BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair A 2009-2010 Regular Session B 2 4 2 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 (More) AB 242 (Nava) PageB 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 (More) AB 242 (Nava) PageC 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 (More) AB 242 (Nava) PageD 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).) (More) AB 242 (Nava) PageE 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 (More) AB 242 (Nava) PageF 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). (More) AB 242 (Nava) PageG 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. (More) AB 242 (Nava) PageH 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. (More) 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: (More) AB 242 (Nava) PageJ 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? .***************