlled substances, an additional three-year term for each prior conviction of specified crimes related to controlled is legally invalid, except if the enhancement was imposed for a prior conviction of using a minor in the commission of offenses involving specified controlled substance. (Pen. Code, § 1172.7, subd. (a).)
2. States that any sentence enhancement received prior to January 1, 2020, imposing an additional one-year term of imprisonment for each prior prison or county jail felony term served by the defendant for a non-violent felony is legally invalid, except if the enhancement was for a prior conviction of a sexually violent offense. (Pen. Code, § 1172.75, subd. (a).)
3. Requires the Secretary of the Department of Corrections and Rehabilitation (CDCR) and the county correctional administrator of each county to identify those persons in their custody currently serving a term for judgment that includes one of the repealed enhancements and to provide the name of each person, along with the person’s date of birth and relevant case number or docket number, to the sentencing court that imposed the enhancement. This information shall be provided as follows:
   1. By March 1, 2022, for individuals who have served their base term and any other enhancement and are currently serving a sentence based on the enhancement. For purposes of this paragraph, all other enhancements shall be considered to have been served first; and,
   2. By July 1, 2022, for all other individuals. (Pen. Code, §§ 1172.7, 1172.75, subds. (b).)
4. States that upon receiving that information, the court shall review the judgment and verify that the current judgement includes one of the repealed enhancements and the court shall recall the sentence and resentence the defendant. The review and resentencing shall be completed as follows:
   1. By October 1, 2022, for individuals who have served their base term and any other enhancement and are currently serving a sentence based on the enhancement; and,
   2. By December 31, 2023, for all other individuals. (Pen. Code, §§ 1172.7, 1172.75, subds. (c).
5. States that the above resentencing shall result in a lesser sentence than the one originally imposed, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. (Pen. Code, §§ 1172.7, 1172.75, subds. (d)(1).)
6. Provides that the above resentencing shall not result in a longer sentence than originally imposed. (Ibid.)
7. States that the court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing. (Pen. Code, §§ 1172.7, 1172.75, subds. (d)(2).)
8. Allows a court to consider post-conviction factors at resentencing, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice. (Pen. Code, §§ 1172.7, 1172.75, subds. (d)(3).)
9. Provides that unless the court originally imposed the upper term, the court may not impose a sentence exceeding the middle term unless there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and those facts have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. (Pen. Code, §§ 1172.7, 1172.75, subds. (d)(4).)
10. Provides that unless the court originally imposed the upper term, the court may not impose a sentence exceeding the middle term unless there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and those facts have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. (Pen. Code, §§ 1172.7, 1172.75, subds. (d)(4).)
11. Requires the court to appoint counsel. (Pen. Code, §§ 1172.7, 1172.75, subds. (d)(5).)
12. Provides that the parties may waive a resentencing hearing, and if the hearing is not waived, the resentencing hearing may be conducted remotely through the use of remote technology, if the defendant agrees. (Pen. Code, §§ 1172.7, 1172.75, subds. (e).

This bill:

1. Provides that commencing on January 1, 2025, an individual who has been convicted of a sexually violent offense, as defined, and sentenced to death or LWOP, who, as of January 1, 2025, has not had their judgement reviewed and verified by the sentencing court to determine that the individual is serving a term that includes a legally invalid sentence enhancement for a specified prior drug conviction or prior prison or felony jail term, is not eligible for recall and resentencing.
2. States that the above prohibition does not apply retroactively.

Comments

According to the author of this bill: "In 2021, SB 483 (Allen, Chapter 728, Statutes of 2021) made retroactive California’s elimination of 1- and 3-year sentence enhancements for drug and previous convictions. This created a process by which people could access resentencing for the purposes of removing these legally invalid sentence enhancements. Recently, appeals have been made to the courts arguing that certain people serving sentences for capital and sexually violent offenses qualify for full resentencing under SB 483. This interpretation does not align with the original bill’s intent. While courts have been dismissing the appeals, they have unnecessarily wasted court resources and reopened wounds of victims of their families. SB 285 clarifies who is eligible for resentencing under SB 483 to prevent clogging of the courts, limit re-traumatization of victims and their families, and close a loophole in the original drafting.”

This bill clarifies that persons convicted of the most serious of offenses are not eligible for resentencing under SB 483. Specifically, it states that an individual: (1) sentenced to death or LWOP; (2) who has been convicted of a sexually violent offense; and (3) who, as of January 1, 2025, has not had their judgement reviewed and verified by a sentencing court to confirm that the individual’s term includes a specified legally invalid sentence enhancement, is not eligible for recall and resentencing under SB 483.

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

According to the Assembly Appropriations Committee:

• Possible minor workload cost savings to the courts to the extent the bill expedites the courts’ dismissal of petitions for resentencing filed by specified defendants sentenced to death or LWOP.
• Possible future fiscal impacts on the California Department of Corrections and Rehabilitation (CDCR), of an unknown amount. The fiscal impact of this bill on incarceration costs cannot be predicted with certainty because the size of the prison population affected by the bill is unknown and any possible future savings to CDCR due to resentencing depend largely on judicial discretion. The annual cost to detain one person in state prison is approximately $133,000, with an annual marginal rate per person of over $13,000. Aside from marginal cost savings per person, however, CDCR experiences an institutional cost savings due to resentencing only if the number of incarcerated people decreases to a level that permits the closure of a prison yard or wing.

SUPPORT: (Verified 8/27/24)

Crime Victims Alliance

OPPOSITION: (Verified 8/27/24)

A New Path
California Coalition for Women Prisoners
California Innocence Coalition
California Public Defenders Association
Californians United for A Responsible Budget
Communities United for Restorative Youth Justice (CURYJ)
Community Resource Initiative
Courage California
Ella Baker Center for Human Rights
Felony Murder Elimination Project
Freedom Within Project
Friends Committee on Legislation of California
Initiate Justice
Initiate Justice Action
Prison Yoga + Meditation
San Francisco Public Defender
Silicon Valley De-bug
Theatreworkers Project
Uncommon Law
Universidad Popular
University of San Francisco School of Law | Racial Justice Clinic
Young Women's Freedom Center
Youth Leadership Institute

ARGUMENTS IN SUPPORT: According to Crime Victims Alliance:

SB 285 will correct an oversight in the law that includes the most violent felons to receive privileges of resentencing to remove enhancements from their sentences. This bill would make these provisions inapplicable to any inmate currently sentenced to death, to a term of life without the possibility of parole, or to an indeterminate life sentence, or to any person currently serving a sentence for a sexually violent offense. We believe this legislation is essential to protecting public safety.

ARGUMENTS IN OPPOSITION: According to Initiate Justice:

The RISE Act represents a meaningful step towards reducing the harm of overly long and unjust sentences, allowing families across California to be restored. Sentencing enhancements have not made our communities safer. Instead, long prison and jail sentences are proven to be injurious to system-impacted folks and destabilizing to their families and communities. More generally, they put significant financial burdens on taxpayers and families statewide — the LAO estimates the annual cost to incarcerate one person in state prison for one year to be in excess of $133,000. The RISE Act has given hope to incarcerated Californians to have outdated and unjust sentences reviewed, creating a process for the courts to align sentences with the truth of data-driven and lived experiences that show reducing excessive sentences improves community well-being.

SB 285 would partially reverse this landmark victory for those who have been waiting — decades, for some — for their day back in court. People eligible for resentencing under SB 483 are subject to a judge’s discretion. Judges retain and continue to use their authority to decline resentencing if they find clear and convincing evidence that resentencing would endanger public safety. Sentencing reform in California has worked, and it has reunited people who were incarcerated under extreme sentences with their families, communities, and our economy. The approach proposed in SB 285 (Allen) removes from judges the ability to determine, based on the information available to them at resentencing, that continued incarceration is no longer in the interests of justice, solely based on the original sentence. The RISE Act should not be amended to include this exclusion, as it would fundamentally undermine the reason that SB 483 was first introduced - to ameliorate the harm suffered by individuals who were sentenced to excessive terms. We should not put a limit on who has access to justice.

ASSEMBLY FLOOR: 71-1, 8/26/24

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Calderon, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Mike Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, Muratsuchi, Stephanie Nguyen, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Wicks, Wilson, Wood, Zbur, Robert Rivas

NOES: McKinnor

NO VOTE RECORDED: Bonta, Bryan, Cervantes, Flora, Kalra, Ortega, Weber

Prepared by: Stella Choe / PUB. S. /

8/28/24 17:48:50

**** END ****

SENATE THIRD READING

STR Bill Id:SB 285

Author:(Allen)

As Amended Ver:August 19, 2024

Majority vote

SUMMARY

Provides that an individual who has been convicted of a sexually violent offense and sentenced to death or a term of life without the possibility of parole ("LWOP"), and whose term includes certain specified legally invalid enhancements, is not eligible for certain resentencing.

Major Provisions

1. Provide that commencing January 1, 2025, an individual who has been convicted of a sexually violent offense, as defined, and sentenced to death or LWOP, and who, as of January 1, 2025, has not had their judgement reviewed and verified by a sentencing court to determine that the individual is serving a term that includes a legally invalid sentence enhancement for a specified prior drug conviction or prior prison or felony jail term, is not eligible for recall and resentencing.
2. Provide that this above provision modifying resentencing eligibility does not apply retroactively

COMMENTS

According to the Author

"In 2021, SB 483 (Allen), Chapter 728, Statues of 2021 made retroactive California's elimination of 1- and 3-year sentence enhancements for drug and previous convictions. This created a process by which people could access resentencing for the purposes of removing these legally invalid sentence enhancements. Recently, appeals have been made to the courts arguing that certain people serving sentences for capital and sexually violent offenses qualify for full resentencing under SB 483. This interpretation does not align with the original bill's intent. While courts have been dismissing the appeals, they have unnecessarily wasted court resources and reopened wounds of victims of their families. SB 285 clarifies who is eligible for resentencing under SB 483 to prevent clogging of the courts, limit re-traumatization of victims and their families, and close a loophole in the original drafting."

Arguments in Support

According to Crime Victims Alliance, "SB 285 will correct an oversight in the law that includes the most violent felons to receive privileges of resentencing to remove enhancements from their sentences.

"This bill would make these provisions inapplicable to any inmate currently sentenced to death, to a term of life without the possibility of parole, or to an indeterminate life sentence, or to any person currently serving a sentence for a sexually violent offense.

"We believe this legislation is essential to protecting public safety. We respectfully urge your AYE vote on SB 285."

Arguments in Opposition

According to Courage California, "[i]n 2021, Senator Allen authored SB 483, the Repeal Ineffective Sentence Enhancements (RISE) Act, authorizing courts to retroactively remove 1-year prison prior (SB 136, Wiener) and 3-year drug prior enhancements (SB 180, Mitchell) from the sentences of currently incarcerated people, including those with "final sentences," as well as those serving probation or parole terms. SB 285 seeks to exclude people from these laws, limiting who can and cannot receive access to judicial review, a lesser sentence, and ultimately justice.

"The RISE Act represents a meaningful step towards reducing the harm of overly long and unjust sentences, allowing families across California to be restored. Sentencing enhancements have not made our communities safer. Instead, long prison and jail sentences are proven to be injurious to system-impacted folks and destabilizing to their families and communities. More generally, they put significant financial burdens on taxpayers and families statewide — the LAO estimates the annual cost to incarcerate one person in state prison for one year to be in excess of $133,000. The RISE Act has given hope to incarcerated Californians to have outdated and unjust sentences reviewed, creating a process for the courts to align sentences with the truth of data-driven and lived experiences that show reducing excessive sentences improves community well-being [citation omitted].

"SB 285 would partially reverse this landmark victory for those who have been waiting — decades, for some — for their day back in court. People eligible for resentencing under SB 483 are subject to a judge's discretion. Judges retain and continue to use their authority to decline resentencing if they find clear and convincing evidence that resentencing would endanger public safety.

"Sentencing reform in California has worked, and it has reunited people who were incarcerated under extreme sentences with their families, communities, and our economy. The approach proposed in SB 285 (Allen) removes from judges the ability to determine, based on the information available to them at resentencing, that continued incarceration is no longer in the interests of justice, solely based on the original sentence. The RISE Act should not be amended to include this exclusion, as it would fundamentally undermine the reason that SB 483 was first introduced - to ameliorate the harm suffered by individuals who were sentenced to excessive terms. We should not put a limit on who has access to justice."

FISCAL COMMENTS

According to the Assembly Appropriations Committee:

1. Possible minor workload cost savings to the courts to the extent the bill expedites the courts' dismissal of petitions for resentencing filed by specified defendants sentenced to death or LWOP.
2. Possible future fiscal impacts on the California Department of Corrections and Rehabilitation (CDCR), of an unknown amount. The fiscal impact of this bill on incarceration costs cannot be predicted with certainty because the size of the prison population affected by the bill is unknown and any possible future savings to CDCR due to resentencing depend largely on judicial discretion. The annual cost to detain one person in state prison is approximately $133,000, with an annual marginal rate per person of over $13,000. Aside from marginal cost savings per person, however, CDCR experiences an institutional cost savings due to resentencing only if the number of incarcerated people decreases to a level that permits the closure of a prison yard or wing.

VOTES

SENATE FLOOR: 33-3-4

YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Laird, Limón, McGuire, Menjivar, Min, Newman, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Skinner, Stern, Umberg, Wahab, Wiener, Wilk

NO: Jones, Nguyen, Seyarto

ABS, ABST OR NV: Grove, Hurtado, Rubio, Smallwood-Cuevas

ASM BUSINESS AND PROFESSIONS: 15-2-2

YES: Berman, Alanis, Alvarez, Bonta, Chen, Gipson, Grayson, Jackson, Lee, Lowenthal, McCarty, McKinnor, Stephanie Nguyen, Joe Patterson, Ting

NO: Bains, Dixon

ABS, ABST OR NV: Flora, Irwin

ASM PUBLIC SAFETY: 8-0-0

YES: McCarty, Alanis, Lackey, Stephanie Nguyen, Reyes, Ting, Wilson, Zbur

ASM APPROPRIATIONS: 14-0-1

YES: Wicks, Sanchez, Arambula, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Grayson, Haney, Hart, Jim Patterson, Pellerin, Ta

ABS, ABST OR NV: Villapudua

UPDATED

VERSION: August 19, 2024

CONSULTANT: Ilan Zur / PUB. S. / (916) 319-3744 FN: 0004142

SENATE THIRD READING

STR Bill Id:SB 285

Author:(Allen)

As Amended Ver:July 3, 2024

Majority vote

SUMMARY

Provides that an individual sentenced to death or a term of life without the possibility of parole ("LWOP"), who has been convicted of a sexually violent offense, and whose term includes certain specified legally invalid enhancements, is not eligible for certain resentencing.

Major Provisions

1. Provide that commencing January 1, 2025, an individual sentenced to death or LWOP, and who has been convicted of a sexually violent offense, as defined, and who, as of January 1, 2025, has not had their judgement reviewed and verified by a sentencing court to determine that the individual is serving a term that includes a legally invalid sentence enhancement for a specified prior drug conviction or prior prison or felony jail term, is not eligible for recall and resentencing.
2. Provide that this above provision modifying resentencing eligibility does not apply retroactively.

COMMENTS

According to the Author

"In 2021, SB 483 (Allen, Chapter 728, Statues of 2021) made retroactive California's elimination of 1- and 3-year sentence enhancements for drug and previous convictions. This created a process by which people could access resentencing for the purposes of removing these legally invalid sentence enhancements. Recently, appeals have been made to the courts arguing that certain people serving sentences for capital and sexually violent offenses qualify for full resentencing under SB 483. This interpretation does not align with the original bill's intent. While courts have been dismissing the appeals, they have unnecessarily wasted court resources and reopened wounds of victims of their families. SB 285 clarifies who is eligible for resentencing under SB 483 to prevent clogging of the courts, limit re-traumatization of victims and their families, and close a loophole in the original drafting."

Arguments in Support

According to Crime Victims Alliance, "SB 285 will correct an oversight in the law that includes the most violent felons to receive privileges of resentencing to remove enhancements from their sentences.

"This bill would make these provisions inapplicable to any inmate currently sentenced to death, to a term of life without the possibility of parole, or to an indeterminate life sentence, or to any person currently serving a sentence for a sexually violent offense.

"We believe this legislation is essential to protecting public safety. We respectfully urge your AYE vote on SB 285."

Arguments in Opposition

According to Courage California, "[i]n 2021, Senator Allen authored SB 483, the Repeal Ineffective Sentence Enhancements (RISE) Act, authorizing courts to retroactively remove 1-year prison prior (SB 136, Wiener) and 3-year drug prior enhancements (SB 180, Mitchell) from the sentences of currently incarcerated people, including those with "final sentences," as well as those serving probation or parole terms. SB 285 seeks to exclude people from these laws, limiting who can and cannot receive access to judicial review, a lesser sentence, and ultimately justice.

"The RISE Act represents a meaningful step towards reducing the harm of overly long and unjust sentences, allowing families across California to be restored. Sentencing enhancements have not made our communities safer. Instead, long prison and jail sentences are proven to be injurious to system-impacted folks and destabilizing to their families and communities. More generally, they put significant financial burdens on taxpayers and families statewide — the LAO estimates the annual cost to incarcerate one person in state prison for one year to be in excess of $133,000. The RISE Act has given hope to incarcerated Californians to have outdated and unjust sentences reviewed, creating a process for the courts to align sentences with the truth of data-driven and lived experiences that show reducing excessive sentences improves community well-being [citation omitted].

"SB 285 would partially reverse this landmark victory for those who have been waiting — decades, for some — for their day back in court. People eligible for resentencing under SB 483 are subject to a judge's discretion. Judges retain and continue to use their authority to decline resentencing if they find clear and convincing evidence that resentencing would endanger public safety.

"Sentencing reform in California has worked, and it has reunited people who were incarcerated under extreme sentences with their families, communities, and our economy. The approach proposed in SB 285 (Allen) removes from judges the ability to determine, based on the information available to them at resentencing, that continued incarceration is no longer in the interests of justice, solely based on the original sentence. The RISE Act should not be amended to include this exclusion, as it would fundamentally undermine the reason that SB 483 was first introduced - to ameliorate the harm suffered by individuals who were sentenced to excessive terms. We should not put a limit on who has access to justice."

FISCAL COMMENTS

According to the Assembly Appropriations Committee:

1. Possible minor workload cost savings to the courts to the extent the bill expedites the courts' dismissal of petitions for resentencing filed by specified defendants sentenced to death or LWOP.
2. Possible future fiscal impacts on the California Department of Corrections and Rehabilitation (CDCR), of an unknown amount. The fiscal impact of this bill on incarceration costs cannot be predicted with certainty because the size of the prison population affected by the bill is unknown and any possible future savings to CDCR due to resentencing depend largely on judicial discretion. The annual cost to detain one person in state prison is approximately $133,000, with an annual marginal rate per person of over $13,000. Aside from marginal cost savings per person, however, CDCR experiences an institutional cost savings due to resentencing only if the number of incarcerated people decreases to a level that permits the closure of a prison yard or wing.

VOTES

SENATE FLOOR: 33-3-4

YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Laird, Limón, McGuire, Menjivar, Min, Newman, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Skinner, Stern, Umberg, Wahab, Wiener, Wilk

NO: Jones, Nguyen, Seyarto

ABS, ABST OR NV: Grove, Hurtado, Rubio, Smallwood-Cuevas

ASM BUSINESS AND PROFESSIONS: 15-2-2

YES: Berman, Alanis, Alvarez, Bonta, Chen, Gipson, Grayson, Jackson, Lee, Lowenthal, McCarty, McKinnor, Stephanie Nguyen, Joe Patterson, Ting

NO: Bains, Dixon

ABS, ABST OR NV: Flora, Irwin

ASM PUBLIC SAFETY: 8-0-0

YES: McCarty, Alanis, Lackey, Stephanie Nguyen, Reyes, Ting, Wilson, Zbur

ASM APPROPRIATIONS: 14-0-1

YES: Wicks, Sanchez, Arambula, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Grayson, Haney, Hart, Jim Patterson, Pellerin, Ta

ABS, ABST OR NV: Villapudua

UPDATED

VERSION: July 3, 2024

CONSULTANT: Ilan Zur / PUB. S. / (916) 319-3744 FN: 0003904

Date of Hearing: August 7, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

SBPCA Bill Id:SB 285

Author:(Allen) – As Amended Ver:July 3, 2024

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

SUMMARY:

This bill specifies that, beginning on January 1, 2025, a person sentenced to death or life without the possibility of parole (LWOP) who has a conviction for a sexually violent offense is not eligible for resentencing relief relating to specified sentencing enhancements.

FISCAL EFFECT:

1. Possible minor workload cost savings to the courts to the extent the bill expedites the courts’ dismissal of petitions for resentencing filed by specified defendants sentenced to death or LWOP.
2. Possible future fiscal impacts on the California Department of Corrections and Rehabilitation (CDCR), of an unknown amount. The fiscal impact of this bill on incarceration costs cannot be predicted with certainty because the size of the prison population affected by the bill is unknown and any possible future savings to CDCR due to resentencing depend largely on judicial discretion. The annual cost to detain one person in state prison is approximately $133,000, with an annual marginal rate per person of over $13,000. Aside from marginal cost savings per person, however, CDCR experiences an institutional cost savings due to resentencing only if the number of incarcerated people decreases to a level that permits the closure of a prison yard or wing.

COMMENTS:

A sentencing enhancement is an additional term of incarceration imposed by the court in addition to the base sentence imposed for committing a crime. Some sentencing enhancements are based on the circumstances of the crime, while others pertain to the defendant’s personal circumstances. Multiple sentencing enhancements may be imposed for a single criminal case, sometimes significantly lengthening a defendant’s period of incarceration. In recent years, the Legislature passed measures that eliminated the authority for courts to impose certain sentencing enhancements related to a defendant’s criminal history and prior drug offenses. In 2021, the Legislature enacted SB 483 (Allen), Chapter 728, Statutes of 2021, which repealed these sentencing enhancements retroactively. If an incarcerated person was issued a now-eliminated sentencing enhancement, SB 483 requires the court to dismiss the sentencing enhancement and issue an updated sentence.

However, according to the author:

Recently, appeals have been made to the courts arguing that certain people serving sentences for capital and sexually violent offenses qualify for full resentencing under SB 483. This interpretation does not align with the original bill’s intent. While courts have been dismissing the appeals, they have unnecessarily wasted court resources and reopened wounds of victims of their families. SB 285 clarifies who is eligible for resentencing under SB 483 to prevent clogging of the courts, limit re-traumatization of victims and their families, and close a loophole in the original drafting.

This bill clarifies that a person is not eligible for recall and resentencing under SB 483 if the person (1) is sentenced to death or LWOP, (2) has been convicted of a sexually violent offence, and (3) has not had their judgement reviewed and verified by a sentencing court to determine they are serving a term that includes a legally invalid sentence enhancement as of January 1, 2025.

Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081

Date of Hearing: July 2, 2024

Counsel: Ilan Zur

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Kevin McCarty, Chair

SBPCA Bill Id:SB 285

Author:(Allen) – As Amended Ver:June 4, 2024

UPDATED

As Proposed to be Amended in Committee

SUMMARY: Provides that an individual sentenced to death or a term of life without the possibility of parole (“LWOP”), who has been convicted of a sexually violent offense, and whose term includes certain specified legally invalid enhancements, is not eligible for certain resentencing. Specifically, this bill:

1. Provides that commencing January 1, 2025, an individual sentenced to death or LWOP, and who has been convicted of a sexually violent offense, as defined, and who, as of January 1, 2025, has not had their judgement reviewed and verified by a sentencing court to determine that the individual is serving a term that includes a legally invalid sentence enhancement for a specified prior drug conviction or prior prison or felony jail term, is not eligible for recall and resentencing.
2. Provides that this above provision modifying resentencing eligibility does not apply retroactively.

EXISTING LAW:

1. States that any sentence enhancement received prior to January 1, 2018, imposing on a defendant convicted of specified crimes related to controlled substances, an additional three-year term for each prior conviction of specified crimes related to controlled is legally invalid, except if the enhancement was imposed for a prior conviction of using a minor in the commission of offenses involving specified controlled substance. (Pen. Code, § 1172.7, subd. (a).)
2. States that any sentence enhancement received prior to January 1, 2020, imposing an additional one-year term of imprisonment for each prior prison or county jail felony term served by the defendant for a non-violent felony is legally invalid, except if the enhancement was for a prior conviction of a sexually violent offense. (Pen. Code, § 1172.75, subd. (a).)
3. Requires the Secretary of the Department of Corrections and Rehabilitation (CDCR) and the county correctional administrator of each county to identify those persons in their custody currently serving a term for judgment that includes one of the repealed enhancements and to provide the name of each person, along with the person’s date of birth and relevant case number or docket number, to the sentencing court that imposed the enhancement. This information shall be provided as follows:
   1. By March 1, 2022, for individuals who have served their base term and any other enhancement and are currently serving a sentence based on the enhancement. For purposes of this paragraph, all other enhancements shall be considered to have been served first.
      1. By July 1, 2022, for all other individuals. (Pen. Code, §§ 1172.7, 1172.75, subds. (b)
4. States that upon receiving that information, the court shall review the judgment and verify that the current judgement includes one of the repealed enhancements and the court shall recall the sentence and resentence the defendant. The review and resentencing shall be completed as follows:
   1. By October 1, 2022, for individuals who have served their base term and any other enhancement and are currently serving a sentence based on the enhancement; and,
   2. By December 31, 2023, for all other individuals. (Pen. Code, §§ 1172.7, 1172.75, subds. (c)
5. States that the above resentencing shall result in a lesser sentence than the one originally imposed, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. (Pen. Code, §§ 1172.7, 1172.75, subds. (d)(1).
6. Provides that the above resentencing shall not result in a longer sentence than originally imposed. (Ibid.)
7. States that the court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing. (Pen. Code, §§ 1172.7, 1172.75, subds. (d)(2).
8. Allows a court to consider post-conviction factors at resentencing, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice. (Pen. Code, §§ 1172.7, 1172.75, subds. (d)(3).
9. Provides that unless the court originally imposed the upper term, the court may not impose a sentence exceeding the middle term unless there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and those facts have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. (Pen. Code, §§ 1172.7, 1172.75, subds. (d)(4).
10. Requires the court to appoint counsel. (Pen. Code, §§ 1172.7, 1172.75, subds. (d)(5).
11. Provides that the parties may waive a resentencing hearing, and if the hearing is not waived, the resentencing hearing may be conducted remotely through the use of remote technology, if the defendant agrees. (Pen. Code, §§ 1172.7, 1172.75, subds. (e).
12. States that the Legislature finds and declares that in order to ensure equal justice and address systemic racial bias in sentencing, it is the intent of the Legislature to retroactively apply SB 180 (Mitchell, Chapter 677, Statutes of 2017) and SB 136 (Wiener, Chapter 590, Statutes of 2019) to all persons currently serving a term of incarceration in jail or prison for these repealed sentence enhancements. (SB 483 (Allen), Chapter 728, Statutes of 2021, Sec. 1.)
13. States Legislative intent that any changes to a sentence as a result of these above provisions is not a basis for a prosecutor or court to rescind a plea agreement. (Ibid.)

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author's Statement: According to the author, "In 2021, SB 483 (Allen, Chapter 728, Statues of 2021) made retroactive California’s elimination of 1- and 3-year sentence enhancements for drug and previous convictions. This created a process by which people could access resentencing for the purposes of removing these legally invalid sentence enhancements. Recently, appeals have been made to the courts arguing that certain people serving sentences for capital and sexually violent offenses qualify for full resentencing under SB 483. This interpretation does not align with the original bill’s intent. While courts have been dismissing the appeals, they have unnecessarily wasted court resources and reopened wounds of victims of their families. SB 285 clarifies who is eligible for resentencing under SB 483 to prevent clogging of the courts, limit re-traumatization of victims and their families, and close a loophole in the original drafting.”
2. Sentence Enhancements in California: There are currently more than 100 unique sentence enhancements used in California that can be used to increase the term of imprisonment a defendant will serve.^[1] Enhancements add time to a person’s sentence for factors relevant to the defendant such as prior criminal history or for specific facts related to the crime. Multiple enhancements can be imposed in a single case and can range from adding a specified number of years to a person’s sentence, or doubling a person’s sentence or even converting a determinate sentence into a life sentence.
   
   A 2023 report on sentencing enhancements found that about 40% of individual prison admissions since 2015 have sentences lengthened by a sentence enhancement.^[2] For currently incarcerated persons, the prevalence of enhanced sentences is even higher, impacting the sentences of approximately 70% of people incarcerated as of 2022.^[3] Data shows that enhancements have been applied a total of 167,340 times to new prison admissions since 2015, and have been applied 197,274 times in the cases of those incarcerated as of July 2022.^[4] Lastly, there are significant racial disparities in the percent of prison admissions subject to sentence enhancements. Specifically, “of the currently incarcerated Black people, 78% have at least one sentence enhancement, while 70% of American Indian/Alaskan Native people, 66% of Hispanic people, 60% of Asian or Pacific Islander people, and 58% of White people have at least one enhancement.”^[5]
3. Retroactive Sentence Enhancement Relief Provided by SB 483 (Allen), Chapter 728, Statutes of 2021: Prior to January 1, 2020, Penal Code section 667.5, subdivision (b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a separate prior prison or county jail term for a felony and had not remained free of custody for at least five years. But effective January 1, 2020, SB 136 (Wiener), Chapter 590, Statutes of 2019, amended section 667.5, subdivision (b) to limit the prior prison term enhancement to only prior prison terms for sexually violent offenses, as defined in Welfare and Institutions Code section 6600, subdivision (b).
   
   Further, former Health and Safety Code section 11370.2, provided for a mandatory three-year enhancement for each prior felony conviction of certain enumerated offenses related to controlled substances. But effective January 1, 2018, SB 180 (Mitchell) Chapter 677, Statutes of 2017, narrowed the list of prior offenses that qualify a defendant for an enhancement under this provision. Now the enhancement only applies to prior convictions that involved using a minor to commit drug-related crimes.
   
   SB 483 (Allen), Chapter 728, Statutes of 2021, retroactively applied the repeal of the above sentence enhancements for prior prison or county jail felony terms and for prior convictions of specified crimes related to controlled substances, absent some indication to the contrary in a bill, courts presume the Legislature intended changes to apply prospectively. (See Pen. Code, § 3.) However, SB 483’s language explicitly established legislative intent for SB 180 (Mitchell, Chapter 677, Statutes of 2017) and SB 136 (Wiener, Chapter 590, Statutes of 2019) to retroactively all persons currently serving a term of incarceration in jail or prison for these repealed sentence enhancements. Specifically, it provided that any one year sentence enhancement for each prior prison or county jail felony term served by a defendant for a non-violent felony imposed prior to January 1, 2020 is legally invalid, unless the enhancement was for a prior conviction of a sexually violent offense. Similarly, it made the additional three-year enhancement for each prior conviction of specified crimes related to controlled substances, for defendants convicted of specified crimes related to controlled substances legally invalid if the enhancement was imposed prior to January 1, 2018.

SB 483’s retroactive enhancement relief was required to be completed by December 31, 2023. SB 483 established timelines surrounding when such retroactive enhancement relief must be completed. First, SB 483 required the Secretary of CDCR to identify applicable persons serving a term for judgement including one of the repealed enhancements and provide that information to the sentencing court that imposed the enhancement no later than July 1, 2022. Second, it required the sentencing court to verify that the current judgement includes one of the repealed enhancements and to recall the sentence and resentence the defendant, and provided that this review and resentencing must be completed no later than December 31, 2023. That being said, it appears that at least a thousand eligible persons are still awaiting resentencing under SB 483.

1. Effect of this Bill: Earlier this year, Richard Allen Davis, a convicted murderer and sexually violent offender serving a death penalty sentence, petitioned for recall and resentencing under SB 483 on the basis that his sentence included enhancements declared legally invalid by SB 483. This petition was denied on May 31, 2024. SB 285 seeks to clarify that persons convicted of the most serious of offenses, such as Richard Allen Davis, are not eligible for resentencing under SB 483. Specifically, it states that an individual: 1) sentenced to death or LWOP; 2) who has been convicted of a sexually violent offense; and 3) who, as of January 1, 2025, has not had their judgement reviewed and verified by a sentencing court to confirm that the individual’s term includes a specified legally invalid sentence enhancement, is not eligible for recall and resentencing under SB 483.
2. Need for the Bill: Judges can already deny resentencing requests for the most serious of offenders. This was shown when the court summarily denied Richard Allen Davis’ request for resentencing earlier this year as an unauthorized challenge to the death sentence. In addition, courts already have discretion to refuse to issue a lesser sentence during resentencing, if the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. As such, persons who have committed the most serious of crimes punishable by the death penalty or LWOP, are unlikely to be resentenced to a lower sentence under SB 483. In fact, it is unclear if any person serving a death penalty or LWOP sentence has been resentenced under SB 483. As such, the need for this bill is unclear.
3. Argument in Support: None
4. Argument in Opposition: According to Courage California, “[i]n 2021, Senator Allen authored SB 483, the Repeal Ineffective Sentence Enhancements (RISE) Act, authorizing courts to retroactively remove 1-year prison prior (SB 136, Wiener) and 3-year drug prior enhancements (SB 180, Mitchell) from the sentences of currently incarcerated people, including those with “final sentences,” as well as those serving probation or parole terms. SB 285 seeks to exclude people from these laws, limiting who can and cannot receive access to judicial review, a lesser sentence, and ultimately justice.

The RISE Act represents a meaningful step towards reducing the harm of overly long and unjust sentences, allowing families across California to be restored. Sentencing enhancements have not made our communities safer. Instead, long prison and jail sentences are proven to be injurious to system-impacted folks and destabilizing to their families and communities. More generally, they put significant financial burdens on taxpayers and families statewide — the LAO estimates the annual cost to incarcerate one person in state prison for one year to be in excess of $133,000. The RISE Act has given hope to incarcerated Californians to have outdated and unjust sentences reviewed, creating a process for the courts to align sentences with the truth of data-driven and lived experiences that show reducing excessive sentences improves community well-being [citation omitted].

SB 285 would partially reverse this landmark victory for those who have been waiting — decades, for some — for their day back in court. People eligible for resentencing under SB 483 are subject to a judge’s discretion. Judges retain and continue to use their authority to decline resentencing if they find clear and convincing evidence that resentencing would endanger public safety.

Sentencing reform in California has worked, and it has reunited people who were incarcerated under extreme sentences with their families, communities, and our economy. The approach proposed in SB 285 (Allen) removes from judges the ability to determine, based on the information available to them at resentencing, that continued incarceration is no longer in the interests of justice, solely based on the original sentence. The RISE Act should not be amended to include this exclusion, as it would fundamentally undermine the reason that SB 483 was first introduced - to ameliorate the harm suffered by individuals who were sentenced to excessive terms. We should not put a limit on who has access to justice.”

1. Related Legislation: None
2. Prior Legislation:
   
   1. SB 483 (Allen), Chapter 728, Statutes of 2021, applies retroactively the repeal of sentence enhancements for prior prison or county jail felony terms and for prior convictions of specified crimes related to controlled substances.
   2. SB 81 (Skinner), Chapter 721, Statutes of 2021, provides guidance to courts by specifying circumstances for a court to consider when determining whether to apply an enhancement.
   3. AB 1540 (Ting), Chapter 719, Statutes of 2021, requires the court to provide counsel for the defendant when there is recommendation from the Secretary of the Department of Corrections and Rehabilitation (CDCR), the Board of Parole Hearings (BPH), Sheriff, or the prosecuting agency, to recall an inmate's sentence and resentence that inmate to a lesser sentence, and creates a presumption favoring recall and resentencing, as specified, when the recommendation has been made by one of the agencies described above.
   4. AB 1245 (Cooley), would allow a defendant who has served at least 15 years in the state prison to file a petition for recall and resentencing. AB 1245 died in Assembly Appropriations Committee.
      
   5. AB 1509 (Lee), would repeal several firearm enhancements, reduces the penalty for using a firearm in the commission of specified crimes from 10 year, 20 years, or 25-years-to-life to one, two, or three years, and authorizes recall and resentencing for a person serving a term for these enhancements. AB 1509 was held in the Assembly Appropriations Committee.
      
   6. SB 136 (Wiener), Chapter 590, Statutes of 2019, limits the one-year sentence enhancement for prison or county jail felony priors by permitting imposition of the enhancement for a defendant sentenced to a new felony offense only if the defendant has a prior conviction for a sexually violent offense, as specified.
      
   7. SB 1392 (Mitchell), of the 2017-2018 Legislative Session, would have repealed the one-year sentence enhancement for each prior prison or county jail felony term that applies to a defendant sentenced on a new felony. SB 1392 failed passage on the Senate Floor.
      
   8. SB 180 (Mitchell), Chapter 677, Statutes of 2017, limited the three-year enhancement for a prior conviction related to the sale or possession for sale of specified controlled substance to convictions for the manufacture of a controlled substance, or using or employing a minor in the commission of specified controlled substance offenses.
      
   9. SB 966 (Mitchell), of the 2015-2016 Legislative Session, would have eliminated the three-year enhancement upon conviction for the sale or possession for sale of specified controlled substances with a prior conviction related to the same. SB 966 failed passage in this Committee.

REGISTERED SUPPORT / OPPOSITION:

Support:

None

Opposition:

A New Path
California Coalition for Women Prisoners
California Innocence Coalition
California Public Defenders Association
Californians United for A Responsible Budget
Communities United for Restorative Youth Justice (CURYJ)
Community Resource Initiative
Courage California
Ella Baker Center for Human Rights
Felony Murder Elimination Project
Freedom Within Project
Friends Committee on Legislation of California
Initiate Justice
Initiate Justice Action
Prison Yoga + Meditation
San Francisco Public Defender
Silicon Valley De-bug
Smart Justice California, a Project of Tides Advocacy
Theatreworkers Project
Uncommon Law
Universidad Popular
University of San Francisco School of Law | Racial Justice Clinic
Young Women's Freedom Center
Youth Leadership Institute

Analysis Prepared by: Ilan Zur

1. Bird et. al., Sentence Enhancements in California, California Policy Lab (March 2023), p. 6, available at: https://www.capolicylab.org/wp-content/uploads/2023/03/Sentence-Enhancements-in-California.pdf ↑

2. Id. at p. 3. ↑

3. Ibid. ↑

4. Id. at p. 6. ↑

5. Id. at 31. ↑

Date of Hearing: June 20, 2023

ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS

Marc Berman, Chair

SBPCA Bill Id:SB 285

Author:(Allen) – As Amended Ver:April 11, 2023

NOTE: This bill is double referred and if passed by this Committee will be re-referred to the Assembly Committee on Governmental Organization.

SENATE VOTE: 33-3

SUBJECT: Cannabis: retail preparation, sale, and consumption of noncannabis food and beverage products

SUMMARY: Authorizes a local jurisdiction to allow for the preparation or sale of non-cannabis food or beverage products by a licensed cannabis retailer or microbusiness in an area where the consumption of cannabis is allowed, if certain conditions are met, and to allow for the sale of prepackaged, non-cannabis-infused, nonalcoholic food and beverages by a licensed retailer.

EXISTING LAW:

1. Enacts the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA) to provide for a comprehensive regulatory framework for the cultivation, distribution, transport, storage, manufacturing, processing, and sale of medicinal and adult-use cannabis. (Business and Professions Code (BPC) §§ 26000 et seq.)
2. Establishes the Department of Cannabis Control (Department) within the Business, Consumer Services, and Housing Agency (previously established as the Bureau of Cannabis Control, the Bureau of Marijuana Control, the Bureau of Medical Cannabis Regulation, and the Bureau of Medical Marijuana Regulation), for purposes of administering and enforcing MAUCRSA. (BPC § 26010)
3. Provides for twenty total types of cannabis licenses including subtypes for cultivation, manufacturing, testing, retail, distribution, and microbusiness. (BPC § 26050)
4. Requires the Department to convene an advisory committee to advise state licensing authorities on the development of standards and regulations for legal cannabis, including best practices and guidelines that protect public health and safety while ensuring a regulated environment for commercial cannabis activity that does not impose such barriers so as to perpetuate, rather than reduce and eliminate, the illicit market for cannabis. (BPC § 26014)
5. Prohibits a cannabis licensee from selling alcoholic beverages or tobacco products on its premises. (BPC § 26054)
6. Requires cannabis or cannabis products purchased by a customer to be placed in an opaque package prior to leaving a licensed retail premises. (BPC § 26070.1)
7. Expresses that state cannabis laws shall not be interpreted to supersede or limit the authority of a local jurisdiction to adopt and enforce local ordinances to regulate cannabis businesses. (BPC § 26200(a))
8. Authorizes a local jurisdiction to allow for the smoking, vaporizing, and ingesting of cannabis or cannabis products on the premises of a licensed retailer or microbusiness if all of the following are met:
   1. Access to the area where cannabis consumption is allowed is restricted to persons 21 years of age or older.
   2. Cannabis consumption is not visible from any public place or nonage-restricted area.
   3. Sale or consumption of alcohol or tobacco is not allowed on the premises.

(BPC § 26200(g))

THIS BILL:

1. Authorizes a local jurisdiction to allow for the preparation or sale of non-cannabis food or beverage products by a licensed retailer or microbusiness licensed in the area where the consumption of cannabis is allowed.
2. Requires all non-cannabis food or beverage products to be prepared and sold in compliance with all applicable provisions of the California Retail Food Code.
3. Provides that the existing limitations on a local jurisdiction allowing for the consumption of cannabis on licensed retail premises apply to the sale non-cannabis food and beverages.
4. Additionally authorizes a local jurisdiction to allow for the sale of prepackaged, non-cannabis-infused, nonalcoholic food and beverages by a licensed cannabis retailer.

FISCAL EFFECT: This bill is keyed non-fiscal by the Legislative Counsel.

COMMENTS:

Purpose. This bill is sponsored by the West Hollywood Chamber of Commerce. According to the author:

“Due to state regulations, cannabis lounges legally allowed to operate within a jurisdiction are unable to prepare or serve customers with freshly made non-cannabis food and non-alcoholic beverages, and other retailers are unable to sell even pre-packaged items. SB 285 provides local governments with the ability to allow authorized cannabis consumption lounges to prepare and serve non-cannabis-infused, non-alcoholic beverages and food. Additionally, SB 285 would allow locals to authorize the sale of pre-packaged food and beverage items to any cannabis retailer. This simple proposal supports small businesses while preserving local control over the operation of cannabis retailers. In no way does this measure expand indoor smoking as cannabis consumption in these lounges is already permissible under existing law.”

Background.

Brief History of Cannabis Regulation in California. Consumption of cannabis was first made lawful in California in 1996 when voters approved Proposition 215, or the Compassionate Use Act. Proposition 215 protected qualified patients and caregivers from prosecution relating to the possession and cultivation of cannabis for medicinal purposes, if recommended by a physician. This regulatory scheme was further refined by SB 420 (Vasconcellos) in 2003, which established the state’s Medical Marijuana Program. After several years of lawful cannabis cultivation and consumption under state law, a lack of a uniform regulatory framework led to persistent problems across the state. Cannabis’s continued illegality under the federal Controlled Substances Act, which classifies cannabis as a Schedule I drug ineligible for prescription, generated periodic enforcement activities by the United States Department of Justice. Threat of action by the federal government created apprehension within California’s cannabis community.

After several prior attempts to improve the state’s regulation of cannabis, the Legislature passed the Medical Marijuana Regulation and Safety Act—subsequently retitled the Medical Cannabis Regulation and Safety Act (MCRSA)—in 2015. MCRSA established, for the first time, a comprehensive statewide licensing and regulatory framework for the cultivation, manufacture, transportation, testing, distribution, and sale of medicinal cannabis. While entrusting state agencies to promulgate extensive regulations governing the implementation of the state’s cannabis laws, MCRSA fully preserved local control. Under MCRSA, local governments may establish their own ordinances to regulate medicinal cannabis activity. Local jurisdictions could also choose to ban cannabis establishments altogether.

Not long after the Legislature enacted MCRSA, California voters passed Proposition 64, the Adult Use of Marijuana Act (AUMA). The passage of the AUMA legalized cannabis for non-medicinal adult use in a private home or licensed business; allowed adults 21 and over to possess and give away up to approximately one ounce of cannabis and up to eight grams of concentrate; and permitted the personal cultivation of up to six plants. The proponents of the AUMA sought to make use of much of the regulatory framework and authorities set out by MCRSA while making a few notable changes to the structure still being implemented.

In the spring of 2017, SB 94 (Committee on Budget and Fiscal Review) was passed to reconcile the distinct systems for the regulation, licensing, and enforcement of legal cannabis that had been established under the respective authorities of MCRSA and the AUMA. The single consolidated system established by the bill—known as the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA)—created a unified series of cannabis laws. On January 16, 2019, the state’s three cannabis licensing authorities—the Bureau of Cannabis Control, the California Department of Food and Agriculture, and the California Department of Public Health—officially announced that the Office of Administrative Law had approved final cannabis regulations promulgated by the three agencies respectively.

In early 2021, the Department of Finance released trailer bill language to create a new Department with centralized authority for cannabis licensing and enforcement activities. This new department was created through a consolidation of the three prior licensing authorities’ cannabis programs. As of July 1, 2021, the Department has been the single entity responsible for administering and enforcing the majority of MAUCRSA. New regulations went into effect on January 1, 2023 to effectuate the consolidation and make other changes to cannabis regulation.

Cannabis Consumption Lounges. MAUCRSA generally prohibits smoking, vaporizing, or ingesting cannabis or cannabis products in any public place. However, Proposition 64 authorized local jurisdictions to allow for cannabis or cannabis products to be consumed on the premises of a retailer or microbusiness licensed under certain conditions. This language gave cities and counties the option of locally allowing for the establishment of settings referred to commonly as “consumption lounges” where cannabis use can occur socially.

MAUCRSA law does not expressly allow for licensees to sell non-cannabis food or beverages within a consumption lounge. The law also does not speak to the legality of selling tickets to performances held on the premises. However, Section 15407 in the Department’s regulations states: “In addition to cannabis goods, a licensed retailer may sell only cannabis accessories and the branded merchandise of any licensee.”^[1] This regulation historically prohibited cannabis retailers from selling food or beverages not infused with cannabis, including on the premises of a consumption lounge.

This prohibition would not allow for the type of consumption lounges proposed by the City of West Hollywood, which adopted a Cannabis Ordinance on November 20, 2017. License applicants presented the city with hospitality-focused business proposals, where customers would be able to consume cannabis and cannabis products in a “social lounge” setting. One proposal described itself as a “full service restaurant” offering meals “featuring local, organic ingredients with farm-to-table preparation.” Under the proposal, these meals could be optionally enhanced “with CBD and THC infused dressings and sauces, natural agave sweeteners, and wellness shots.” The City of West Hollywood sponsored prior bills like this one to preempt the Department’s regulations, but these measures did not reach the Governor’s desk.

In 2022, the Department revised its regulations to additionally state that cannabis retailers who operate a consumption area to “may also sell prepackaged, non-cannabis-infused, non-alcoholic food and beverages if the applicable local jurisdiction allows such sales.” The Department’s revised regulations further clarified that nothing in its regulations prevents consumers from “bringing or receiving non-cannabis-infused, non-alcoholic food and beverages from a restaurant or food delivery service for consumption in the designated consumption area on the licensed premises, if the applicable local jurisdiction allows such activities.”

The Department’s revised regulations created a model wherein non-cannabis food and beverages can be sold and consumed in a consumption lounge. However, the law still doesn’t allow cannabis retailers to prepare fresh food or beverages on the premises. This bill seeks to preempt the Department’s regulations and amend MAUCRSA to explicitly allow cannabis retailers to sell non-cannabis-infused food, nonalcoholic beverages. This allowance would remain within the context of the consumption lounge model, which requires local authorization and approval. The bill would also retain MAUCRSA’s prohibition against cannabis retailers selling or serving alcoholic beverages or tobacco products, and access to the consumption lounge area would remain restricted to persons 21 or older and be kept out of sight from the general public.

Additionally, this bill would expand the current authority for cannabis retailers to sell prepackaged, non-cannabis-infused, non-alcoholic food and beverages with local approval. While the Department’s regulations currently limit these sales to within an authorized consumption area, this bill would extend the authority of local governments to allow for any cannabis retailer to sell prepackaged food and beverages, including those that conduct sales exclusively through delivery. This provision of the bill is intended to expand the amount of non-cannabis commercial activity a retailer may engage in.

Current Related Legislation. AB 374 (Haney) would authorize local jurisdictions to allow cannabis retailers to prepare and serve non-cannabis food and beverages, and to hold and sell tickets to live musical or other performances, in the area of the premises where consumption of cannabis and cannabis goods is authorized. This bill is pending in the Senate Committee on Rules.

Prior Related Legislation. AB 1034 (Bloom) would have authorized a local jurisdiction to allow for the preparation or sale of non-cannabis food or beverage products by a licensed cannabis retailer or microbusiness in an area where the consumption of cannabis is allowed. This bill died in the Senate Committee on Business, Professions and Economic Development.

AB 1465 (Bloom) of 2019 would have created a new cannabis license type for a “consumption cafe/lounge,” in which customers may consume cannabis and cannabis products onsite within an establishment that may also prepare and sell non-cannabis products. This bill died in Assembly Appropriations Committee.

SB 94 (Committee on Budget and Fiscal Review, Chapter 27, Statutes of 2017) combined AUMA and MCRSA into one system for the regulation of cannabis, resulting in MAUCRSA.

ARGUMENTS IN SUPPORT:

The California Cannabis Industry Association (CCIA) supports this bill. According to the CCIA: “Some jurisdictions, including San Francisco and West Hollywood, allow the consumption of cannabis within the premises of a cannabis retailer. These ‘consumption lounges’ provide a place for customers to smoke, vape, or otherwise ingest cannabis and cannabis products.” CCIA argues that “SB 285 would enhance local governments’ ability to permit and regulate licensed cannabis in their jurisdictions, while expanding opportunities for cannabis retailers to offer new customer experiences.”

ARGUMENTS IN OPPOSITION:

The American Cancer Society Cancer Action Network, the American Heart Association, the American Lung Association, and the Campaign for Tobacco Free Kids write jointly in opposition to this bill, arguing that it “would circumvent current smoke-free laws by creating a new law to permit smoking and vaping cannabis or cannabis products in restaurants if approved by a local jurisdiction.” The coalition states that “secondhand marijuana smoke contains many of the same toxins and carcinogens found in directly inhaled marijuana smoke, in similar amounts if not more.” According to the coalition, “California has fought hard to protect workers and ensure a safe, healthy, smoke free work environment. SB 285 will undo that by re-creating the harmful work environments of the past.”

POLICY ISSUES:

Prepackaged Food and Beverage Sales. In addition to allowing cannabis retailers to sell freshly prepared non-cannabis food and beverages within their authorized consumption areas, this bill would allow any licensed cannabis retailer to sell prepackaged non-cannabis food and beverages as part of its general retail operations. This would mean that a cannabis retailer could feature bags of chips or cans of soda on its shelves alongside cannabis products, and that a nonstorefront retailer could deliver these types of items. As previously discussed, the Department’s regulations currently only allow for these items to be sold within an approved consumption area.

While it may appear reasonable to allow a cannabis retailer to additionally sell non-cannabis goods that may be appealing to its customers, this expansion may open the door to the incorporation of cannabis sales into otherwise non-cannabis oriented enterprises. For example, if a cannabis retailer may sell grocery items, there is nothing that would necessarily prevent a local grocery store from obtaining a cannabis license. This is arguably not what the voters envisioned when they approved Proposition 64.

It should be noted that the bill would only allow for such sales of non-cannabis food and beverage goods if a local government chooses to allow it. Retail stores would be prohibited from selling tobacco or alcohol products, which may discourage them from choosing to obtain a cannabis retail license, and they would have to comply with a litany of additional regulations under MAUCRSA that do not currently apply to grocery stores. However, given that the Department’s regulations have historically sought to limit the extent to which a cannabis retailer may offer other goods and services to consumers, the author may wish to consider whether this is an appropriate step to take in the direction of expanding where cannabis and non-cannabis food products may be sold concurrently.

Attractiveness to Children. Another potential issue with the proposal to broaden the sale of prepackaged non-cannabis food and beverage products involves potential conflict with protections in Proposition 64 relating to attractiveness to children. The AUMA includes a number of specified safeguards for minors, including a prohibition against cannabis products that are “designed to be appealing to children or easily confused with commercially sold candy or foods that do not contain marijuana.” It would arguably be inconsistent with the intent of the initiative to allow for cannabis retailers to sell cannabis products alongside the actual candy they are prohibited from resembling.

Hemp Products. In addition to the above issues, the author may wish to consider whether the proposal to broaden the sale of prepackaged non-cannabis food and beverage products may have unintended consequences in terms of allowing hemp products to be sold by cannabis retailers. Notwithstanding the biological and chemical similarities of cannabis and hemp, hemp products are considered “non-cannabis goods” for purpose of MAUCRSA. While presumably an individual or entity could both engage in a licensed cannabis business and in a business involving hemp, it is understood that the two supply chains must remain fully distinct. Whether hemp and cannabis products should be allowed to coexist in a regulatory context has been debated consistently over the past several years, and legislation is currently pending on this topic. If the provision in this bill relating to general sales of prepackaged non-cannabis food and beverage products is retained, the author may wish to exclude the sale of non-cannabis hemp products.

REGISTERED SUPPORT:

Americans for Safe Access
Angeles Emeralds
California Cannabis Industry Association

California Cannabis Manufacturers Association
California Minority Alliance

California NORML
City of West Hollywood
Coachella Valley Cannabis Alliance Network

Fantom Flower
Lompoc Valley Cannabis Association, Santa Barbara County
Long Beach Collective Association

The Parent Company
pureBar
San Francisco Cannabis Retailers Association
Social Equity LA
United Cannabis Business Association

Villa Noble

Where Eagles Fly
The Woods WeHo

REGISTERED OPPOSITION:

American Cancer Society Cancer Action Network INC.

American Heart Association

American Lung Association in California

Public Health Institute

Tobacco - Free Kids Action Fund

Analysis Prepared by: Robert Sumner / B. & P. / (916) 319-3301

1. Identical language was previously included in regulations promulgated by the Bureau of Cannabis Control. ↑

 THIRD READING  

Bill No: SB 285

Author: Allen (D)

Amended: 4/11/23

Vote: 21

SENATE BUS., PROF. & ECON. DEV. COMMITTEE: 12-1, 4/17/23

AYES: Roth, Alvarado-Gil, Archuleta, Ashby, Becker, Dodd, Eggman, Glazer, Niello, Smallwood-Cuevas, Wahab, Wilk

NOES: Nguyen

SUBJECT: Cannabis: retail preparation, sale, and consumption of noncannabis food and beverage products

SOURCE: Author

DIGEST:

This bill authorizes a licensed cannabis retailer or microbusiness to prepare or sell non-cannabis non-alcoholic food or beverage products, in compliance with retail food code requirements, where the consumption of cannabis is currently allowed and in accordance with local requirements. Permits a licensed cannabis retailer to sell non-cannabis prepackaged food and beverages, as specified

ANALYSIS:

Existing law:

1. Enacts the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA) to provide for a comprehensive regulatory framework for the cultivation, distribution, transport, storage, manufacturing, processing, and sale of medicinal and adult-use cannabis. (Business and Professions Code (BPC) §§ 26000 et seq.)
2. Establishes the Department of Cannabis Control (DCC) to regulate cannabis with the sole authority to create, issue, deny, renew, discipline, suspend, or revoke licenses for microbusinesses, transportation, storage unrelated to manufacturing activities, distribution, testing, and sale of cannabis and cannabis products within the state. Requires the DCC to administer the portions of MAUCRSA related to and associated with the cultivation of cannabis and with the manufacturing of cannabis products. Delegates to the DCC authority to create, issue, deny, and suspend or revoke cultivation or manufacturing licenses for violations of MAUCRSA. (BPC §§ 26010, 26012)
3. Expresses that state cannabis laws shall not be interpreted to supersede or limit the authority of a local jurisdiction to adopt and enforce local ordinances to regulate cannabis businesses. (BPC § 26200(a))
4. Authorizes a local jurisdiction to allow for the smoking, vaporizing, and ingesting of cannabis or cannabis products on the premises of a licensed retailer or microbusiness if all of the following are met:
   
   1. Access to the area where cannabis consumption is allowed is restricted to persons 21 years of age or older.
   2. Cannabis consumption is not visible from any public place or nonage-restricted area.
   3. Sale or consumption of alcohol or tobacco is not allowed on the premises. (BPC § 26200(g))
      
5. Establishes the retail food code for the purpose of safeguarding public health and providing to consumers food that is safe, unadulterated, and honestly presented through adoption of science-based standards. (Health and Safety Code § 113700 et seq.)
   
6. Permits a licensed retailer or licensed microbusiness authorized for retail sales who operates a consumption area on the licensed premises, as specified, to also sell prepackaged, non-cannabis-infused, non-alcoholic food and beverages if the applicable local jurisdiction allows such sales. (Title TBD California Code of Regulations §15407).
   

This bill:

1. Permits the preparation or sale of noncannabis food or beverage products in compliance with all applicable provisions of the retail food code by a licensed cannabis retailer or microbusiness in the area where the consumption of cannabis is allowed.
   
2. Specifies that the activities in 1) above must be granted authority from a local jurisdiction, and are only authorized if access to the area where cannabis consumption is allowed is restricted to persons 21 years of age or older, if cannabis consumption is not visible from any public place or nonage-restricted area, and if the sale or consumption of alcohol or tobacco is not allowed on the premises.
   
3. Authorizes a local jurisdiction to allow for the sale of prepackaged, noncannabis-infused, nonalcoholic food and beverages by a licensed retailer.

Background

Cannabis Regulations and Cannabis Consumption. MAUCRSA generally prohibits smoking, vaporizing, or ingesting cannabis or cannabis products in any public place. However, Proposition 64 authorized local jurisdictions to allow for the smoking, vaporizing, and ingesting of cannabis or cannabis products on the premises of a retailer or microbusiness licensed under certain conditions. This language gave cities and counties the option of locally authorizing the establishment of settings like lounges or areas where cannabis use can occur socially.

Until last year, cannabis retailers who were permitted by their local jurisdictions to operate a consumption lounge or consumption area were not permitted to sell non-alcoholic prepackaged food or beverages. In November of 2022, the DCC revised its regulations to permit cannabis retailers who operate a consumption area to “sell prepackaged, non-cannabis-infused, non-alcoholic food and beverages if the applicable local jurisdiction allows such sales.” The regulations further clarified that nothing in regulations prevents consumers from “bringing or receiving non-cannabis-infused, non-alcoholic food and beverages from a restaurant or food delivery service for consumption in the designated consumption area on the licensed premises, if the applicable local jurisdiction allows such activities.”

The DCC’s regulations created a model wherein non-cannabis food and beverages can be sold and consumed in a consumption lounge. However, the law still does not allow cannabis retailers to prepare the food or beverages on the premises. This bill would expand upon the DCC’s current regulations and permit those cannabis retailers who have received local authorization to operate a consumption lounge or consumption area to sell food or beverages that are made on site. The prohibition on alcoholic products at these locations would remain. Additionally, this bill is clear that local jurisdictions must approve the operation of the consumption lounge, which must only be accessible to person 21-years or older, cannabis consumption not be visible from any public place or non-age restricted area. The inspection and oversight of the food sales would remain with local jurisdictions as these areas would be subject to the current provisions of the Retail Food Code, which contains the structural, equipment, and operational requirements for all California retail food facilities.

A “consumption lounge” or “consumption area” in the cannabis space is where a patron can consume authorized cannabis products on site. In order to obtain local approval, the consumption lounge area where cannabis is consumed is restricted to persons 21-years or older, consumption is not visible from any public place, and alcohol sales are prohibited. As noted in a June 21, 2022 New York Times article, “A Growing Number of California Cities Are Opening Weed Cafes” the popularity and interest for local jurisdictions throughout the state to permit specific cannabis lounges is increasing.

Prepackaged Food and Beverage Sales. Separate and apart from the provisions of this bill that would allow locally approved consumption lounges or consumption areas to sell food and beverages made on site, in addition to prepackaged food and beverages, this bill would allow prepackaged, non-alcoholic food and beverages to be sold to consumers at all licensed retailers, regardless if that retailer operates a consumption lounge. In order to sell the prepackaged food, the licensed retailer would need approval from the local jurisdiction. As currently drafted, this bill would not require a licensee to provide notice or any information to the DCC that they are a consumption lounge selling food and beverage or that they are a retailer selling prepackaged food and beverages. Any enforcement related issues to the food and beverage sales would likely be addressed at the local level.

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

SUPPORT: (Verified 4/18/23)

Angeles Emeralds

California Cannabis Industry Association
California Cannabis Manufacturers Association
California Norml
Lompoc Valley Cannabis Association, Santa Barbara County
The Parent Company
The Woods Weho
Villa Noble
Where Eagles Fly LLC Dba Fantom Flower

California Minority Alliance

Coachella Valley Cannabis Alliance

Long Beach Collective Association

San Francisco Cannabis Retailers Alliance

Social Equity Los Angeles

United Cannabis Business Association

OPPOSITION: (Verified 4/18/23)

American Cancer Society Cancer Action Network Inc .
American Heart Association
American Lung Association in California
Tobacco - Free Kids Action Fund

ARGUMENTS IN SUPPORT: Supporters note this bill will provide significant economic opportunities for cannabis retailers, while also promoting increased tourism opportunities for travelers looking to experience California's premium cannabis in a responsible environment.

ARGUMENTS IN OPPOSITION: Opponents note, “In 2016, California passed Proposition 64, legalizing adult use of marijuana. In an effort to continue worker protections, ACS CAN worked closely with the proponents of Prop 64 to ensure that the same safety guidelines were put into place. However, passage of SB 285 will undermine those protections and put thousands of workers are risk by allowing for the preparation and sale of noncannabis food in buildings where smoking and vaping cannabis and cannabis products is allowed.

Prepared by: Elissa Silva / B., P. & E.D. / 916-651-4104

4/19/23 15:20:02

**** END ****

SENATE COMMITTEE ON

BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT

Senator Richard Roth, Chair

2023 - 2024 Regular

Bill No: SB 285 Hearing Date: April 17, 2023

Subject: Cannabis: retail preparation, sale, and consumption of noncannabis food and beverage products

SUMMARY:

Authorizes a licensed cannabis retailer or microbusiness to prepare or sell non-cannabis non-alcoholic food or beverage products, in compliance with retail food code requirements, where the consumption of cannabis is currently allowed and in accordance with local requirements. Permits a licensed cannabis retailer to sell non-cannabis prepackaged food and beverages, as specified.

Existing law:

1. Enacts the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA) to provide for a comprehensive regulatory framework for the cultivation, distribution, transport, storage, manufacturing, processing, and sale of medicinal and adult-use cannabis. (Business and Professions Code (BPC) §§ 26000 et seq.)
2. Establishes the Department of Cannabis Control (DCC) to regulate cannabis with the sole authority to create, issue, deny, renew, discipline, suspend, or revoke licenses for microbusinesses, transportation, storage unrelated to manufacturing activities, distribution, testing, and sale of cannabis and cannabis products within the state. Requires the DCC to administer the portions of MAUCRSA related to and associated with the cultivation of cannabis and with the manufacturing of cannabis products. Delegates to the DCC authority to create, issue, deny, and suspend or revoke cultivation or manufacturing licenses for violations of MAUCRSA. (BPC §§ 26010, 26012)
3. Provides for twenty total types of cannabis licenses including subtypes for cultivation, manufacturing, testing, retail, distribution, and microbusiness; requires each licensee except for testing laboratories to clearly designate whether their license is for adult-use or medicinal cannabis. (BPC § 26050)
4. Establishes grounds for disciplinary action against cannabis licensees, including failures to comply with state licensing requirements as well as local laws and ordinances. (BPC § 26030)
5. Subjects cannabis businesses operating without a license to civil penalties of up to three times the amount of the license fee for each violation in addition to any criminal penalties. (BPC § 26038)
6. Expresses that state cannabis laws shall not be interpreted to supersede or limit the authority of a local jurisdiction to adopt and enforce local ordinances to regulate cannabis businesses. (BPC § 26200(a))
7. Authorizes a local jurisdiction to allow for the smoking, vaporizing, and ingesting of cannabis or cannabis products on the premises of a licensed retailer or microbusiness if all of the following are met:
   
   1. Access to the area where cannabis consumption is allowed is restricted to persons 21 years of age or older.
   2. Cannabis consumption is not visible from any public place or nonage-restricted area.
   3. Sale or consumption of alcohol or tobacco is not allowed on the premises. (BPC § 26200(g))
      
8. Establishes the retail food code for the purpose of safeguarding public health and providing to consumers food that is safe, unadulterated, and honestly presented through adoption of science-based standards. (Health and Safety Code § 113700 et seq.)
   
9. Permits a licensed retailer or licensed microbusiness authorized for retail sales who operates a consumption area on the licensed premises, as specified, to also sell prepackaged, non-cannabis-infused, non-alcoholic food and beverages if the applicable local jurisdiction allows such sales. (Title TBD California Code of Regulations §15407).
   
10. States that noting shall be interpreted to prevent consumers from bringing or receiving non-cannabis-infused, non-alcoholic food and beverages from a restaurant or food delivery service for consumption in the designated consumption area on the licensed premises, if the applicable local jurisdiction allows such activities. (Title TBD California Code of Regulations §15407).

This bill:

1. Permits the preparation or sale of noncannabis food or beverage products in compliance with all applicable provisions of the retail food code by a licensed cannabis retailer or microbusiness in the area where the consumption of cannabis is allowed.
   
2. Specifies that the activities in 1) above must be granted authority from a local jurisdiction, and are only authorized if access to the area where cannabis consumption is allowed is restricted to persons 21 years of age or older, if cannabis consumption is not visible from any public place or nonage-restricted area, and if the sale or consumption of alcohol or tobacco is not allowed on the premises.
   
3. Authorizes a local jurisdiction to allow for the sale of prepackaged, noncannabis-infused, nonalcoholic food and beverages by a licensed retailer.

FISCAL EFFECT:

Unknown. This bill not keyed fiscal by Legislative Counsel.

COMMENTS:

1. Purpose. The author is the sponsor of this bill. According to the author, “Due to the above noted DCC regulations, cannabis consumption lounges are unable to prepare or serve non-cannabis food, limiting their options to the sale of pre-packaged food items only. This inherently puts cannabis consumption lounges at a disadvantage to other nightlife or similar businesses, specifically bars and restaurants, who provide guests with experiences to enjoy both alcoholic beverages and fresh-made meals. SB 285 would expand this limitation from pre-packaged items to include fresh-made food while continuing to respect local control as mentioned in the regulation.”
2. Background.

Cannabis Regulations and Cannabis Consumption. Shortly following the passage of Medical Marijuana Regulation and Safety Act (later renamed to the Medical Cannabis Regulation and Safety Act in November 2016, California voters passed Proposition 64, the “Control, Regulate and Tax Adult Use of Marijuana Act” (Prop 64), which decriminalized and legalized adult-use cannabis. Less than a year later in June 2017, the California State Legislature passed a budget trailer bill, SB 94 (Committee on Budget and Fiscal Review, Chapter 27, Statutes of 2017), that integrated MCRSA with Prop 64 to create the Medical and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA), the current regulatory structure for both medicinal and adult-use cannabis.

MAUCRSA generally prohibits smoking, vaporizing, or ingesting cannabis or cannabis products in any public place. However, Proposition 64 authorized local jurisdictions to allow for the smoking, vaporizing, and ingesting of cannabis or cannabis products on the premises of a retailer or microbusiness licensed under certain conditions. This language gave cities and counties the option of locally authorizing the establishment of settings like lounges or areas where cannabis use can occur socially.

Until last year, cannabis retailers who were permitted by their local jurisdictions to operate a consumption lounge or consumption area were not permitted to sell non-alcoholic prepackaged food or beverages. In November of 2022, the DCC revised its regulations to permit cannabis retailers who operate a consumption area to “sell prepackaged, non-cannabis-infused, non-alcoholic food and beverages if the applicable local jurisdiction allows such sales.”

The regulations further clarified that nothing in regulations prevents consumers from “bringing or receiving non-cannabis-infused, non-alcoholic food and beverages from a restaurant or food delivery service for consumption in the designated consumption area on the licensed premises, if the applicable local jurisdiction allows such activities.”

The DCC’s regulations created a model wherein non-cannabis food and beverages can be sold and consumed in a consumption lounge. However, the law still does not allow cannabis retailers to prepare the food or beverages on the premises. This bill would expand upon the DCC’s current regulations and permit those cannabis retailers who have received local authorization to operate a consumption lounge or consumption area to sell food or beverages that are made on site. The prohibition on alcoholic products at these locations would remain. Additionally, this bill is clear that local jurisdictions must approve the operation of the consumption lounge, which must only be accessible to person 21-years or older, cannabis consumption not be visible from any public place or non-age restricted area. The inspection and oversight of the food sales would remain with local jurisdictions as these areas would be subject to the current provisions of the Retail Food Code, which contains the structural, equipment, and operational requirements for all California retail food facilities. Provisions of the California Retail Food Code are primarily enforced by 62 local environmental health regulatory agencies.

A “consumption lounge” or “consumption area” in the cannabis space is where a patron can consume authorized cannabis products on site. In order to obtain local approval, the consumption lounge area where cannabis is consumed is restricted to persons 21-years or older, consumption is not visible from any public place, and alcohol sales are prohibited. As noted in a June 21, 2022 New York Times article, “A Growing Number of California Cities Are Opening Weed Cafes” the popularity and interest for local jurisdictions throughout the state to permit specific cannabis lounges is increasing.

Local jurisdictions. The City of West Hollywood was the leader in the consumption lounge model. On November 20, 2017, the West Hollywood City Council adopted a Cannabis Ordinance providing local authorization for a variety of different licensed cannabis businesses. This included two types of consumption lounges: one featuring only edible cannabis products, and the other allowing smoking, vaping, and edibles.

Currently there are a number of jurisdictions that permit consumption lounges to operate as part of their cannabis regulatory program, including, but not limited to, San Francisco, Oakland, Alameda, Palm Springs, Cathedral City, Sacramento, Ukiah, Cloverdale, Arcata, Fortuna, Ft. Bragg. However, as noted, those venues are limited in their ability to sell or provide food or beverages prepared onsite to consumers while there. This bill would not require consumption lounges offer food, and leaves it open to local jurisdiction authorization and oversight.

Prepackaged Food and Beverage Sales. Separate and apart from the provisions of this bill that would allow locally approved consumption lounges or consumption areas to sell food and beverages made on site, in addition to prepackaged food and beverages, this bill would allow prepackaged, non-alcoholic food and beverages to be sold to consumers at all licensed retailers, regardless if that retailer operates a consumption lounge. In order to sell the prepackaged food, the licensed retailer would need approval from the local jurisdiction. As currently drafted, this bill would not require a licensee to provide notice or any information to the DCC that they are a consumption lounge selling food and beverage or that they are a retailer selling prepackaged food and beverages. Any enforcement related issues to the food and beverage sales would likely be addressed at the local level.

1. Related Legislation. AB 374 (Haney) of 2023 authorizes local jurisdictions to allow cannabis retailers to conduct business activities unrelated to cannabis on their premises, including, but not limited to, non-cannabis food and beverage sales and live musical or other performances. (Status: This bill is pending in the Assembly Committee on Governmental Organization)

AB 1034 (Bloom) of 2021, would have authorized a local jurisdiction to allow for the preparation or sale of noncannabis food or beverage products by a licensed cannabis retailer or microbusiness in an area where the consumption of cannabis is allowed. (Status: This bill failed passage in this Committee)

AB 2020 (Quirk, Chapter 749, Statutes of 2018) authorized a local jurisdiction to allow for the smoking, vaporizing, and ingesting of cannabis or cannabis products on the premises of a licensed retailer or microbusiness, under the following circumstances: a) access to the area where cannabis consumption is allowed is restricted to persons 21 years of age or older; b) cannabis consumption is not visible from any public place or nonage-restricted area; c) sale or consumption of alcohol or tobacco is not allowed on the premises.

AB 1465 (Bloom) of 2019 would have created a new cannabis license type for a “consumption cafe/lounge,” in which customers may consume cannabis and cannabis products onsite within an establishment that may prepare and sell noncannabis products. (Status: This bill was held under submission in the Assembly Appropriations Committee.)

1. Arguments in Support. The California Cannabis Manufacturers Association writes in support, “Many California cannabis consumption lounges need the right to be able to prepare or sell non cannabis-infused food and non-alcoholic beverages in their lounges as a matter of operational viability.”

California NORML writes in support, “The current legal prohibition on fresh refreshments and entertainment is arbitrary and unwarranted, with no logical backing from an economic, health, or safety standpoint. SB 285 would give local governments the power to opt out of such restrictions if they want to. In addition to serving local residents, cannabis cafes could offer an attractive source of tourist revenue to localities that want them.”

Good Farmers and Great Neighbors writes in support, “SB 285 - is another progressive step forward to enhance local jurisdictions to collaboratively work with existing cannabis businesses and tourism organizations to allow cannabis consumption lounges to prepare and serve non-cannabis-infused, non-alcoholic beverages and food to its customers.”

The Woods WEHO writes in support, “Regarding the implications of SB 285 for The Woods WeHo, the bill will allow us to diversify our business operations by providing unpackaged non-cannabis infused food and non-alcoholic beverages. If approved, the bill will allow us to operate more inclusively as we will provide unpackaged, fresh, non-cannabis infused food products and non-alcoholic beverages to patrons who otherwise would not visit our cannabis consumption lounge.”

The Fantom Flower writes in support, “As a consumption lounge in West Hollywood, we understand that SB 285 is taking an imperative step forward in stabilizing the framework of the cannabis industry here in California. With these adjustments to the current regulations, cannabis consumption businesses like our own, Fantom Flower will be able to provide a full service experience to our customers and would ultimately be able to contribute more taxes and jobs to the city and state economies.”

United Cannabis Business Association, Coachella Valley Cannabis Alliance, California Minority Alliance, Long Beach Collective Association, Social Equity Los Angeles, San Francisco Cannabis Retailers Alliance, and Angeles Emeralds write in support and note, “We strongly believe that SB 285 will provide significant economic opportunities for cannabis retailers to become more viable businesses in a challenging economic climate, while also promoting increased tourism opportunities for travelers looking to experience California's premium cannabis in a responsible environment. Additionally, it recognizes the existing culture of cannabis consumption with food and drinks, and provides legislative clarity on what items may be sold by retailers.”

1. Arguments in Opposition. The American Cancer Society Cancer Action Network, the American Heart Association, the American Lung Association and the Campaign for Tobacco Free Kids write in opposition and note, “In 2016, California passed Proposition 64, legalizing adult use of marijuana. In an effort to continue worker protections, ACS CAN worked closely with the proponents of Prop 64 to ensure that the same safety guidelines were put into place. However, passage of SB 285 will undermine those protections and put thousands of workers are risk by allowing for the preparation and sale of noncannabis food in buildings where smoking and vaping cannabis and cannabis products is allowed.
2. Policy Consideration: DCC oversight. Currently, licensees who operate a consumption lounge are permitted through their local jurisdiction to do so, the DCC is not aware of licensees who operate such lounges. Would it beneficial for the DCC to know which licensees are operating consumption lounges? Might this information be beneficial if the DCC receives complaints or is conducting an inspection of sites?

SUPPORT AND OPPOSITION:

Support:

Angeles Emeralds

California Cannabis Industry Association
California Cannabis Manufacturers Association
California Norml (UNREG)
Lompoc Valley Cannabis Association, Santa Barbara County
The Parent Company
The Woods Weho
Villa Noble
Where Eagles Fly LLC Dba Fantom Flower

California Minority Alliance

Coachella Valley Cannabis Alliance

Long Beach Collective Association

San Francisco Cannabis Retailers Alliance

Social Equity Los Angeles

United Cannabis Business Association

Opposition:

American Cancer Society Cancer Action Network INC.
American Heart Association
American Lung Association in California
Tobacco - Free Kids Action Fund

-- END --