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SB-21 Controlled substances.(2023-2024)



Current Version: 05/02/24 - Amended Assembly

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SB21:v96#DOCUMENT

Amended  IN  Assembly  May 02, 2024
Amended  IN  Assembly  January 17, 2024
Amended  IN  Senate  February 23, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Senate Bill
No. 21

Introduced by Senator Umberg
(Principal coauthor: Senator Ochoa Bogh)
(Principal coauthor: Assembly Member Pacheco)
(Coauthors: Senators Alvarado-Gil, Archuleta, Ashby, Dahle, Dodd, Glazer, Jones, Niello, Rubio, Seyarto, and Wilk)
(Coauthors: Assembly Members Chen, Stephanie Nguyen, Petrie-Norris, and Blanca Rubio)

December 05, 2022

An act to add Section 11369 to the Health and Safety Code, relating to controlled substances, and declaring the urgency thereof, to take effect immediately.


LEGISLATIVE COUNSEL'S DIGEST


SB 21, as amended, Umberg. Controlled substances.
Existing law makes it a crime to possess for sale or purchase for purpose of sale, transport, or sell, various controlled substances, including, among others, fentanyl. Existing law requires the court, when granting probation after conviction of any controlled substance offense, as specified, to order as a condition of probation that the defendant secure education or treatment from a local community agency and requires the court or probation department to refer defendants to controlled substance education or treatment programs that adhere to specified standards. Existing law permits a defendant to withdraw their plea of guilty or plea of nolo contendere and enter a plea of not guilty and authorizes a court to set aside a verdict of guilty, if the defendant has met certain requirements.
This bill would require a person who is convicted of, or who pleads guilty or no contest to, the above-described crimes as they relate to fentanyl to receive a written advisory of the danger of distribution of controlled substances and that, if a person dies as a result of that action, the distributor can be charged with homicide or murder. The bill would require that the fact the advisory was given be on the record and recorded on the abstract of the conviction.
This bill would authorize require a defendant who is charged with the above-described crimes to undergo a treatment program in lieu of a grant of probation or a jail or prison sentence if certain conditions are met. The bill would require the treatment program to be developed by a drug addiction expert and would authorize a defendant to participate in a substance abuse and mental health evaluation. The bill would make any statement or information from the evaluation inadmissible in any action or proceeding. The bill would require the drug treatment program to be approved by the court and could include mental health treatment and job training. The bill would require the court to dismiss the charges upon successful completion of the treatment program. to be ordered to complete a substance education or treatment program, as described above, and would state that a defendant who successfully completes an education or treatment program is eligible for the relief described above.

The California Constitution provides for the Right to Truth-in-Evidence, which requires a ⅔ vote of the Legislature to exclude any relevant evidence from any criminal proceeding, as specified.

This bill would make specified statements and information from the evaluation and treatment process from being used as evidence in any subsequent proceedings or actions, thereby requiring a 23 vote.

This bill would declare that it is to take effect immediately as an urgency statute.
Vote: 2/3   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 11369 is added to the Health and Safety Code, to read:

11369.
 (a) This section shall be known, and may be cited, as Alexandra’s Law.
(b) Except as provided in subdivision (c), the court shall advise a person who is convicted of, or who pleads guilty or no contest to, a violation of Section 11351, Section 11352 for transporting, importing, or selling a controlled substance, offering to transport, import, or sell a controlled substance, or attempting to transport, import, or sell a controlled substance, or Section 11379.6, where the substance contained fentanyl or a fentanyl analog, of the following:
“You are hereby advised that all illicit drugs and counterfeit pills are dangerous to human life and become even deadlier when they are, sometimes unknowingly, mixed with substances such as fentanyl and analogs of fentanyl. People can and have died from these substances, even in very small doses. It is extremely dangerous and deadly to human life to sell or administer drugs, in any form, when not lawfully authorized to do so. If you do so in the future and a person dies as a result of that action, and you knew or should have known that the substance you provided contained fentanyl or a fentanyl analog, you may be charged with homicide, up to and including the crime of murder, within the meaning of Section 187 of the Penal Code. In addition, this warning may be considered by a judge or jury as to whether you knew or should have known that the substance you provided to the decedent contained fentanyl.”
(c) This section does not apply to convictions for violations identified in subdivision (b) when a defendant has shown that they exchanged the controlled substance containing fentanyl or its analogs for another controlled substance or alcohol.
(d) The advisory shall be included in a plea form, if used, or the fact that the advisory was given shall be specified on the record.
(e) The fact that the advisory was given shall be recorded in the abstract of the conviction.
(f) (1) A person who is granted probation or who is sentenced following a violation described in subdivision (b) shall be ordered to successfully complete a controlled substance education, treatment, or drug court program, as appropriate. A person shall not be sentenced to jail or prison pursuant to this section unless a court determines that the person is not eligible or suitable for treatment. education or treatment program, as appropriate, pursuant to Section 11373.

(g)(1)In lieu of a jail or prison sentence, or a grant of probation, a defendant charged with a violation described in subdivision (b) who meets all of the following conditions, may elect to undergo treatment by pleading guilty or no contest to a violation described in subdivision (b) and admitting the alleged prior convictions, waiving time for sentencing and the pronouncement of judgment, and agreeing to participate in, and complete, a detailed treatment program developed by a drug addiction expert and approved by the court.

(A)Within five years prior to the alleged commission of the charged offense, the defendant has not suffered a conviction for any offense involving controlled substances other than the offenses listed in subdivision (a) of Section 1000 of the Penal Code.

(B)The offense charged did not involve a crime of violence or threatened violence.

(C)There is no evidence of a contemporaneous violation relating to narcotics or restricted dangerous drugs other than a violation of the offenses listed in subdivision (a) of Section 1000 of the Penal Code.

(D)The defendant has no prior felony conviction within five years prior to the alleged commission of the charged offense.

(2)A defendant’s plea of guilty or no contest shall not constitute a conviction for any purpose unless judgment is entered pursuant to paragraph (8) or subdivision (f).

(3)Upon or subsequent to arraignment for a violation described in subdivision (b), and at the request or with the consent of the defendant or their attorney, the court shall order a drug addiction expert to conduct a substance abuse and mental health evaluation of the defendant. The evaluation shall include an inquiry into any mental health diagnoses and symptoms, but shall not include a diagnosis or treatment recommendation, unless the evaluator is otherwise qualified to make those findings. The expert shall submit a report of the evaluation to the court and parties. The evaluation may be based on an interview of the defendant or other individuals with relevant knowledge and review of records the expert deems appropriate, such as medical records, criminal history, prior treatment history, and records pertaining to the current offense. The evaluation shall detail the defendant’s drug abuse or mental health issues, if any, so the court and parties may better determine appropriate handling of the defendant’s case.

(A)The statement, or any information procured therefrom, made by the defendant to a drug addiction expert or drug treatment worker during the course of any investigation conducted by the drug addiction expert or treatment program pursuant to this paragraph, and prior to the reporting of the drug addiction expert’s findings and recommendations to the court, shall be inadmissible in any action or proceeding brought subsequent to the investigation.

(B)The statement, or any information procured therefrom, with respect to the specific offense with which the defendant is charged, that is made to any drug addiction expert or drug program worker subsequent to the granting of treatment described in paragraph (1) shall be inadmissible in any action or proceeding.

(4)Concurrent with the order for a substance abuse and mental health evaluation of the defendant, and with the defendant’s consent, the court shall also order that a qualified individual determine whether the defendant is eligible to receive Medi-Cal, Medicare, or any other relevant benefits for any programs or public social services. If the defendant did not previously consent to an eligibility determination at arraignment, the court shall order the eligibility determination upon and as a condition of the defendant’s agreement to participate in and complete a treatment program as described in this subdivision.

(5)A treatment program, for the purposes of this subdivision, may include, but is not limited to, drug treatment, mental health treatment, job training, and any other conditions related to treatment or a successful outcome for the defendant that the court finds appropriate. The court shall hold regular hearings to review the progress of the defendant. The court shall make referrals to programs that provide services at no cost to the participant and have been deemed by the court, the drug addiction expert, and the parties to be credible and effective. A defendant may also choose to pay for a program that is approved by the court.

(6)If available and applicable, the court may refer a defendant to programs and services that use contingency management services with incentive structures, including, but not limited to, scaling rewards for continued evidence of specified behaviors or adherence to treatment goals, or rewards to participants for specified behaviors, such as negative urinalysis.

(7)Upon the defendant’s successful completion of the treatment program as specified in paragraph (1), the positive recommendation of the treatment program, and the motion of the defendant, prosecuting attorney, the court, or the probation department, the court shall dismiss this charge against the defendant and the provisions of Section 1000.4 of the Penal Code, as it read on the effective date of the act that added this section, shall apply, including the provision that the arrest upon which the defendant was deferred shall be deemed to have never occurred. A dismissal based on the successful completion of treatment shall not count as a conviction for any purpose.

(8)(A)If at any time it appears that the defendant is performing unsatisfactorily in the program, is not benefiting from treatment, is not amenable to treatment, has refused treatment, or has been convicted of a crime that was committed since starting treatment, the prosecuting attorney, the court on its own, or the probation department shall make a motion for entry of judgment and sentencing. After notice to the defendant, the court shall hold a hearing to determine whether judgment should be entered and the defendant sentenced. Judgment shall be imposed and the defendant sentenced if the court finds true one or more for the foregoing circumstances.

(B)Notwithstanding subparagraph (A) and except when the defendant has been found to have been convicted of a crime that was committed since starting treatment, the court may rerefer the defendant to treatment if the court finds that it is in the interest of justice to do so, that the defendant is currently amenable to treatment, and if the defendant agrees to participate in, and complete, a treatment program as described in this section.

(9)For time spent in residential treatment, a defendant may earn only actual credits pursuant to Section 2900.5 of the Penal Code and shall not earn conduct credits pursuant to Section 4019 of the Penal Code or any other provision. Time spent in any other type of program or counseling is not eligible for any credits.

(2) (A) Upon the defendant’s successful completion of the education or treatment program specified in paragraph (1), the defendant shall be eligible for dismissal of the accusations or information pursuant to Section 1203.4 or 1203.41 of the Penal Code.
(B) In any subsequent prosecution of the defendant for any other offense, the prior conviction, including the advisement as outlined in paragraph (b), may be pleaded and proved and shall have the same effect as if the accusation or information had not been dismissed.

SEC. 2.

 This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order for the State of California and local jurisdictions to act with haste to address the fentanyl epidemic, it is necessary that this act take effect immediately.