BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Gloria Romero, Chair S
2007-2008 Regular Session B
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7
7
SB 1775 (Calderon) 5
As Introduced February 28, 2008
Hearing date: April 15, 2008
Penal Code
MK:br
DOGFIGHTING: FORFEITURES
HISTORY
Source: The Humane Society of the United States
Prior Legislation: None
Support: American Society for the Prevention of Cruelty to
Animals; PetPAC; California Sheriffs' Association;
Ventura County Deputy Sheriffs' Association; Peace
Officers Research Association
Opposition:California Public Defenders Association; Taxpayers
for Improving Public Safety; California Attorneys for
Criminal Justice; California Association of Realtors
(unless amended)
( NOTE : THIS ANALYSIS REFLECTS AUTHOR'S AMENDMENTS TO BE OFFERED
IN COMMITTEE.)
KEY ISSUES
SHOULD THE LAW PROVIDE FOR FORFEITURE OF PROPERTY ACQUIRED
THROUGH THE COMMISSION OF DOGFIGHTING?
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SHOULD THE LAW PROVIDE FOR THE FORFEITURE OF PROPERTY USED TO
FACILITATE DOGFIGHTING?
(CONTINUED)
SHOULD PROCEEDS FROM THE SALE OF FORFEITED PROPERTY GO IN PART TO
LOCAL NON-PROFIT ANIMAL RESCUE ORGANIZATIONS AND LAW ENFORCEMENT
AGENCIES THAT INVESTIGATE AND PROSECUTE DOGFIGHTING CRIMES?
PURPOSE
The purpose of this bill, as proposed to be amended, is to
provide for the forfeiture of any property interest that was
either acquired through the commission of dogfighting or used to
facilitate dogfighting.
Existing law states that if any person owning or having custody
and control of a mischievous animal, knowing its propensities,
willfully suffers the animal to go at large, or keeps the
animal without ordinary care, and the animal, while at large or
while not kept with ordinary care, kills any human being who
has taken all precautions that the circumstances permitted or
which a reasonable person would ordinarily take in a similar
situation, is guilty of a felony. (Penal Code 399(a).)
Existing law provides that if any person owning or having
custody of a mischievous animal, knowing its propensities,
willfully suffers it to go at large, or keeps the animal without
ordinary care, and the animal, while at large or while not kept
with ordinary care, causes serious bodily injury to any human
being who has taken all the precautions that circumstances
permitted, or which a reasonable person would ordinarily take in
the same situation, is guilty of a misdemeanor or a felony.
(Penal Code 399(b).)
Existing law provides that any person owning or having custody
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or control of a dog trained to fight, attack, or kill is guilty
of an alternate misdemeanor/felony, punishable by imprisonment
in the state prison for two, three or four years; in the county
jail not to exceed one year; by a fine not exceeding $10,000; or
by both such fine and imprisonment if, as a result of the human
being on two separate occasions or on one occasion causing
substantial physical injury. Existing law also states that no
person shall be criminally liable under this section unless he
or she knew or reasonably should have known of the vicious and
dangerous nature of the dog, or if the victim failed to take all
the precautions that a reasonable person would ordinarily take
in the same situation. (Penal Code 399.5(a).)
Existing law states that following a conviction under this
section, a court shall hold a hearing to determine whether
conditions of the treatment or confinement of the dog or other
circumstances existing at the time of the bite or bites have
changed so as to remove the danger to other persons presented
by the animal. Existing law also provides that the court,
after the hearing, may make any order it deems appropriate to
prevent the recurrence of such an incident including, but not
limited to, the removal of the animal from the area or
destruction if necessary. (Penal Code 399.5(b).)
Existing law states that nothing in this section shall be
construed to affect the liability of the owner of a dog
under Penal Code Section 399 or any other provision of law.
(Penal Code 399.5(d).)
Existing law states that this section shall not apply to a
veterinarian or an on-duty animal control officer while in the
performance of his or her duties or to a peace officer, as
defined, if he or she is assigned to a canine unit. (Penal Code
399.5(e).)
Existing law provides that any person, who for amusement or
gain, causes any bull, bear, or other animal, not including
any dog, to fight with the like kind of animal or creature, or
causes any animal, including any dog, to fight with a
different kind of animal or creature, or with any human being;
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or who, for amusement or gain, worries or injures any bull,
bear, dog, or other animal, or causes any bull, bear or other
animal, not including any dog, to worry or injure each other;
and any person who permits the same to be done on any premises
under his or her charge or control; and any person who aids,
abets, is guilty of a misdemeanor punishable by up to one year
in jail and/or a fine of $5000. (Penal Code 597b(a).)
Existing law makes it a misdemeanor to cause, for amusement or
gain, an animal to fight a like or different animal. The
penalty for a first offense is up to one year in county jail
and/or a fine of $5000. A second or subsequent violation of
this section or Penal Code Sections 597c or 597j is a
misdemeanor with a penalty of up to one year in county jail
and/or a fine up to $25,000. (Penal Code 597b(b).)
Existing law provides that any person who is knowingly
present as a spectator at any place, building, or tenement
for an exhibition of animal fighting, or who is knowingly
present where preparations are being made for animal
fighting is guilty of a misdemeanor. (Penal Code 597c.)
Existing law makes it a misdemeanor for any person to own,
possess, keep or train any bird or animal with the intent that
it be used in an exhibition of fighting. The penalty for a
first offense is up to one year in county jail and/or a fine of
$5000. A second or subsequent violation of this section or
Penal Code Sections 597b or 597c is a misdemeanor with a penalty
of up to one year in county jail and/or a fine up to $25,000.
(Penal Code 597j.)
Existing law provides that peace officers do not need a warrant
to enter a building where there is an exhibition of the fighting
of birds or animals or where preparations are being made for
such an exhibition and may arrest all persons present. (Penal
Code 597d.)
Existing law provides that every owner, driver, or possessor of
any animal who permits the animal to be in any building,
enclosure, lane, street, square or lot, of any city, city and
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county, or judicial district without proper care and attention,
shall, on conviction, be guilty of a misdemeanor. (Penal Code
597f(a).)
Existing law provides that an officer making an arrest at an
animal fight may take possession of all birds or animals and all
paraphernalia, implements or other property related to the
animal fighting. (Penal Code 599aa.)
Existing law provides that any person who does any of the
following is guilty of a felony and is punishable by
imprisonment in the state prison for 16 months, 2 or 3 years
or by a fine not exceeding $50,000:
Owns, possesses, keeps, or trains any dog,
with the intent that the dog shall be engaged in
an exhibition of fighting with another dog.
For amusement or gain, causes any dog to fight
with another dog, or causes any dogs to injure
each other.
Permits either of the above to be done on any
premises under his or her charge or control, or
aids, or abets that act. (Penal Code 597.5
(a).)
Existing law provides that any person who is knowingly
present, as a spectator, at any place, building, or tenement
where preparations are being made for an exhibition of the
fighting of dogs, with the intent to be present at those
preparations, or is knowingly present at the exhibitions or at
any other fighting or injuring with the intent to be present
at that exhibition, fighting or injuring, is guilty of a
misdemeanor. (Penal Code 597.5 (b).)
Existing law provides that any officer making an arrest under
specified animal protection statute may lawfully take
possession of all birds or animals and all paraphernalia,
implements or other property or things used or employed or
about to be employed in the violation of any of the provisions
of this code relating to the fighting of birds or animals that
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can be used in animal or bird fighting, in training animals or
birds to fight, or to inflict pain or cruelty upon animals or
birds in respect to animal or bird fighting and sets forth the
care of the animals and paraphernalia seized. Upon
conviction, all property seized shall be adjudged by the court
to be forfeited and shall then be destroyed or otherwise
disposed of as the court may order. The court may also order
the person to make payment to the appropriate public entity
for the costs incurred in the housing, care and feeding of the
birds or animals. (Penal Code 599aa.)
This bill , as proposed to be amended, provides that in any case
in which a person is convicted of any of the crimes described in
Penal Code Section 597.5 (a) the property or interest, whether
tangible or intangible, was acquired through the commission of
any of the listed crimes or used to facilitate the crimes shall
be subject to forfeiture, including both personal and real
profits, proceeds, and the instrumentalities acquired,
accumulated, or used by dogfighting participants, organizers,
transporters of animals and equipment, property owners who
knowingly allow their premises to be used for dogfighting and
other activities in support of dogfighting, and breeders and
trainers of fighting dogs, and persons who steal and illegally
obtain dogs and other animals for fighting, including bait and
sparring animals.
This bill provides that the prosecuting agency shall, in
conjunction with the criminal proceeding, file a petition of
forfeiture with the superior court of the county in which the
defendant has been charged with the commission of any of the
crimes listed in Penal Code Section 597.5 (a) that shall allege
that the defendant has committed those crimes and the property
is forfeitable under this bill.
This bill provides that the prosecuting agency shall make
service of process of a notice regarding petition for forfeiture
upon every individual who may have a property interest in the
alleged proceeds. The notice shall state that any interested
party may file a verified claim with the superior court stating
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the amount of the party's claimed interest and an affirmation or
denial of the prosecuting agency's allegation.
This bill provides that if the notices cannot be served by
registered mail or personal delivery, the notices shall be
published for at least three consecutive weeks in a newspaper of
general circulation in the county where the property is located.
This bill provides that if the property alleged to be subject to
forfeiture is real property, the prosecuting agency shall, at
the time of filing the petition of forfeiture, record a lis
pendens in each county in which real property alleged to be
subject to forfeiture is located.
This bill provides that the judgment of forfeiture shall not
affect the interest of any third party in real property that was
acquired prior to the recording of the lis pendens.
This bill provides that all notices shall set forth the time
within which a claim of interest in the property seized is
required to be filed.
This bill provides that any person claiming an interest in the
property or proceeds seized may, at any time within 30 days from
the date of the first publication of the notice of seizure, or
within 30 days after receipt of the actual notice, file with the
superior court of the county in which the action is pending, a
verified claim stating his or her interest in the property or
proceeds. A verified copy of the claim shall be given by the
claimant to the Attorney General, or the district or city
attorney, whichever is the prosecuting agency of the underlying
crime.
This bill provides that if at the end of the time set forth, an
interested person, other than the defendant has not filed a
claim, the court, upon a motion, shall declare that the person
has defaulted upon his or her alleged interest, and it shall be
subject to forfeiture upon proof of the elements.
This bill provides that the defendant may admit or deny that the
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property is subject pursuant to this section. If the defendant
fails to admit or deny, or fails to file a claim of interest in
the property or proceeds, the court shall enter a response of
denial on behalf of the defendant.
This bill provides that the forfeiture proceeding shall be set
for hearing in the superior court in which the underlying
criminal offense will be tried.
This bill provides that if the defendant is found guilty of the
underlying offense, the issue of forfeiture shall be promptly
tried, either before the same jury or before a new jury in the
discretion of the court, unless waived by the consent of all
parties.
This bill provides that at the forfeiture hearing, the
prosecuting agency shall have the burden of establishing beyond
a reasonable doubt that the defendant was engaged in any of the
crimes described and that the property meets the requirements
for forfeiture.
This bill provides that concurrent with, or subsequent to, the
filing of the petition, the prosecuting agency may move the
superior court for the following pendent elite orders to
preserve the status quo of the property alleged in the petition
of forfeiture:
An injunction to restrain all interested
parties and enjoin them from transferring,
encumbering, hypothecating, or otherwise
disposing of property.
Appointment of a receiver to take possession of,
care for, manage, and operate the assets and
properties so that such property may be maintained
and preserved.
This bill provides that no preliminary injunction may be granted
or receiver appointed without notice to the interested parties
and a hearing to determine that the order is necessary to
preserve the property pending the outcome of the criminal
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proceedings, and that there is probable cause to believe that
the property alleged in the forfeiture proceedings are proceeds
or property interests forfeitable. However, a temporary
restraining order may issue pending the hearing pursuant to the
provisions of Section 527 of the Code of Civil Procedure.
This bill , as proposed to be amended, provides that if the trier
of fact at the forfeiture hearing finds that the alleged
property or proceeds are forfeitable and that the defendant was
convicted of a crime listed, the court shall declare that the
property or proceeds forfeited to the state or local
governmental entity, subject to distribution as provided. No
property solely owned by a bona fide purchaser for value who was
without knowledge that the property was intended to be used for
a purpose which would subject it to forfeiture under this
section, or is subject to forfeiture under this section shall be
subject to forfeiture.
This bill provides that if the trier of fact at the forfeiture
hearing finds the alleged property is forfeitable but does not
find that a person holding a valid lien, mortgage, security
interest or interest under a conditional sales contract acquired
that interest with actual knowledge that the property was to be
used for a purpose for which forfeiture is permitted, and the
amount due to that person is less than the appraised value of
the property, that person may pay the state or local
governmental entity that initiated the forfeiture proceeding,
the amount of the registered owner's equity, that shall be
deemed to be the difference between the appraised values and the
amount of the lien, mortgage, security interest, or interest
under a conditional sales contract. Upon that payment, the
state or local governmental entity shall relinquish all claims
to the property.
This bill provides that if the holder of the interest elects not
to make that payment to the state or local governmental entity,
the property shall be deemed forfeited to the state or local
governmental entity.
This bill provides the appraised value shall be determined as of
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the date judgment is entered either by agreement between the
legal owner and the governmental entity involved, or if they
cannot agree, then by a court-appointed appraiser for the county
in which the action is brought.
This bill provides when the property is sold by the Department
of General Services or a local entity the distribution of funds
is as follows:
To the bona fide or innocent purchaser,
conditional sales vendor, or holder of a valid
lien, mortgage, or security interest, if any, up
to the amount of his or her interest in the
property or proceeds, when the court declaring
the forfeiture orders a distribution to that
person. The court shall endeavor to discover all
those lienholders and protect their interests and
may, at its discretion, order the proceeds placed
in escrow for a period not to exceed 60
additional days to ensure that all valid claims
are received and processed.
To the Department of General Services or local
governmental entity for all expenditures made or
incurred by it in connection with the sale of the
property, including expenditures for any
necessary repairs, storage, or transportation of
any property seized under this section.
To local nonprofit organizations whose primary
activities include ongoing, rescue, foster or
other care of animals that are the victims of
dogfighting, and to law enforcement entities,
including multiagency task forces, that actively
investigate and prosecute animal fighting crimes.
Any remaining funds not fully distributed to
organizations or entities shall be deposited in
an escrow account or restricted fund to be
distributed to the nonprofit entities as soon as
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possible.
This bill makes the following codified findings and
declarations:
Dogfighting is an insidious underground
organized crime and, notwithstanding its absolute
prohibition in America, this crime has reached
epidemic proportions in all urban communities and
continues to thrive in many rural areas as well.
Many communities have been morally, socially,
and culturally scarred by the continuing presence
of dogfighting. Children who are exposed to the
unfathomable violence of dogfighting are
conditioned to believe that violence is normal
and are systematically desensitized to the
consequential suffering.
Dog fighters are violent criminals who engage
in a whole host of peripheral criminal
activities. Many are heavily involved in
organized crime, racketeering, drug distribution,
and gang-related criminal activity, and they
arrange and attend the fights as a forum for
gambling and drug trafficking. These activities,
both individually and collectively, present a
clear and present danger to public order and
safety and are not constitutionally protected.
An effective means of punishing and deterring
the criminal activities of dog fighters is
through forfeiture of the property, both personal
and real, profits, proceeds, and the
instrumentalities acquired, accumulated, or used
by dogfighting participants, organizers,
transporters of animals and equipment, property
owners who allow their premises to be used for
dogfighting and other activities in support of
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dogfighting, and breeders and trainers of
fighting dogs, and persons who steal and
illegally obtain dogs and other animals for
fighting, including bait and sparring animals.
Dogfighting not only encourages and furthers
antisocial values and violence but it also
results in the antisocialization of dogs thereby
making them a danger to the community at large.
Police officers, firefighters, utility, and other
municipal workers are at increasing risk in the
course of their employment on both public and
private property because of the epidemic number
of dogs that have been bred and trained to fight
each other as well as other animals, small
children, and adults.
Public animal shelters, humane societies, and
nonprofit animal rescue and adoption groups that
rescue and care for animals bear much of the
social, economic, and moral burden caused by
dogfighting. Specialized multiagency law
enforcement entities such as anticruelty task
forces comprised of municipal animal control,
local police, sheriff, and city and district
attorneys investigating, arresting, and
prosecuting dogfighting and other crimes against
animals are a critical component of the goal of
reducing and eliminating this heinous crime in
California, yet these agencies suffer from
limited resources.
Forfeited property, profits, proceeds, and
instrumentalities acquired, accumulated, or used
by dogfighting participants and others acting in
support of dogfighting, should be sold to support
efforts to care for abused animals and the law
enforcement entities specially formed to address
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dogfighting and animal cruelty, wherever
possible. Distribution of the above should be
determined by the state or local governing
bodies, depending upon which is responsible for
the prosecution as a result of which the proceeds
were seized.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California continues to face an extraordinary and severe prison
and jail overcrowding crisis. California's prison capacity
remains nearly exhausted as prisons today continue to be
operated with a significant level of overcrowding.<1> A year
ago, the Legislative Analyst's office summarized the trajectory
of California's inmate population over the last two decades:
During the past 20 years, jail and prison
populations have increased significantly. County
jail populations have increased by about 66
percent over that period, an amount that has been
limited by court-ordered population caps. The
prison population has grown even more dramatically
during that period, tripling since the
mid-1980s.<2>
The level of overcrowding, and the impact of the population
crisis on the day-to-day prison operations, is staggering:
As of December 31, 2006, the California Department
of Corrections and Rehabilitation (CDCR) was
estimated to have 173,100 inmates in the state
prison system, based on CDCR's fall 2006
population projections. However, . . . the
department only operates or contracts for a total
of 156,500 permanent bed capacity (not including
--------------------
<1> Analysis of the 2007-08 Budget Bill: Judicial and Criminal
Justice, Legislative Analyst's Office (February 21, 2007); see
also, court orders, infra.
<2> California's Criminal Justice System: A Primer.
Legislative Analyst's Office (January 2007).
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out-of-state beds, . . . ), resulting in a
shortfall of about 16,600 prison beds relative to
the inmate population. The most significant bed
shortfalls are for Level I, II, and IV inmates, as
well as at reception centers. As a result of the
bed deficits, CDCR houses about 10 percent of the
inmate population in temporary beds, such as in
dayrooms and gyms. In addition, many inmates are
housed in facilities designed for different
security levels. For example, there are currently
about 6,000 high security (Level IV) inmates
housed in beds designed for Level III inmates.
. . . (S)ignificant overcrowding has both
operational and fiscal consequences. Overcrowding
and the use of temporary beds create security
concerns, particularly for medium- and
high-security inmates. Gyms and dayrooms are not
designed to provide security coverage as well as
in permanent housing units, and overcrowding can
contribute to inmate unrest, disturbances, and
assaults. This can result in additional state
costs for medical treatment, workers'
compensation, and staff overtime. In addition,
overcrowding can limit the ability of prisons to
provide rehabilitative, health care, and other
types of programs because prisons were not
designed with sufficient space to provide these
services to the increased population. The
difficulty in providing inmate programs and
services is exacerbated by the use of program
space to house inmates. Also, to the extent that
inmate unrest is caused by overcrowding,
rehabilitation programs and other services can be
disrupted by the resulting lockdowns.<3>
As a result of numerous lawsuits, the state has entered into
several consent decrees agreeing to improve conditions in the
---------------------------
<3> Analysis 2007-08 Budget Bill, supra, fn. 1.
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state's prisons. As these cases have continued over the past
several years, prison conditions nonetheless have failed to
improve and, over the last year, the scrutiny of the federal
courts over California's prisons has intensified.
The federal court has appointed a receiver to take over the
direct management and operation of the prison medical health
care delivery system from the state. The crisis has continued
to escalate and, in July of last year, the federal court
established a three-judge panel to consider placing a cap on the
number of prisoners allowable in California prisons. It is
anticipated that the court will reach its decision this year.
In his order establishing the judicial panel, Judge Thelton
Henderson stated in part:
It is clear to the Court that the crowded conditions
of California's prisons, which are now packed well
beyond their intended capacity, are having - and in
the absence of any intervening remedial action, will
continue to have - a serious impact on the Receiver's
ability to complete the job for which he was
appointed: namely, to eliminate the unconstitutional
conditions surrounding delivery of inmate medical
health care.
. . . (T)his case is also somewhat unique in that even
Defendants acknowledge the seriousness of the
overcrowding problem, which led the Governor to declare
a state of emergency in California's prisons in October
2006. While there remains dispute over whether crowded
conditions are the primary cause of the constitutional
problems with the medical health care system in
California prisons, or whether any relief other than a
prisoner release order will remedy the constitutional
deprivations in this case, there can be no dispute that
overcrowding is at least part of the problem. . . .
The record is equally clear that the Receiver will be
unable to eliminate the constitutional deficiencies at
issue in this case in a reasonable amount of time
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unless something is done to address the crowded
conditions in California's prisons. This Court
therefore believes that a three-judge court should
consider whether a prisoner release order is warranted
. . . . (Hon. Thelton Henderson, Order dated July 23,
2007 in Plata v. Schwarzenegger (N.D. Cal) No. C01-1351
TEH (citations omitted).)
Similarly, Judge Lawrence Karlton stated:
There is no dispute that prisons in California are
seriously and dangerously overcrowded. () The
record suggests there will be no appreciable change
in the prison population in the next two years.
(Hon. Lawrence K. Karlton, Senior Judge, United
States District Court, Order dated July 23, 2007 in
Coleman v. Schwarzenegger (E.D. Cal.) No. S90-0520
LKK JFM P (citations omitted).)
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
Dog fighting is an insidious underground, organized
crime that has reached epidemic proportions in urban
communities and thrives in many rural areas as well.
Many communities have been morally, socially and
culturally scarred by the continuing presence of dog
fighting. Children who are exposed to the unfathomable
violence of dog fighting are conditioned to believe that
violence is normal and are systematically desensitized
to the consequential suffering. Dog fighters are often
violent criminals that engage in a whole host of
peripheral criminal activities, such as gangs,
racketeering and drug trafficking. These activities
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present a clear and present danger to public order and
safety and are not constitutionally protected.
In order to seek eradication of dog fighting by
systematically reducing the economic resources available
to these criminals who facilitate and support the crime
of dog fighting, Senator Calderon has introduced SB
1775.
The measure is a means of punishing and deterring the
criminal activities of dog fighters through forfeiture
of the property, both personal and real, profits,
proceeds and the instrumentalities acquired, accumulated
or used by dog fighting participants, organizers,
transporters of animals and equipment, property owners
who allow their premises to be used for dog fighting and
other activities in support of dog fighting, breeders
of, trainers of, and persons who steal and illegally
obtain dogs and other animals for fighting, including
bait and sparring animals.
Proceeds acquired through the post-conviction forfeiture
process will be distributed to law enforcement agencies
to help reimburse the costs associated with
investigating and prosecuting dog fighting cases and
animal-welfare organizations that care for and
rehabilitate animals rescued from dog fighters.
2. Forfeiture for Dogfighting
Existing law permits forfeiture for any property interest
whether tangible or intangible acquired through a pattern of
criminal profiteering activity. Criminal profiteering activity
includes any act committed or attempted or any threat made for
financial gain or advantage which act or threat may be charged
as a crime under specified enumerated felony sections. (Penal
Code 186.2; 186.3.) The law sets up the procedures for
forfeiture upon a conviction of a pattern of criminal
profiteering. (Penal Code 186 et seq.) A pattern of criminal
profiteering means engaging in at least two incidents of
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criminal profiteering. (Penal Code 186.2(b).)
Existing law also permits the seizure of any animals used in
fighting as well as all paraphernalia, implements or other
property or things used or employed, or about to be employed in
violation of any bird or animal fighting statute. Upon
conviction, the items seized shall be deemed forfeited. (Penal
Code 599aa.)
This bill, as proposed to be amended, takes the procedures that
are set up for forfeiture for criminal profiteering and applies
them to forfeiture not only of property acquired through the
commission of misdemeanor and felony dogfighting related crimes
but also any property used to facilitate the crimes. CPDA
opposes the new scheme created by this bill stating:
CPDA believes that existing forfeiture law "is
sufficient in that it allows seizure of not only animals
but also paraphernalia, implements or other property or
things used or employed or about to be employed, in dog
fighting." Such property would already include personal
and real property, if the appropriate nexus to
dogfighting were demonstrated.
IS EXISTING FORFEITURE FOR ANIMAL FIGHTING PROVISIONS
SUFFICIENT?
a. Property acquired through dogfighting
This bill would provide a process for forfeiture when
a person is convicted of a dogfighting related offense
for property acquired through the dogfighting. Thus
any property that a person used profits from
dogfighting to purchase can be forfeited. This
includes real property. This is the standard used for
forfeiture under the criminal profiteering provisions.
SHOULD PROPERTY ACQUIRED THROUGH DOGFIGHTING BE SUBJECT TO
FORFEITURE?
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b. Property used to facilitate
In addition to property acquired through the commission
of the crime of dogfighting, this bill, as proposed to be
amended, provides for the forfeiture of property used to
facilitate the crime of dogfighting. What is used to
facilitate is not clearly defined and could be
interpreted broadly.
Forfeiting property used to facilitate is beyond what is
currently forfeitable for criminal profiteering and
offenses such as murder, mayhem or kidnapping. Drug
forfeiture provisions do allow for forfeiture of items
used to sell illegal drugs, but those provisions have
specific provisions with protections for innocent owners
or when the property is also used for a lawful purpose,
such as a home. (See generally Health and Safety Code
11469 et seq.) Is it appropriate to allow forfeiture in
circumstances where forfeiture is not allowed under the
existing criminal profiteering scheme for other very
serious offenses without including additional safeguards?
The supporters of this bill all note that the motivation
for the dog fights is financial and argue because betting
and other illegal activities go on that the participants
should also have property forfeited. However, this bill
does not contain any provisions allowing for innocent
owners of the property. The amendments do provide for a
"knowing" owner; however, the Penal Code definition of
knowingly provides that "knowingly imports only a
knowledge that the facts exist which bring the act or
omission within the provisions of the code. It does not
require any knowledge of the unlawfulness of such an act
or omission." (Penal Code 7(5).) Thus the co-owner of
a house where dogfighting is going on, or where dogs are
being kept that are used in fights elsewhere cold lose
their home if the co-owner is found liable under this
section. There are no protections under this bill that
protects the home of the family of the dog fighter who is
probably in prison because of his crime.
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SB 1775 (Calderon)
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The ACLU opposes this bill and this provision
specifically stating:
This bill authorizes the civil forfeiture of
property, including real property, when "used
to promote, further, or facilitate the crimes
listed in Section 597.5." The forfeiture
proposed in this bill violates the fundamental
constitutional rights, including the right not
to be deprived of property without due process
and the right to be free from punishment that
is disproportionate to the offense. In fact,
this bill permits property forfeiture that is
not allowed for much more serious crimes like
murder, mayhem or kidnapping. Moreover,
nothing in this bill protects an innocent owner
or the community property interest of an owner
of real property.
SHOULD PROPERTY USED TO FACILITATE DOGFIGHTING BE SUBJECT TO
FORFEITURE?
IS DOGFIGHTING MORE SERIOUS THAN OTHER OFFENSES SUCH AS MURDER,
MAYHEM AND KIDNAPPING SO THAT THE FORFEITURE IN THESE CASES
SHOULD BE BROADER THAN IN THOSE CASES?
DOES THIS BILL CONTAIN THE INNOCENT OWNER TYPE PROTECTIONS THAT
EXIST IN DRUG FORFEITURE WHERE ITEMS THAT ARE USED TO FURTHER
BUT NOT ACQUIRED BY THE CRIME MAY BE FORFEITED?
c. Distribution of funds
The existing forfeiture for criminal profiteering
statutes specify how the funds shall be distributed.
This bill copies that existing scheme but also includes
the distribution of funds to "local non-profits whose
primary activities include ongoing rescue, foster, or
other care of animals that are the victims of
dogfighting, and to law enforcement entities, including
multi agency task forces, that actively investigate and
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SB 1775 (Calderon)
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prosecute animal fighting crimes."
The supporters point out that having part of the
forfeiture money go to the nonprofits will assist in
their burden of rescue and caring for the animals. A
question could be raised however about whether having
part of the proceeds go to law enforcement who will be
investigating and prosecuting these crimes could lead to
an overbroad reach of what items are forfeitable in a
statute where what is used to "facilitate" the crime
could be interpreted quite broadly.
SHOULD PART OF THE FUNDS GO TO NONPROFIT ANIMAL RESCUES AND TO
LAW ENFORCEMENT WHO INVESTIGATE THESE OFFENSES?
DOES HAVING THE PROFITS OF A FORFEITURE SALE GO TO THE AGENCIES
THAT WILL ARREST AND PROSECUTE THESE OFFENSES SET UP A BOUNTY
SITUATION WHERE THE AGENCY MAY BE MOTIVATED TO DETERMINE THAT
MORE ITEMS WERE USED TO "FACILITATE" THE ILLEGAL ACTIVITY?
d. Potential alternative
In the declarations and findings this bill states:
Dog fighters are violent criminals who engage in a
whole host of peripheral criminal activities. Many
are heavily involved in organized crime,
racketeering, drug distribution, and gang-related
criminal activity, and they arrange and attend the
fights as a forum for gambling and drug
trafficking. These activities, both individually
and collectively, present a clear and present
danger to public order and safety and are not
constitutionally protected.
This sounds like the "criminal profiteering" activity for
which forfeiture is currently provided for in Penal Code
Section 186 et seq. The procedures in this bill are taken
directly from the provisions in that chapter. Instead of
creating an additional scheme with a broader forfeiture
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SB 1775 (Calderon)
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right but no additional protections, it makes more sense to
add felony violations of Penal Code Section 597.5 to the
list of crimes in the existing provision.
WOULD IT BE MORE APPROPRIATE TO ADD FELONY DOGFIGHTING TO THE
EXISTING FORFEITURE FOR THE CRIMINAL PROFITEERING SCHEME?
(More)
3. Legislative Findings and Declarations
This bill contains the following legislative findings and
declarations, which with the proposed amendments will be
uncodified.
Dogfighting is an insidious underground organized
crime and, notwithstanding its absolute prohibition in
America, this crime has reached epidemic proportions
in all urban communities and continues to thrive in
many rural areas as well.
Many communities have been morally, socially, and
culturally scarred by the continuing presence of
dogfighting. Children who are exposed to the
unfathomable violence of dogfighting are conditioned
to believe that violence is normal and are
systematically desensitized to the consequential
suffering.
Dog fighters are violent criminals who engage in a
whole host of peripheral criminal activities. Many
are heavily involved in organized crime, racketeering,
drug distribution, and gang-related criminal activity,
and they arrange and attend the fights as a forum for
gambling and drug trafficking. These activities, both
individually and collectively, present a clear and
present danger to public order and safety and are not
constitutionally protected.
An effective means of punishing and deterring the
criminal activities of dog fighters is through
forfeiture of the property, both personal and real,
profits, proceeds, and the instrumentalities acquired,
accumulated, or used by dogfighting participants,
organizers, transporters of animals and equipment,
property owners who allow their premises to be used
for dogfighting and other activities in support of
dogfighting, and breeders and trainers of fighting
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SB 1775 (Calderon)
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dogs, and persons who steal and illegally obtain dogs
and other animals for fighting, including bait and
sparring animals.
Dogfighting not only encourages and furthers
antisocial values and violence but it also results in
the antisocialization of dogs thereby making them a
danger to the community at large. Police officers,
firefighters, utility, and other municipal workers are
at increasing risk in the course of their employment on
both public and private property because of the
epidemic number of dogs that have been bred and trained
to fight each other as well as other animals, small
children, and adults.
Public animal shelters, humane societies, and
nonprofit animal rescue and adoption groups that
rescue and care for animals bear much of the social,
economic, and moral burden caused by dogfighting.
Specialized multiagency law enforcement entities such
as anticruelty task forces comprised of municipal
animal control, local police, sheriff, and city and
district attorneys investigating, arresting, and
prosecuting dogfighting and other crimes against
animals are a critical component of the goal of
reducing and eliminating this heinous crime in
California, yet these agencies suffer from limited
resources.
Forfeited property, profits, proceeds, and
instrumentalities acquired, accumulated, or used by
dogfighting participants and others acting in support
of dogfighting, should be sold to support efforts to
care for abused animals and the law enforcement
entities specially formed to address dogfighting and
animal cruelty, wherever possible. Distribution of
the above should be determined by the state or local
governing bodies, depending upon which is responsible
for the prosecution as a result of which the proceeds
were seized.
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4. Amendments to be Offered in Committee
The author intends to take the following amendments in
Committee:
De-codify the findings and declarations.
On page 3, line 24 after the words "Section 597.5 or
used," strike : "promote, further, or"
On page 3, lines 19, 24 and 25 and
On page 5, line 35 replace Section 597.5 with Section
597.5(a).
On page 3, line 29, after the words "property owners
who" insert : "knowingly"
On page 5, line 38, after the words "purchaser for
value," insert : ", who was without knowledge that the
property was intended to be used for a purpose which would
subject it to forfeiture under this section, or is subject
to forfeiture under this section,"
On page 6, line 3, after the words "not find that,"
insert : "an owner, mortgagor,"
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