BILL ANALYSIS AB 242 Page 1 Date of Hearing: April 14, 2009 Chief Counsel: Gregory Pagan ASSEMBLY COMMITTEE ON PUBLIC SAFETY Jose Solorio, Chair AB 242 (Nava) - As Amended: April 13, 2009 SUMMARY : Increases the penalties for being a spectator at a dog fighting exhibition, and for owning or possessing a fighting dog, or for causing a dog to fight. Specifically, this bill : 1)Increases the penalty from a misdemeanor punishable by up to six months in a county jail to an alternate felony/misdemeanor punishable by 16 months, 2 or 3 years in the state prison, or by imprisonment in a county jail not to exceed one year, or by a fine not to exceed $1,000, or by both, for any person to be 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 that exhibition. 2)Increases the penalty from an alternate felony/misdemeanor to a straight felony, and requires that a fine not to exceed $50,000 be imposed, for any person who possesses or trains a fighting dog, or causes a dog to fight with another dog. EXISTING LAW : 1)Provides that any person that does any of the following is guilty of a felony and is punishable by imprisonment in a state prison for 16 months, 2 or 3 years, or by a fine not to exceed $50,000, or by both such fine and imprisonment: a) Owns, possesses, keeps, or trains any dog, with the intent that the dog shall be engaged in an exhibition of fighting with another dog. b) For amusement or gain, causes any dog to fight with another dog, or causes any dogs to injure each other. c) Permits any of the above acts to be done on any premises under his or her control, or aid or abets that act. [Penal AB 242 Page 2 Code Section 597.5(a).] 2)States that any person that 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 exhibition, fighting or injuring with the intent to be present at the exhibition, fighting, or injuring is guilty of a misdemeanor punishable by imprisonment in a county jail not to exceed six months, or by a fine not exceeding $1,000; or by both. [Penal Code Section 597.5(b).] 3)Provides that any person who causes any animal, not including a dog, to fight with another animal, or permits the same to be done on any property under his or her control, or aids or abets the fighting of any animal is guilty of a misdemeanor, punishable by up to one year in the county jail or by a fine not to exceed $5,000; or both. [Penal Code Section 597b(a).] 4)Provides that any person who causes a cock to fight with another cock, or permits the same to be done on any property under his or her control, and any person who aid or abets the fighting of any cock or is present as a spectator is guilty of a misdemeanor, punishable by imprisonment in the county jail not to exceed one year, or by a fine not to exceed $5,000, or by both. [Penal Code Section 597b(b).] 5)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 at that exhibition, or is knowingly present where preparations are being made for the exhibition, fighting, or injuring of an animal is guilty of a misdemeanor punishable by imprisonment in a county jail not to exceed six months, or by a fine not exceeding $1,000, or by both. (Penal Code Section 597c.) 6)Provides that any person who owns, possesses, keeps or trains any bird or other animal with the intent that that it be used an exhibition of fighting is guilty of a misdemeanor, punishable by imprisonment in the county jail not to exceed one year; by a fine not to exceed $5,000, or by both. (Penal Code Section 597j.) 7)Provides that any person who maliciously and intentionally AB 242 Page 3 maims, mutilates, tortures, or wounds a living animal or maliciously and intentionally kills an animal is guilty of either a misdemeanor or felony, punishable by imprisonment in a county jail for up to one year, or by a fine up to $20,000; or by imprisonment in state prison for 16 months, 2 or 3 years, or by a fine up to $20,000. [Penal Code Section 597(a).] 8)Provides that any person who overdrives, overloads, overworks, tortures, torments, deprives of drink, cruelly beats, or mutilates an animal is guilty of either a misdemeanor or felony, punishable by imprisonment in a county jail for up to one year and by a fine up to $20,000; or by imprisonment in state prison for 16 months, 2 or 3 years and by a fine up to $20,000. [Penal Code Section 597(b).] FISCAL EFFECT : Unknown COMMENTS : 1)Author's Statement . According to the author, "The Humane Society of the United States, states that dog fighting is a 'sadistic contest' in which two dogs - specifically bred, conditioned and trained to fight - are placed in a pit (generally a small arena enclosed by plywood walls) to fight each other for the spectators' entertainment and gambling. Fights average nearly an hour in length and often last more than two hours. Dogfights end when one of the dogs will not or cannot continue. Unfortunately, dogs used in fights often die of blood loss, shock, dehydration, exhaustion or infection hours or even days after the event. "Spectators provide much of the profits associated with dog fighting. The money generated by admission fees and gambling helps keep this 'sport' alive. Because dogfights are illegal and therefore not widely publicized, spectators do not merely 'happen upon a fight' - they seek it out. "It is estimated that 40,000 people are involved in this blood sport resulting in injury or death to nearly 250,000 dogs annually. Law enforcement projects that at least 100,000 additional persons participate in 'street level' dogfights. In fact, there have already been two vicious dog fighting cases prosecuted in 2008 in California alone - one in Los Angeles and one in Fresno - involving over 30 dogs between AB 242 Page 4 them. "Dogfights come hand-in-hand with a host of other concerns. Illegal gambling is the norm at fights. Firearms and other weapons are typically found at events, due to the large amount of cash present. Illegal drugs are often sold and used at dogfights. And, perhaps most disturbingly, young children are sometimes present at events which can promote insensitivity to animal suffering, enthusiasm for violence and a lack of respect for the law. A study by the Chicago Police of incidents between 2001 and 2004 found that in 362 dog fighting cases, 59% of dog owners had gang affiliations and 66% had been arrested at least twice before. "With the introduction of AB 242, I hope that by making spectatorship at dogfights in California a felony, this illegal activity and its detrimental effects on animals will be dramatically reduced or eliminated." 2)Penalty Increase : Under existing law, any person who is knowingly present as a spectator at any place where dogs are fighting is guilty of a misdemeanor, punishable by up to six months in a county jail; by a fine not to exceed $1,000; or by both a fine and imprisonment. [Penal Code Section 597.5(b).] Also, any person who keeps or trains a dog with the intent that the dog be engaged in an exhibition of fighting, or causes a dog to fight another dog, is guilty of a felony, punishable by imprisonment in the state prison for 16 months, 2 or 3 years in the state prison, or by a fine not exceeding $50,000; or by both a fine and imprisonment. [Penal Code Section 597.5(a).] The alternative fine contained in this penalty makes this offense an alternate felony/misdemeanor. (Penal Code Section 18.) This bill eliminates the alternative fine, thus, making the offense a 'straight' felony, which means the offense may not be punished by imprisonment in the county jail. This bill also increases the penalty for being a spectator at a dog fight from a maximum of six months in a county jail to 16 months, 2 or 3 years in the state prison. Should the penalty for being a spectator at a dog fight be the same as the penalty for those who keep, train, and actually fight dogs? Why is the existing six-month county jail penalty inadequate for being convicted of being a spectator at a dog fight? It should also be noted that the penalty for being a AB 242 Page 5 spectator at other animal fights, including cock fighting, is a misdemeanor, punishable by up to six months in the county jail; by a fine not to exceed $1,000; or by both. (Penal Code Section 597c.) As a result, this bill creates an inconsistency between the penalties for being a spectator at a dog fight and being a spectator at a cock fight. Should the Legislature create inconsistent penalties for what is essentially the same conduct - being a spectator at these very similar events? 3)"Three Strikes" Implications : It has been argued that contiguous states around California have made being a spectator at a dog fight a felony. However, these states do not have a draconian "Three Strikes" law as does California. Under California's Three Strikes law, if this bill were enacted, a person convicted of this newly created felony of being a spectator at dog fight and has two prior "serious" or "violent" prior convictions could be sentenced to a term of 25-years-to-life in the state prison. 4)Prison Overcrowding and a Court-Ordered Population Cap : Concerns for overcrowding arise because of the increase in the prison term when the offense is already punishable by a substantial prison term. As California's prison crisis worsens, close attention should be paid to legislation that increases prison overcrowding. The California Policy Research Center (CPRC) recently issued a report on the status of California's prisons. The report stated, "California has the largest prison population of any state in the nation, with more than 171,000 inmates in 33 adult prisons, and the state's annual correctional spending, including jails and probation, amounts to $8.92 billion. Despite the high cost of corrections, fewer California prisoners participate in relevant treatment programs than comparable states, and its inmate-to-officer ratio is considerably higher. While the nation's prisons average one correctional officer to every 4.5 inmates, the average California officer is responsible for 6.5 inmates. Although officer salaries are higher than average, their ranks are spread dangerously thin and there is a severe vacancy rate." [Petersilia, "Understanding California Corrections", California Policy Research Center, (May 2006).] California's prison population will likely exceed 180,000 by 2010. According to the Little Hoover Commission, "Lawsuits filed in AB 242 Page 6 three federal courts alleging that the current level of overcrowding constitutes cruel and unusual punishment ask that the courts appoint a panel of federal judges to manage California's prison population. United States District Judge Lawrence Karlton, the first judge to hear the motion, gave the State until June 2007 to show progress in solving the overpopulation crisis. Judge Karlton clearly would prefer not to manage California's prison population. At a December 2006 hearing, Judge Karlton told lawyers representing the Schwarzenegger administration that he is not inclined 'to spend forever running the state prison system.' However, he also warned the attorneys, 'You tell your client June 4 may be the end of the line. It may really be the end of the line.' "Despite the rhetoric, 30 years of 'tough on crime' politics has not made the state safer. Quite the opposite: today thousands of hardened, violent criminals are released without regard to the danger they present to an unsuspecting public. Years of political posturing have taken a good idea - determinate sentencing - and warped it beyond recognition with a series of laws passed with no thought to their cumulative impact. And these laws stripped away incentives for offenders to change or improve themselves while incarcerated. "Inmates, who are willing to improve their education, learn a job skill or kick a drug habit find that programs are few and far between, a result of budget choices and overcrowding. Consequently, offenders are released into California communities with the criminal tendencies and addictions that first led to their incarceration. They are ill-prepared to do more than commit new crimes and create new victims." [Little Hoover Commission Report, "Solving California's Corrections Crisis: Time is Running Out", pg. 1, 2 (2007).] On February 9, 2009, a United States district court three-judge panel issued a tentative ruling mandating the State of California to resolve chronic prison overcrowding. In the tentative ruling, the judges state "[t]he evidence is compelling that there is no relief other than a prisoner release order that will remedy the unconstitutional prison conditions." In light of the escalating overcrowding situation in California's state prison system, should the Legislature make it a felony punishable by imprisonment in the state prison for any person convicted of being a spectator at a dog fight? AB 242 Page 7 5)Arguments in Support : a) According to the Humane Society of the United States , "AB 242 would increase criminal penalties for being a spectator at a dogfight. Participating in dogfighting and possessing dog with the intent to fight them are already felonies in California, and all 40 states treat dogfighting as a felony. However, California's dogfighting laws rank 42nd nationwide, due in part to weak spectator penalties. Currently, 22 states have felony spectator penalties. By extending felony penalties to spectators, AB 242 puts teeth in existing law, and also give prosecutors leverage to coerce spectators to testify against dogfighters." b) According to the American Society for the Prevention of Cruelty to Animals , "Dog fighting is not only a cruel and barbaric activity in and of itself, but it is almost always accompanied by other illegal activities such as gambling, money laundering, drugs, firearms, alcohol and gang fights. In addition, young children are most always present and are thereby forded to witness the violence of dog fighting. "It is important that those individuals who knowingly participate in these cruel activities be punished appropriately. By increasing the penalties for spectators, the State of California will be letting violators know that participation in these inhumane activities will be dealt with as a serious crime." 6)Argument in Opposition : a) According to the California Responsible Pet Owners Coalition , "Currently, attorneys already have the authority to prosecute as a misdemeanor being present at the preparation for or exhibition of a dog fight. This bill proposes to make it a felony. This bill would increase existing criminal penalties under Penal Code Section 597.5 related to dogfightng. The felony classification will only sere to unnecessarily overwhelm more of our already overcrowded prison programs. The prison population is currently under examination for overcrowding, so adding to that situation when existing penalties are sufficient is pointless, unnecessary and fiscally unsound" AB 242 Page 8 b) According to the California Attorneys for Criminal Justice (CACJ), "CACJ opposes the amendments to Penal Code Section 597.5 because we believe that there is no sound policy basis to punish someone in the spectator status equally with the organizers and perpetrators of the crime of dog fighting. The organizers and persons engaging in raising dogs for dog fights are already punishable on the felony level. The crime of being a spectator is also already punished, and is punished on a level commensurate with the individual's involvement, as a misdemeanor. To increase punishment to allow state prison sentences for this activity without any basis to show this would either deter or prevent illegal activity, we believe would be a senseless escalation of penalty." REGISTERED SUPPORT / OPPOSITION : Support American Society for the Prevention of Cruelty to Animals Born Free USA California Peace Officers' Association California Police Chiefs Association Fresno City Council Humane Society of the United States Humane Society Veterinary Medical Association Paw Pac Five Private Citizens Opposition Animal Council California Attorneys for Criminal Justice California Federation of Dog Clubs California Responsible Pet Owners' Coalition Feline Friends International We the People for Pets United States Society for the Prevention of Cruelty to Others Analysis Prepared by : Gregory Pagan / PUB. S. / (916) 319-3744