SENATE RULES COMMITTEE
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SB 212
THIRD READING
Bill No:
Author:
Amended:
Vote:
SB 212
Mendoza (D)
6/2/15
21
SENATE PUBLIC SAFETY COMMITTEE: 6-0, 4/14/15
AYES: Hancock, Anderson, Leno, McGuire, Monning, Stone
NO VOTE RECORDED: Liu
SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/28/15
AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen
SUBJECT: Controlled substances: factors in aggravation
SOURCE: Author
DIGEST: This bill: 1) provides that where a defendant is convicted of
manufacturing methamphetamine or concentrated cannabis by chemical extraction
or synthesis, the court may consider as a factor in aggravation the fact that the
crime was committed within 200 feet of an occupied residence or any structure
where another person was present at the time the offense was committed in the
case of methamphetamine; and 2) where the defendant manufactured concentrated
cannabis by such a method, the factor in aggravation may apply if the crime was
committed within 300 feet of an occupied residence or any structure where another
person was present at the time the offense was committed.
ANALYSIS:
Existing law:
1) Classifies controlled substances in five schedules according to their medical
utility and potential for abuse. Schedule I controlled substances are deemed to
have no accepted medical uses and cannot be prescribed. Examples of drugs in
the California Schedule include the following:
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a) Cocaine, heroin and marijuana are Schedule I drugs.
b) Methamphetamine, oxycodone and codeine are Schedule II drugs.
c) Barbiturates (tranquilizers, anabolic steroids and specified narcotic, pain
medications are Schedule III drugs.
d) Benzodiazepines (Valium) and phentermine (diet drug) are Schedule IV
drugs.
e) Specified narcotic pain medications with active non-narcotic active
ingredients are Schedule V drugs. (Health & Saf. Code §§ 11054-11058.)
2) Provides penalties for possession, possession for purposes of sale, and
manufacturing of controlled substances. (Health & Saf. Code §§ 11350-11401.)
3) Provides that manufacturing any controlled substance by chemical extraction or
synthesis is guilty of a felony, punishable pursuant to Penal Code Section 1170,
subdivision (h) for a term of three, five or seven years and a fine not to exceed
$50,000.
a) The fact that a minor under the age of 16 years resided in a structure in
which methamphetamine was manufactured by chemical extraction or
synthesis is a factor in aggravation, indicating that the defendant should be
sentenced to the upper term of seven years, unless an enhancement of two or
five years is imposed under Section 11397.7 for manufacturing
methamphetamine where a minor under the age of 16 resides or the crime
caused great bodily injury to such a child.
b) The sentence for any person who offers to manufacture a controlled
substance by chemical extraction or synthesis is three, four or five years.
c) Fines collected under this section are to be transferred to the State Treasurer
for deposit in the Drug Lab Clean-up Account. (Health & Saf. Code §
11379.6.)
This bill:
1) Provides that where a defendant is convicted of manufacturing
methamphetamine by chemical extraction or synthesis, the court may consider
as a factor in aggravation that the crime was committed within 200 feet of an
occupied residence or any structure where another person was present at the
time the offense was committed.
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2) Provides that where the defendant manufactured concentrated cannabis by such
a method, the court may consider as a factor in aggravation that the crime was
committed within 300 feet of an occupied residence or any structure where
another person was present at the time the offense was committed.
Background
The dangers of manufacturing methamphetamine are relatively well known. The
manufacturing process can produce explosions, fires and toxic waste. Persons who
live, work, shop or engage in recreation near the site of methamphetamine
manufacturing are placed in danger of injury or illness from the manufacturing
itself and the toxic waste that is often dumped at the place of manufacturing. This
bill authorizes the court to consider that manufacturing occurred within 200 feet of
any place where a person resided or was present at the time of the crime as a factor
in aggravation justifying the upper term. A factor in aggravation is a fact that
demonstrates that the offense committed by the defendant was more egregious than
the average crime involving a violation of the same law. It appears that a
sentencing court could validly rely on the proximity of other persons to the
manufacturing site as an aggravating factor in sentencing a defendant for
manufacturing of methamphetamine.
Concentrated cannabis comes in many forms. Hash oil is generally made by using
a solvent to strip the essential oils from marijuana plant matter. The resulting
material is often described as “honey oil” or “wax,” reflecting the appearance of
the product. A relatively new and popular form of concentrated cannabis is
“butane honey oil” or “BHO.” BHO is commonly made by packing marijuana in a
steel or glass tube, introducing or injecting butane in one end of the tube and
straining the liquid material that emerges from the other end of the tube. The
liquid may be heated – in warm water – to purge the butane. The resulting product
is a resin or oil. Butane is volatile and highly flammable. Using too much heat or
exposing the butane to a spark can cause an explosion, especially inside a structure,
as evaporated butane gas can fill a room. Extracting BHO outside allows the
butane vapors to dissipate into the air. Other solvents – including alcohol – can be
used to produce hash oil.
This bill authorizes the court to consider that the defendant manufactured
concentrated cannabis through the use of a chemical solvent within 300 feet of an
occupied residence or place where others were present at the time of
manufacturing as a factor in aggravation. The 300 feet proximity standard applies
to concentrated cannabis manufacturing by chemical extraction because explosions
from that process can be quite powerful. BHO manufacturing explosion can
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severely damage or destroy the place of manufacturing, severely damage nearby
structures and injure or kill nearby persons. Where property is damaged or persons
are injured or killed, additional charges and penalties would apply. This bill
addresses the dangers presented by manufacturing concentrated cannabis through
use of a chemical solvent, not actual damage caused by the process.
FISCAL EFFECT: Appropriation: No
Fiscal Com.:
Yes
Local: Yes
According to the Senate Appropriations Committee, this bill has no fiscal impact.
SUPPORT: (6/1/15)
Alameda County District Attorney
Association for Los Angeles Deputy Sheriffs
California Association of Code Enforcement Officers
California College and University Police Chiefs Association
California Contract Cities Association
California Narcotic Officers Association
California Peace Officers Association
California Professional Firefighters
California State Sheriffs’ Association
Chief Probation Officers of California
Crime Victims United of California
Los Angeles Police Protective League
Riverside Sheriffs’ Association
OPPOSITION: (6/1/15)
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Drug Policy Alliance
Prepared by: Jerome McGuire / PUB. S. /
6/2/15 12:22:51
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