Bill Text: CA SB519 | 2021-2022 | Regular Session | Amended
Bill Title: Controlled substances: study of decriminalization of certain hallucinogenic substances.
Spectrum: Partisan Bill (Democrat 7-0)
Status: (Engrossed - Dead) 2022-08-25 - Ordered to inactive file on request of Assembly Member Reyes. [SB519 Detail]
Download: California-2021-SB519-Amended.html
Amended
IN
Senate
May 20, 2021 |
Amended
IN
Senate
April 15, 2021 |
Amended
IN
Senate
March 25, 2021 |
Introduced by Senator Wiener (Coauthors: Senators Kamlager and Newman) (Coauthors: Assembly Members Low and Quirk) |
February 17, 2021 |
LEGISLATIVE COUNSEL'S DIGEST
The bill would also provide for the dismissal and sealing of pending and prior convictions
for offenses that would be made lawful by the passage of this bill, as specified. The bill would require the Department of Justice to identify those records and provide them to local jurisdictions to initiate the required proceedings.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YESBill Text
The people of the State of California do enact as follows:
SECTION 1.
The Legislature finds and declares all of the following:SEC. 2.
Section 11054 of the Health and Safety Code is amended to read:11054.
(a) The controlled substances listed in this section are included in Schedule I.SEC. 3.
Section 11150.2 of the Health and Safety Code is amended to read:11150.2.
(a) Notwithstanding any other law, if cannabidiol is excluded from Schedule I of the federal Controlled Substances Act and placed on a schedule of the act other than Schedule I, or if a product composed of cannabidiol is approved by the federal Food and Drug Administration and either placed on a schedule of the act other than Schedule I, or exempted from one or more provisions of the act, so as to permit a physician, pharmacist, or other authorized healing arts licensee acting within their scope of practice, to prescribe, furnish, or dispense that product, the physician, pharmacist, or other authorized healing arts licensee who prescribes, furnishes, or dispenses that product in accordance with federal law shall be deemed to be in compliance with state law governing those acts.SEC. 4.
Section 11350 of the Health and Safety Code is amended to read:11350.
(a) Except as otherwise provided in this division, every person who possesses (1) any controlled substance specified in subdivision (b), (c), (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (15) or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in a county jail for not more than one year, except that such person shall instead be punished pursuant to subdivision (h) of Section 1170 of the Penal Code if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code or for an offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code.SEC. 5.
Section 11350.1 is added to the Health and Safety Code, to read:11350.1.
(a) Except as otherwise provided in subdivisions (b), (c), (d), and (e) of this section and notwithstanding any other law, all of the following shall be lawful for a natural person 21 years of age or older and shall not be a violation of state or local law:(a)A person currently serving a sentence for a conviction, whether by trial or by open or negotiated plea, who would not have been guilty under Section 11350.1 or 11402 had those sections been in effect at the time of the offense may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in the case to request resentencing or dismissal in accordance with those sections.
(b)Upon receiving a petition under subdivision (a), the court shall presume the petitioner satisfies the criteria in subdivision (a) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not
satisfy the criteria. If the petitioner satisfies the criteria in subdivision (a), the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety.
(1)In exercising its discretion, the court may consider, but shall not be limited to evidence provided for in subdivision (b) of Section 1170.18 of the Penal Code.
(2)As used in this section, “unreasonable risk of danger to public safety” has the same meaning as provided in subdivision (c) of Section 1170.18 of the Penal Code.
(c)A person who is serving a sentence and is resentenced pursuant to subdivision
(b) shall be given credit for any time already served and shall be subject to supervision for one year following completion of their time in custody or shall be subject to whatever supervision time they would have otherwise been subject to after release, whichever is shorter, unless the court, in its discretion, as part of its resentencing order, releases the person from supervision. In that case, the person is subject to parole supervision under Section 3000.08 of the Penal Code or postrelease community supervision under subdivision (a) of Section 3451 of the Penal Code by the designated agency and the jurisdiction of the court in the county in which the offender is released or resides, or in which an alleged violation of supervision has occurred, for the purpose of hearing petitions to revoke supervision and impose a term of custody.
(d)Under no circumstances may resentencing under this section result in the imposition of a term longer than the original sentence, or the reinstatement of charges dismissed pursuant to a negotiated plea agreement.
(e)A person who has completed their sentence for a conviction under this article or Chapter 6.5 (commencing with Section 11400), whether by trial or open or negotiated plea, who would not have been guilty of an offense or who would have been guilty of a lesser offense under Section 11350.1 or 11402 had those sections been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in their case to have the conviction dismissed and sealed because the prior conviction is now legally invalid.
(f)The court shall presume the petitioner satisfies the criteria in subdivision (e) unless the party opposing the application proves by clear and convincing evidence that the petitioner does not satisfy the criteria in subdivision (e). Once the applicant satisfies the criteria in subdivision (e), the court shall redesignate the conviction as a misdemeanor or infraction or dismiss and seal the conviction as legally invalid as established under Sections 11350.1 and 11402.
(g)Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subdivision (e).
(h)If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application.
(i)Nothing in this section is intended to diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant.
(j)Nothing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of Section 11350.1 or 11402.
(k)A resentencing hearing ordered under this section shall constitute a “postconviction release proceeding” under paragraph (7) of subdivision (b) of Section 28 of Article I of the California Constitution (Marsy’s Law).
(l)The provisions of this section shall apply equally to juvenile delinquency adjudications and dispositions under Section 602 of the
Welfare and Institutions Code if the juvenile would not have been guilty of an offense under Section 11350.1 or 11402.
(m)The Judicial Council shall promulgate and make available all necessary forms to enable the filing of the petitions and applications provided in this section.
(a)On or before July 1, 2022, the Department of Justice shall review the records in the state summary criminal history information database and shall identify past convictions that are potentially eligible for recall or dismissal of sentence or dismissal and sealing, pursuant to Section 11356.8. The department shall notify the prosecution of all cases in their jurisdiction that are eligible for recall or dismissal of sentence or dismissal and sealing.
(b)The prosecution shall have until July 1, 2023, to review all cases and determine whether to challenge the recall or dismissal of sentence or dismissal and sealing.
(c)(1)The prosecution may challenge the resentencing of a person pursuant to this section when the person does not meet the criteria established in Section 11356.8 or presents an unreasonable risk to public safety.
(2)The prosecution may challenge the dismissal and sealing of a person pursuant to this section who has completed their sentence for a conviction when the person does not meet the criteria established in Section 11356.8.
(3)On or before July 1, 2023, the prosecution shall inform the court and the public defender’s office in their county when they are challenging a particular recall or dismissal of sentence or dismissal and sealing. The prosecution shall inform the court when they are not challenging a particular recall or dismissal of
sentence or dismissal and sealing.
(4)The public defender’s office, upon receiving notice from the prosecution pursuant to paragraph (3), shall make a reasonable effort to notify the person whose resentencing or dismissal is being challenged.
(d)If the prosecution does not challenge the recall or dismissal of sentence or dismissal and sealing by July 1, 2023, the court shall reduce or dismiss the conviction pursuant to Section 11356.8.
(e)The court shall notify the department of the recall or dismissal of sentence or dismissal and sealing and the department shall modify the state summary criminal history information database accordingly.
(f)The
department shall post general information on its internet website about the recall or dismissal of sentences or dismissal and sealing authorized in this section.
(g)It is the intent of the Legislature that persons who are currently serving a sentence or who proactively petition for a recall or dismissal of sentence or dismissal and sealing pursuant to Section 11356.8 be prioritized for review.
SEC. 8.SEC. 6.
Section 11364 of the Health and Safety Code is amended to read:11364.
(a) It is unlawful to possess an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking (1) a controlled substance specified in subdivision (b), (c), or (e) or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (15) or (20) of subdivision (d) of Section 11054, specified in subdivision (b) or (c) of Section 11055, or specified in paragraph (2) of subdivision (d) of Section 11055, or (2) a controlled substance that is a narcotic drug classified in Schedule III, IV, or V.SEC. 9.SEC. 7.
Section 11364.7 of the Health and Safety Code is amended to read:11364.7.
(a) (1) Except as authorized by law, any person who delivers, furnishes, or transfers, possesses with intent to deliver, furnish, or transfer, or manufactures with the intent to deliver, furnish, or transfer, drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, compound, convert, produce, process, prepare, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance, except as provided in subdivision (b), in violation of this division, is guilty of a misdemeanor.SEC. 10.SEC. 8.
Section 11365 of the Health and Safety Code is amended to read:11365.
(a) It is unlawful to visit or to be in any room or place where any controlled substances which are specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (15) or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) or paragraph (2) of subdivision (d) of Section 11055, or which are narcotic drugs classified in Schedule III, IV, or V, are being unlawfully smoked or used with knowledge that such activity is occurring.SEC. 11.SEC. 9.
Section 11377 of the Health and Safety Code is amended to read:11377.
(a) Except as authorized by law and as otherwise provided in subdivision (b) or Section 11375, or in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who possesses any controlled substance which is (1) classified in Schedule III, IV, or V, and which is not a narcotic drug, except the substance specified in subdivision (g) of Section 11056, (2) specified in subdivision (d) of Section 11054, except paragraphs (10), (11), (12), (13), (14), (15), (18), (19), and (20) of subdivision (d), (3) specified in paragraph (11) of subdivision (c) of Section 11056, (4) specified in paragraph (2) or (3) of subdivision (f) of Section 11054, or (5) specified in subdivision (d), (e), or (f) of Section 11055, unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, shall be punished by imprisonment in a county jail for a period of not more than one year, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 of the Penal Code if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code or for an offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code.SEC. 12.SEC. 10.
Section 11377.1 is added to the Health and Safety Code, to read:11377.1.
(a) Except as otherwise provided in Sections 11377.5 and subdivisions (b), (c), (d), and (e) of this section, and notwithstanding any other law, all of the following shall be lawful for a natural person 21 years of age or older and shall not be a violation of state or local law:SEC. 13.SEC. 11.
Section 11379 of the Health and Safety Code is amended to read:11379.
(a) Except as otherwise provided in subdivision (b), in Section 11377.1, and in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any controlled substance which is (1) classified in Schedule III, IV, or V and which is not a narcotic drug, except subdivision (g) of Section 11056, (2) specified in subdivision (d) of Section 11054, except paragraphs (13), (14), (15), (20), (21), (22), and (23) of subdivision (d), (3) specified in paragraph (11) of subdivision (c) of Section 11056, (4) specified in paragraph (2) or (3) of subdivision (f) of Section 11054, or (5) specified in subdivision (d) or (e), except paragraph (3) of subdivision (e), or specified in subparagraph (A) of paragraph (1) of subdivision (f), of Section 11055, unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for a period of two, three, or four years.SEC. 14.SEC. 12.
Section 11379.2 of the Health and Safety Code is amended to read:11379.2.
Except as otherwise provided in Section 11377.1 and in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who possesses for sale or sells any controlled substance specified in subdivision (g) of Section 11056 shall be punished by imprisonment in the county jail for a period of not more than one year or in the state prison.SEC. 15.SEC. 13.
Section 11382 of the Health and Safety Code is amended to read:11382.
Except as otherwise provided in Section 11377.1, every person who agrees, consents, or in any manner offers to unlawfully sell, furnish, transport, administer, or give any controlled substance which is (a) classified in Schedule III, IV, or V and which is not a narcotic drug, or (b) specified in subdivision (d) of Section 11054, except paragraphs (13), (14), (15), and (20) of subdivision (d), specified in paragraph (11) of subdivision (c) of Section 11056, or specified in subdivision (d), (e), or (f) of Section 11055, to any person, or offers, arranges, or negotiates to have that controlled substance unlawfully sold, delivered, transported, furnished, administered, or given to any person and then sells, delivers, furnishes, transports, administers, or gives, or offers, or arranges, or negotiates to have sold, delivered, transported, furnished, administered, or given to any person any other liquid, substance, or material in lieu of that controlled substance shall be punished by imprisonment in the county jail for not more than one year, or pursuant to subdivision (h) of Section 1170 of the Penal Code.(a)A person currently serving a sentence for a conviction, whether by trial or by open or negotiated plea, who would not have been guilty under Section 11377.1, had those sections been in effect at the time of the offense may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in the case to request resentencing or dismissal in accordance with those sections.
(b)Upon receiving a petition under subdivision (a), the court shall presume the petitioner satisfies the criteria in subdivision (a) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the
criteria. If the petitioner satisfies the criteria in subdivision (a), the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety.
(1)In exercising its discretion, the court may consider, but shall not be limited to evidence provided for in subdivision (b) of Section 1170.18 of the Penal Code.
(2)As used in this section, “unreasonable risk of danger to public safety” has the same meaning as provided in subdivision (c) of Section 1170.18 of the Penal Code.
(c)A person who is serving a sentence and is resentenced pursuant to subdivision (b) shall be
given credit for any time already served and shall be subject to supervision for one year following completion of their time in custody or shall be subject to whatever supervision time they would have otherwise been subject to after release, whichever is shorter, unless the court, in its discretion, as part of its resentencing order, releases the person from supervision. In that case, the person is subject to parole supervision under Section 3000.08 of the Penal Code or postrelease community supervision under subdivision (a) of Section 3451 of the Penal Code by the designated agency and the jurisdiction of the court in the county in which the offender is released or resides, or in which an alleged violation of supervision has occurred, for the purpose of hearing petitions to revoke supervision and impose a term of custody.
(d)Under
no circumstances may resentencing under this section result in the imposition of a term longer than the original sentence, or the reinstatement of charges dismissed pursuant to a negotiated plea agreement.
(e)A person who has completed their sentence for a conviction under this article or former Article 7 (commencing with Section 11390), whether by trial or open or negotiated plea, who would not have been guilty of an offense or who would have been guilty of a lesser offense under Section 11377.1, had those sections been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in their case to have the conviction dismissed and sealed because the prior conviction is now legally invalid.
(f)The court shall
presume the petitioner satisfies the criteria in subdivision (e) unless the party opposing the application proves by clear and convincing evidence that the petitioner does not satisfy the criteria in subdivision (e). Once the applicant satisfies the criteria in subdivision (e), the court shall redesignate the conviction as a misdemeanor or infraction or dismiss and seal the conviction as legally invalid as now established under Section 11377.1.
(g)Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subdivision (e).
(h)If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application.
(i)Nothing in this section is intended to diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant.
(j)Nothing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of Section 11377.1.
(k)A resentencing hearing ordered under this section shall
constitute a “postconviction release proceeding” under paragraph (7) of subdivision (b) of Section 28 of Article I of the California Constitution (Marsy’s Law).
(l)The provisions of this section shall apply equally to juvenile delinquency adjudications and dispositions under Section 602 of the Welfare and Institutions Code if the juvenile would not have been guilty of an offense under Section 11377.1.
(m)The Judicial Council shall promulgate and make available all necessary forms to enable the filing of the petitions and applications provided in this section.
(a)On or before July 1, 2022, the Department of Justice shall review the records in the state summary criminal history information database and shall identify past convictions that are potentially eligible for recall or dismissal of sentence or dismissal and sealing, pursuant to Section 11382.8. The department shall notify the prosecution of all cases in their jurisdiction that are eligible for recall or dismissal of sentence or dismissal and sealing.
(b)The prosecution shall have until July 1, 2023, to review all cases and determine whether to challenge the recall or dismissal of sentence or dismissal and sealing.
(c)(1)The prosecution may challenge the resentencing of a person pursuant to this section when the person does not meet the criteria established in Section 11382.8 or presents an unreasonable risk to public safety.
(2)The prosecution may challenge the dismissal and sealing of a person pursuant to this section who has completed their sentence for a conviction when the person does not meet the criteria established in Section 11382.8.
(3)On or before July 1, 2023, the prosecution shall inform the court and the public defender’s office in their county when they are challenging a particular recall or dismissal of sentence or dismissal and sealing. The prosecution shall inform the court when they are not challenging a particular recall or dismissal of sentence or
dismissal and sealing.
(4)The public defender’s office, upon receiving notice from the prosecution pursuant to paragraph (3), shall make a reasonable effort to notify the person whose resentencing or dismissal is being challenged.
(d)If the prosecution does not challenge the recall or dismissal of sentence or dismissal and sealing by July 1, 2023, the court shall reduce or dismiss the conviction pursuant to Section 11382.8.
(e)The court shall notify the department of the recall or dismissal of sentence or dismissal and sealing and the department shall modify the state summary criminal history information database accordingly.
(f)The department shall post
general information on its internet website about the recall or dismissal of sentences or dismissal and sealing authorized in this section.
(g)It is the intent of the Legislature that persons who are currently serving a sentence or who proactively petition for a recall or dismissal of sentence or dismissal and sealing pursuant to Section 11382.8 be prioritized for review.