BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Gloria Romero, Chair S 2007-2008 Regular Session B 1 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? (More) SB 1775 (Calderon) PageB 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 (More) SB 1775 (Calderon) PageC 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; (More) SB 1775 (Calderon) PageD 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 (More) SB 1775 (Calderon) PageE 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 (More) SB 1775 (Calderon) PageF 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 (More) SB 1775 (Calderon) PageG 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 (More) SB 1775 (Calderon) PageH 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 (More) SB 1775 (Calderon) PageI 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 (More) SB 1775 (Calderon) PageJ 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 (More) SB 1775 (Calderon) PageK 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 (More) SB 1775 (Calderon) PageL 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 (More) SB 1775 (Calderon) PageM 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). (More) SB 1775 (Calderon) PageN 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. (More) SB 1775 (Calderon) PageO 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 (More) SB 1775 (Calderon) PageP 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 (More) SB 1775 (Calderon) PageQ 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 (More) SB 1775 (Calderon) PageR 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? (More) SB 1775 (Calderon) PageS 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. (More) SB 1775 (Calderon) PageT 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 (More) SB 1775 (Calderon) PageU 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 (More) SB 1775 (Calderon) PageV 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 (More) SB 1775 (Calderon) PageX 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. SB 1775 (Calderon) PageY 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," ***************