BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                A
                             2009-2010 Regular Session               B

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          AB 242 (Nava)                                               
          As Amended June 1, 2009 
          Hearing date: July 2, 2009
          Penal Code
          MK:mc


                                     DOG FIGHTING  

                                       HISTORY

          Source:  The Humane Society of the United States

          Prior Legislation: AB 2281 (Nava) - 2008, held in Assembly  
          Appropriations

          Support: California Federation for Animal Legislation; Action  
                   for Animals; Born Free USA; Humane Society Veterinary  
                   Medical Association; United Animal Nations; California  
                   Animal Control Directors Association; California Animal  
                   Association; City of West Hollywood; The PAW Project;  
                   The Marin Humane Society; California Peace Officers'  
                   Association; California Police Chiefs Association;  
                   American Society for the Prevention of Cruelty to  
                   Animals; Paw PAC; City of Long Beach; California  
                   District Attorneys Association; a number of individuals

          Opposition:The Animal Council; California Attorneys for Criminal  
                   Justice; California Responsible Pet Owners  
                   Coalition/CaRPOC

          Assembly Floor Vote:  Ayes 77 - Noes 0





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                                                              AB 242 (Nava)
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                                         KEY ISSUE
           
          SHOULD THE MISDEMEANOR PENALTY FOR BEING A SPECTATOR AT A DOG FIGHT  
          BE INCREASED TO A ONE YEAR MISDMEANOR WITH A $5,000 FINE?



                                       PURPOSE

          The purpose of this bill is to increase the penalty for being a  
          spectator at a dog fight.
          
           Existing law  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   
          597b(a).)
           
           Existing law  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 aids 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  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 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  597c.)

           Existing law  provides that any person who owns, possesses, keeps  




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          or trains any bird or other animal with the intent that it be  
          used in 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   
          597j.)
           
           Existing law  provides that any person who maliciously and  
          intentionally 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   
          597(a).)
           
           Existing law  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  597(b).)

           Existing law  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:
                 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 any of the above acts to be done on any  
               premises.  (Penal Code  597.5(a).)
           
           Existing law  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  




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          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  597.5(b).)

           This bill  instead provides that the penalty for being a  
          spectator at a dog fight is up to one year in county jail and/or  
          a fine up to $5,000.
                                          
                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
          
          California continues to face a severe prison overcrowding  
          crisis.  The Department of Corrections and Rehabilitation (CDCR)  
          currently has about 170,000 inmates under its jurisdiction.  Due  
          to a lack of traditional housing space available, the department  
          houses roughly 15,000 inmates in gyms and dayrooms.   
          California's prison population has increased by 125% (an average  
          of 4% annually) over the past 20 years, growing from 76,000  
          inmates to 171,000 inmates, far outpacing the state's population  
          growth rate for the age cohort with the highest risk of  
          incarceration.<1>

          In December of 2006 plaintiffs in two federal lawsuits against  
          CDCR sought a court-ordered limit on the prison population  
          pursuant to the federal Prison Litigation Reform Act.  On  
          February 9, 2009, the three-judge federal court panel issued a  
          tentative ruling that included the following conclusions with  
          respect to overcrowding:

               No party contests that California's prisons are  
               overcrowded, however measured, and whether considered  
               in comparison to prisons in other states or jails  
               ----------------------
          <1>  "Between 1987 and 2007, California's population of ages 15  
          through 44 - the age cohort with the highest risk for  
          incarceration - grew by an average of less than 1% annually,  
          which is a pace much slower than the growth in prison  
          admissions."  (2009-2010 Budget Analysis Series, Judicial and  
          Criminal Justice, Legislative Analyst's Office (January 30,  
          2009).)



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               within this state.  There are simply too many  
               prisoners for the existing capacity.  The Governor,  
               the principal defendant, declared a state of emergency  
               in 2006 because of the "severe overcrowding" in  
               California's prisons, which has caused "substantial  
               risk to the health and safety of the men and women who  
               work inside these prisons and the inmates housed in  
               them."  . . .  A state appellate court upheld the  
               Governor's proclamation, holding that the evidence  
               supported the existence of conditions of "extreme  
               peril to the safety of persons and property."  
               (citation omitted)  The Governor's declaration of the  
               state of emergency remains in effect to this day.

               . . .  the evidence is compelling that there is no  
               relief other than a prisoner release order that will  
               remedy the unconstitutional prison conditions.

               . . .

               Although the evidence may be less than perfectly  
               clear, it appears to the Court that in order to  
               alleviate the constitutional violations California's  
               inmate population must be reduced to at most 120% to  
               145% of design capacity, with some institutions or  
               clinical programs at or below 100%.  We caution the  
               parties, however, that these are not firm figures and  
               that the Court reserves the right - until its final  
               ruling - to determine that a higher or lower figure is  
               appropriate in general or in particular types of  
               facilities.

               . . .

               Under the PLRA, any prisoner release order that we  
               issue will be narrowly drawn, extend no further than  
               necessary to correct the violation of constitutional  
               rights, and be the least intrusive means necessary to  
               correct the violation of those rights.  For this  
               reason, it is our present intention to adopt an order  




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               requiring the State to develop a plan to reduce the  
               prison population to 120% or 145% of the prison's  
               design capacity (or somewhere in between) within a  
               period of two or three years.<2>

          The final outcome of the panel's tentative decision, as well as  
          any appeal that may be in response to the panel's final  
          decision, is unknown at the time of this writing.

           This bill  does not appear to aggravate the prison overcrowding  
          crisis outlined above.


                                      COMMENTS

          1.    Need for This Bill  

          According to the author:

              According to the Humane Society of the United States,  
              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  
              -----------------------
          <2>  Three Judge Court Tentative Ruling, Coleman v.  
          Schwarzenegger, Plata v. Schwarzenegger, in the United States  
          District Courts for the Eastern District of California and the  
          Northern District of California United States District Court  
          composed of three judges pursuant to Section 2284, Title 28  
          United States Code (Feb. 9, 2009).



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              dogfights are illegal and therefore not widely  
              publicized, spectators do not merely "happen upon a  
              fight" - they seek it out.

              Dog fighting is also on the rise.  According to  
              Pet-Abuse.com, a Website that attempts to keep track of  
              dog fighting citations, the number of police cases for  
              this activity for the past three years are as follows:

               2005: 129 cases
               2006: 127 cases
               2007: 167 cases

              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 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.




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              California Penal Code Section 597.5 (a) establishes that  
              it is a felony for someone to:
              a)  own, possess, keep or train any dog to fight with  
              another dog;
              b)  for amusement or gain, cause any dog to fight with  
              another dog; or
              c)  permit any of the above acts to be conducted on any  
                premises under his or her charge or control.

              However, in California, it is currently only a  
              misdemeanor for someone to attend a dogfight (Penal Code  
               597.5 (b)).  

              Under federal law, it is a felony to organize a dogfight  
              or participate in interstate commerce or activities  
              related to animal fighting.  Each offense - one per dog  
              - is punishable by up to a $250,000 fine and a  
              three-year jail term.

























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              Dog fighting is now a felony in all 50 states and the  
              District of Columbia.

              48 states, the District of Columbia, Puerto Rico, and  
              the Virgin Islands prohibit being a spectator at a  
              dogfight.  In fact, all of California's neighboring  
              states now consider dogfight spectatorship a felony (a  
              similar measure was signed into law in Oregon earlier  
              this month) - effectively making California a  
              "misdemeanor island" for this violation. 

              Assembly Bill 242 was initially introduced to rectify  
              this situation by elevating spectatorship at a dogfight  
              in California from a misdemeanor to a felony.  Over the  
              course of the Legislative Session, however, it has been  
              amended to simply enhance the penalties associated with  
              the spectatorship misdemeanor.

          2.    Increased Penalty for Being a Spectator  

          Under existing law 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 that exhibition or at any other fighting or  
          injuring with the intent to be present at the exhibition,  
          fighting, or injuring, is guilty of a misdemeanor punishable by  
          imprisonment in the county jail up to 6 months and/or a fine of  
          up to $1,000 plus penalty assessments.  Existing penalty  
          assessments are approximately 270 percent of the base fine so  
          the actual fine would be up to $3,700.  This bill increases the  
          penalty to up to one year in county jail and/or a fine up to  
          $5,000 plus penalty assessments for a total fine of $18,500.

          Supporters of this bill argue that California has weak penalties  
          for spectators since other states have felony penalties for  
          being a spectator at a dog fight.  Specifically, the Humane  
          Society Veterinary Medical Association states:





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              Dog fighting is a brutal and inhumane activity.  Pitted  
              against each other in battles that can rage for hours,  
              the animals suffer severe injuries, often dying of blood  
              loss, shock, dehydration, or infection hours, or even  
              days later.  Dog fights also pose a substantial public  
              safety risk, since fighting animals is known to be  
              associated with other criminal activities such as  
              gambling, weapons possession, narcotics trafficking, and  
              various violent crimes.

              Participating in dog fighting and possessing dogs with  
              the intent to fight them are already felonies in  
              California, and all 50 states consider dog fighting a  
              felony offense.  However, California's dog-fighting laws  
              rank 42nd in severity nationwide, due in part to weak  
              spectator penalties that make it difficult to prosecute  
              all persons involved.  When police raid a dog fight, it  
              is extremely difficult to distinguish the spectators  
              from those participants waiting to fight their dogs.   
              Thus, many animals fighters manage to avoid prosecution,  
              or receive minimal penalties.  Furthermore, because  
              states contiguous to California do have more stringent  
              felony spectator provisions, dog-fight operators are  
              incentivized to conduct their bloody business within our  
              states.

          Opponents argue that the existing penalties are appropriate for  
          spectators who have a different level of culpability than  
          participants.

          SHOULD THE PENALTY FOR BEING A SPECTATOR AT A DOGFIGHT BE  
          INCREASED TO UP TO ONE YEAR IN JAIL AND UP TO A $5,000 FINE?


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