California Assembly Bill AB2492 Amended / Bill

 BILL NUMBER: AB 2492AMENDED BILL TEXT AMENDED IN ASSEMBLY MAY 28, 2014 INTRODUCED BY Assembly Member Jones-Sawyer FEBRUARY 21, 2014  An act to amend Section 54956.8 of the Government Code, relating to local government.   An act to amend Section 11550 of the Health and Safety Code, relating to controlled substances.  LEGISLATIVE COUNSEL'S DIGEST AB 2492, as amended, Jones-Sawyer.  Local agencies: meetings: real property transactions.   Controlled substances: sentencing.   Existing law prohibits a person from using or being under the influence of certain controlled substances, except as specified. A person convicted of violating this prohibition is guilty of a misdemeanor and the court is required to sentence the person to not less than 90 days or more than one year in a county jail. The court is authorized to place a person convicted under this provision on probation for not more than 5 years, and the court is required, as a condition of granting probation, to order the person to serve at least 90 days in a county jail. The court is prohibited, except with regards to specified drug treatment provisions, from absolving a person convicted under this provision from serving at least 90 days in a county jail.   This bill would delete the requirement that a person convicted under this provision serve at least 90 days in a county jail, and would delete the requirement that, as a condition of granting probation, the person serve at least 90 days in a county jail. The bill would make additional conforming changes. The bill would also authorize the court to grant probation for not more than 5 years in addition to any jail sentence imposed.   Existing law, the Ralph M. Brown Act, requires all meetings of the legislative body of a local agency to be open and public, with specified exceptions. Existing law authorizes a legislative body of a local agency, after holding an open and public session as specified, to hold a closed session with its negotiator prior to the purchase, sale, exchange, or lease of real property by or for the local agency to grant authority to its negotiator regarding the price and terms of payment for the purchase, sale, exchange, or lease.   This bill would instead authorize the legislative body to hold a closed session to grant authority to the negotiator regarding the price and terms of the purchase, sale, exchange, or lease.   Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.   This bill would make legislative findings to that effect.  Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:  SECTION 1.   Section 11550 of the   Health and Safety Code   is amended to read:  11550. (a)  No person   A person  shall  not  use, or be under the influence of any controlled substance  which   that  is (1) specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), (21), (22), or (23) of subdivision (d) of Section 11054, specified in subdivision (b) or (c) of Section 11055, or specified in paragraph (1) or (2) of subdivision (d) or in paragraph (3) of subdivision (e) of Section 11055, or (2) a narcotic drug classified in Schedule III, IV, or V, except when administered by or under the direction of a person licensed by the state to dispense, prescribe, or administer controlled substances. It shall be the burden of the defense to show that it comes within the exception.  Any   A  person convicted of violating this subdivision is guilty of a misdemeanor and shall be sentenced to serve a term of not  less than 90 days or  more than one year in a county jail. The court may  also  place a person convicted under this subdivision on probation for a period not to exceed five  years and, except as provided in subdivision (c), shall in all cases in which probation is granted require, as a condition thereof, that the person be confined in a county jail for at least 90 days. Other than as provided by subdivision (c), in no event shall the court have the power to absolve a person who violates this subdivision from the obligation of spending at least 90 days in confinement in a county jail.   years.  (b)  Any   (1)     A  person who  (1)  is convicted of violating subdivision (a) when the offense occurred within seven years of that person being convicted of two or more separate violations of that subdivision, and  (2)  refuses to complete a licensed drug rehabilitation program offered by the court pursuant to subdivision (c), shall be punished by imprisonment in a county jail for not less than 180 days nor more than one year. In no event does the court have the power to absolve a person convicted of a violation of subdivision (a)  that   who  is punishable under this subdivision from the obligation of spending at least 180 days in confinement in a county jail unless there are no licensed drug rehabilitation programs reasonably available.  For   (2)     For  the purpose of this section, a drug rehabilitation program  shall not be considered   is not  reasonably available unless the person is  not required to pay  no  more than the court determines that he or she is reasonably able to  pay,   pay  in order to participate in the program. (c)  (1)    The court may, when it would be in the interest of justice, permit  any  a  person convicted of a violation of subdivision (a) punishable under subdivision (a) or (b) to complete a licensed drug rehabilitation program in lieu of part or all of the imprisonment in  the   a  county jail. As a condition of sentencing, the court may require the offender to pay all or a portion of the drug rehabilitation program.  In   (2)     In  order to alleviate jail overcrowding and to provide recidivist offenders with a reasonable opportunity to seek rehabilitation pursuant to this subdivision, counties are encouraged to include provisions to augment licensed drug rehabilitation programs in their substance abuse proposals and applications submitted to the state for federal and state drug abuse funds. (d) In addition to any fine assessed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against  any   a  person who violates this section, with the proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant's ability to pay, and  no   a  defendant shall  not  be denied probation because of his or her inability to pay the fine permitted under this subdivision. (e)  (1)    Notwithstanding subdivisions (a) and (b) or any other  provision of  law,  any   a  person who is unlawfully under the influence of cocaine, cocaine base, heroin, methamphetamine, or phencyclidine while in the immediate personal possession of a loaded, operable firearm is guilty of a public offense punishable by imprisonment in a county jail for not exceeding one year or in state prison.  As   (2)     As  used in this subdivision "immediate personal possession" includes, but is not limited to, the interior passenger compartment of a motor vehicle. (f) Every person who violates subdivision (e) is punishable upon the second and each subsequent conviction by imprisonment in the state prison for two, three, or four years. (g)  Nothing in this section prevents   This section does not prevent  deferred entry of judgment or a defendant's participation in a preguilty plea drug court program under Chapter 2.5 (commencing with Section 1000) of Title 6 of Part 2 of the Penal Code unless the person is charged with violating subdivision (b) or (c) of Section 243 of the Penal Code. A person charged with violating this section by being under the influence of any controlled substance which is specified in paragraph (21), (22), or (23) of subdivision (d) of Section 11054 or in paragraph (3) of subdivision (e) of Section 11055 and with violating either subdivision (b) or (c) of Section 243 of the Penal Code or with a violation of subdivision (e) shall be ineligible for deferred entry of judgment or a preguilty plea drug court program.  SECTION 1.   Section 54956.8 of the Government Code is amended to read: 54956.8. Notwithstanding any other provision of this chapter, a legislative body of a local agency may hold a closed session with its negotiator prior to the purchase, sale, exchange, or lease of real property by or for the local agency to grant authority to its negotiator regarding the price and terms for the purchase, sale, exchange, or lease. However, prior to the closed session, the legislative body of the local agency shall hold an open and public session in which it identifies its negotiators, the real property or real properties which the negotiations may concern, and the person or persons with whom its negotiators may negotiate. For purposes of this section, negotiators may be members of the legislative body of the local agency. For purposes of this section, "lease" includes renewal or renegotiation of a lease. Nothing in this section shall preclude a local agency from holding a closed session for discussions regarding eminent domain proceedings pursuant to Section 54956.9.   SEC. 2.   The Legislature finds and declares that Section 1 of this act, which amends Section 54956.8 of the Government Code, imposes a limitation on the public's right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest: Local agencies increasingly are entering into more sophisticated and complex real estate transactions requiring the negotiation of nonmonetary terms outside the scope of the "price and terms of payment" that constitute valuable consideration. A local agency must be authorized to consider all of the terms of a real estate transaction in closed session in order to preserve its negotiating position so as to strike the best bargain in the public interest.