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Criminal Defense Attorneys

How Does SB 73 Affect Sentencing on Drug Offenses?

On October 5, 2021, Governor Gavin Newsom signed Senate Bill (SB) 73.  It would become effective January 1, 2022.  In short, it give judges discretion to offer probation on certain second-time drug offenses that previously was illegal and adds certain drug offenses to the list of offenses that result in a ban on owning a firearm until age 30.

Senate Bill 73 does four things.  First, it amended Health and Safety Code § 11370.  Section 11370, prior to SB 73, stated that a judge may not grant probation or a prison sentence suspended to any person with at least one certain prior conviction and then convicted of violating Health & Safety Code § 11350 (possession of a controlled substance, not methamphetamine or marijuana), § 11351 (possession of a controlled substance with intent to sell), § 11351.5 (possession of cocaine for sale), § 11352 (sale or transport of a controlled substance), § 11353 (an adult inducing a minor to use, sell, or transport a controlled substance), § 11355 (sale of a fake or imitation drug, also known as “bunk”), § 11357 (possession of less than 28.5 grams of marijuana or eight grams of concentrated cannabis), § 11359 (possession of marijuana for sale without a license), § 11360 (transportation for sale or importing marijuana for sale), § 11361 (an adult giving or selling marijuana to a minor), § 11363 (planting, cultivating or harvests peyote), § 11366 (maintaining a house for purposes of selling drugs) or § 11368 (forging or altering a prescription for prescription drugs). 

The prior convictions that bar a judge from offering probation or a joint suspended are listed under Health & Safety Code § 11370(c).  They include what one would consider more serious drug priors.  These are a previous conviction of any of the following offenses, or of an offense under the laws of another state or of the United States which, if committed in this state, would have been punishable as such an offense: any felony offense described in this division involving a controlled substance specified in Health & Safety Code §§ 11054(b) (any opiate), (c) (opium derivatives), (e) (depressants), or (f)(1) (cocaine base), and certain code sections that dealt with sales of more than 14.25 grams of heroin or heroin-based products.

Generally speaking, § 11370 mandated state prison or county jail for a person on many second offense drug crimes. 

Senate Bill 73 amends 11370 at section (e) to allow the judge discretion on sentencing in such second-offense drug crimes “in an unusual case where the interests of justice would best be served. When probation is granted pursuant to this subdivision, the court shall specify on the record the circumstances supporting the finding.”

Second, it repealed and replaced Penal Code § 1203.07, which also barred probation or a joint suspended sentence for violation of Health & Safety Code § 11380, which prohibits soliciting, intimidating, encouraging or inducing a minor to act as an agent to manufacture, compound, or sell certain controlled substances.  The controlled substances at issue include many hallucinogens listed under Health & Safety Code § 11054(d).

Senate Bill 73 adds Penal Code § 1203.07(c), which is similar to the wording in the amended § 11370(e).  Section 1203.07(c) states: “[A] person who is made ineligible for probation pursuant to this section may be granted probation only in an unusual case where the interests of justice would best be served. When probation is granted pursuant to this subdivision, the court shall specify on the record and shall enter into the minutes the circumstances supporting the finding.”

Third, SB 73 abolishes Penal Code § 1203.073.  This section stated: “(a) A person convicted of a felony specified in subdivision (b) may be granted probation only in an unusual case where the interests of justice would best be served.  When probation is granted in such a case, the court shall specify on the record and shall enter in the minutes the circumstances indicating that the interests of justice would best be served by such a disposition.”

Lastly, Senate Bill amends Penal Code § 29820 to add drug offenses to the list of crimes resulting in a person being prohibited from firearm ownership or possession until age 30 or older.  This provision, our readers should be pleased to know, is not retroactive.

For more information about sentencing on drug offenses, please click on the following articles:
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