BILL NUMBER: AB 1187 AMENDED
BILL TEXT
AMENDED IN SENATE SEPTEMBER 7, 2007
AMENDED IN SENATE SEPTEMBER 5, 2007
AMENDED IN SENATE JULY 17, 2007
AMENDED IN SENATE JUNE 26, 2007
AMENDED IN SENATE JUNE 5, 2007
AMENDED IN ASSEMBLY APRIL 30, 2007
INTRODUCED BY Assembly Member DeSaulnier
(Principal coauthor: Senator Cogdill)
(Coauthors: Assembly Members Huffman, Krekorian, and Ruskin)
(Coauthor: Senator Cox)
FEBRUARY 23, 2007
An act to amend Sections 5521.5, 7370, 8254, 8371, 8436, 12006,
and 12157 of the Fish and Game Code, relating to fish.
LEGISLATIVE COUNSEL'S DIGEST
AB 1187, as amended, DeSaulnier. Sturgeon: striped bass:
salmon: abalone: lobster: black bass:
Centrarchidae: penalties.
(1) Existing law prohibits any person from taking abalone for
commercial purposes in specified districts. Existing law establishes
a rebuttable presumption, affecting the burden of producing evidence,
that a person who is required to obtain a license to take a fish,
reptile, or amphibia, and who takes or possesses more than 12
individual abalone or takes abalone in excess of the annual bag
limit, possesses the abalone for commercial purposes.
This bill would repeal the rebuttable presumption that a person
who takes or possesses a specified amount of abalone possesses it for
commercial purposes. The bill would make the possession of specified
amounts of abalone prima facie evidence that it is possessed for
commercial purposes.
(2) Under existing law, except as specified, it is unlawful to buy
or sell, or to offer to buy or sell, a whole sturgeon, or any part
thereof, including eggs, or to possess sturgeon, or parts thereof,
including eggs, in any place where fish are bought, possessed for
sale, or sold, or where food is offered for sale, or in any truck or
other conveyance operated by or for a place so selling or possessing
fish.
Existing law prohibits the taking of lobsters for commercial
purposes except under a valid lobster permit.
Existing law generally prohibits the sale or purchase of fish of
the family Centrarchidae (Sacramento perch, crappie, black bass, and
sunfish), other than cultured fish.
This bill, with certain exceptions, would make it unlawful to take
or possess for commercial purposes, buy, or sell, or to offer to buy
or sell, any whole sturgeon, or any part thereof, including, but not
limited to, eggs, thereby imposing a state-mandated local program by
creating a new crime. The
The bill would make the possession of specified amounts
of sturgeon or lobster prima facie evidence that it is possessed for
commercial purposes.
This The bill would also prohibit
the taking or possession for commercial purposes of fish of the
family Centrarchidae, thereby imposing a state-mandated local program
by creating new crimes.
The bill would make a violation of the provisions prohibiting the
sale, purchase, or possession of sturgeon for commercial purposes
subject to a fine of not less than $5,000, or more than $10,000, or
imprisonment in a county jail not to exceed one year, or both the
fine and imprisonment. The bill would make a violation of the
provisions prohibiting the sale, purchase, or possession of lobster
subject to a fine of not less than $5,000, or more than $10,000, or
imprisonment in a county jail not to exceed six months, or both the
fine and imprisonment.
The bill would require a court to permanently revoke any
commercial fishing license or commercial fishing permit, and
authorize the court to permanently revoke any sportfishing license,
issued to a violator by the Department of Fish and Game. The bill
would authorize the seizure and forfeiture of any vessel, diving or
other fishing gear or apparatus, or vehicle used in the commission of
specified offenses. The bill would provide that 50% of the revenue
deposited in the Fish and Game Preservation Fund from fines and
forfeitures collected pursuant to those provisions is to be allocated
for the support of the Special Operations Unit of the department,
and used for law enforcement purposes.
(3) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 5521.5 of the Fish and Game Code is amended to
read:
5521.5. (a) In addition to the moratorium imposed by Section
5521, and notwithstanding any other provision of law, it is unlawful
to take abalone for commercial purposes in District 6, 7, 16, 17, or
19A, in District 10 north of Point Lobos, or in District 20 between
Southeast Rock and the extreme westerly end of Santa Catalina Island.
(b) For a person who is required to obtain a license pursuant to
Section 7145, the possession of more than 12 individual abalone or
abalone in excess of the annual bag limit is prima facie evidence
that the person possesses the abalone for commercial purposes.
SEC. 2. Section 7370 of the Fish and Game Code is amended to read:
7370. (a) It is unlawful to take or possess for commercial
purposes, buy or sell, or to offer to buy or sell, any whole
sturgeon, or any part thereof, including, but not limited to, eggs,
except as follows:
(1) A sturgeon, or parts thereof, that is taken or possessed by,
and is the cultured progeny of, an aquaculturist who is registered
under Section 15101, may be sold or purchased subject to regulations
of the commission.
(2) A sturgeon, or parts thereof, that is taken commercially in
another state that permits the sale of the fish and lawfully imported
under Section 2363, may be possessed, sold, or purchased.
(3) Sturgeon, or parts thereof, taken pursuant to a sport fishing
license in accordance with Section 7230.
(b) For purposes of this section, it is prima facie evidence that
a sturgeon, or parts thereof, is possessed for commercial purposes if
the possession of sturgeon is more than two times the sport bag
limit.
SEC. 3. Section 8254 of the Fish and Game Code is amended to read:
8254. (a) Lobsters shall not be taken for commercial purposes
except under a valid lobster permit issued to that person that has
not been suspended or revoked, subject to regulations adopted by the
commission.
(b) Every person who takes, assists in taking, possesses, or
transports lobsters for commercial purposes while on any boat, barge,
or vessel, or who uses or operates or assists in using or operating
any boat, net, trap, line, or other appliance to take lobsters for
commercial purposes, shall have a valid lobster permit.
(c) The permit fee for a lobster permit is two hundred sixty-five
dollars ($265).
(d) The fee for a lobster crewmember permit is one hundred
twenty-five dollars ($125).
(e) For the purposes of this section, it is prima facie evidence
that lobster is taken for commercial purposes if the possession of
lobster is more than three times the sport bag limit.
SEC. 4. Section 8371 of the Fish and Game Code is amended to read:
8371. Striped bass or salmon, or parts thereof, may be sold or
offered for sale only under the following conditions:
(a) If the striped bass, or parts thereof, is taken or possessed
by, and is the cultured progeny of, an aquaculturist who is
registered under Section 15101, that striped bass may be sold or
purchased subject to regulations of the commission.
(b) If the striped bass, or parts thereof, is taken legally in
another state that permits the sale of that fish and if the fish is
lawfully imported under Section 2363, the striped bass, or parts
thereof, may be possessed, sold, or purchased.
(c) If the salmon, or parts thereof, is taken legally in another
state that permits the sale of salmon, and is lawfully imported
consistent with Section 2361, the salmon, or parts thereof, may be
possessed, sold, or purchased.
(d) If the salmon, or parts thereof, is taken in accordance with
Article 4 (commencing with Section 8210.2), the salmon, or parts
thereof, may be possessed, sold, or purchased.
SEC. 5. Section 8436 of the Fish and Game Code is amended to read:
8436. Except as provided in Section 8436.5, fish of the family
Centrarchidae (Sacramento perch, crappie, black bass, and sunfish)
shall not be taken or possessed for commercial purposes, sold, or
purchased, other than fish that are cultured pursuant to Division 12
(commencing with Section 15000).
SEC. 6. Section 12006 of the Fish and Game Code is amended to
read:
12006. (a) Notwithstanding Section 12002:
(1) The punishment for a violation of Section 7370 is a fine of
not less than five thousand dollars ($5,000), or more than ten
thousand dollars ($10,000), imprisonment in a county jail not to
exceed one year, or both the fine and imprisonment.
(2) The punishment for a violation of Section 8254 is a fine of
not less than five thousand dollars ($5,000), or more than ten
thousand dollars ($10,000), imprisonment in a county jail not to
exceed six months, or both the fine and imprisonment.
(b) The court shall permanently revoke any commercial fishing
license or commercial fishing permit, and may permanently revoke any
sport fishing license issued to the violator by the department. Any
vessel, diving or other fishing gear or apparatus, or vehicle used in
the commission of an offense subject to this section may be seized
and may be ordered forfeited by the court pursuant to subdivision (c)
of Section 12157. Fifty percent of the revenue deposited in the Fish
and Game Preservation Fund from fines and forfeitures collected
pursuant to this section shall be allocated for the support of the
Special Operations Unit of the department, and used for law
enforcement purposes.
SEC. 7. Section 12157 of the Fish and Game Code is amended to
read:
12157. (a) Except as provided in subdivision (b), the judge
before whom any person is tried for a violation of any provision of
this code, or regulation adopted pursuant thereto, may, upon the
conviction of the person tried, order the forfeiture of any device or
apparatus that is designed to be, or is capable of being, used to
take birds, mammals, fish, reptiles, or amphibia and that was used in
committing the offense charged.
(b) The judge shall, if the offense is punishable under Section
12008 of this code or under subdivision (c) of Section 597 of the
Penal Code, order the forfeiture of any device or apparatus that is
used in committing the offense, including, but not limited to, any
vehicle that is used or intended for use in delivering, importing, or
exporting any unlawfully taken, imported, or purchased species.
(c) (1) The judge may, for conviction of a violation of either of
the following offenses, order forfeiture of any device or apparatus
that is used in committing the offense, including, but not limited
to, any vehicle used or intended for use in committing the offense:
(A) Section 2000 relating to deer, elk, antelope, feral pigs,
European wild boars, black bears, and brown or cinnamon bears.
(B) Any offense that involves the sale, purchase, or possession of
abalone , salmon, striped bass, or black bass
for commercial purposes .
(C) Any offense that involves the sale, purchase, or possession of
sturgeon or lobster, pursuant to Section 7370 or 8254.
(2) In considering an order of forfeiture under this subdivision,
the court shall take into consideration the nature, circumstances,
extent, and gravity of the prohibited act committed, the degree of
culpability of the violator, the property proposed for forfeiture,
and other criminal or civil penalties imposed on the violator under
other provisions of law for that offense. The court shall impose
lesser forfeiture penalties under this subdivision for those acts
that have little significant effect upon natural resources or the
property of another and greater forfeiture penalties for those acts
that may cause serious injury to natural resources or the property of
another, as determined by the court. In determining whether or not
to order forfeiture of a vehicle, the court shall, in addition to any
other relevant factor, consider whether the defendant is the owner
of the vehicle and whether the owner of the vehicle had knowledge of
the violation.
(3) It is the intent of the Legislature that forfeiture not be
ordered pursuant to this subdivision for minor or inadvertent
violations, as determined by the court.
(d) A judge shall not order the forfeiture of a vehicle under this
section if there is a community property interest in the vehicle
that is owned by a person other than the defendant and the vehicle is
the only vehicle available to the defendant's immediate family that
may be operated on the highway with a class A, class B, or class C
driver's license.
(e) Any device or apparatus ordered forfeited shall be sold, used,
or destroyed by the department.
(f) (1) The proceeds from all sales under this section, after
payment of any valid liens on the forfeited property, shall be paid
into the Fish and Game Preservation Fund.
(2) A lien in which the lienholder is a conspirator is not a valid
lien for purposes of this subdivision.
(g) The provisions in this section authorizing or requiring a
judge to order the forfeiture of a device or apparatus also apply to
the judge, referee, or juvenile hearing officer in a juvenile court
action brought under Section 258 of the Welfare and Institutions
Code.
(h) For purposes of this section, a plea of nolo contendere or no
contest, or forfeiture of bail, constitutes a conviction.
(i) Neither the disposition of the criminal action other than by
conviction nor the discretionary refusal of the judge to order
forfeiture upon conviction impairs the right of the department to
commence proceedings to order the forfeiture of fish nets or traps
pursuant to Section 8630.
SEC. 8. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.