BILL ANALYSIS AB 243 Page 1 Date of Hearing: April 14, 2009 Counsel: Nicole J. Hanson ASSEMBLY COMMITTEE ON PUBLIC SAFETY Jose Solorio, Chair AB 243 (Nava) - As Amended: April 13, 2009 SUMMARY : Creates a misdemeanor against any person convicted of animal abuse who, thereafter, owns, possesses, maintains, has custody of, resides with, or cares for any animal within a specified period. Specifically, this bill : 1)Provides that any person who has been convicted of a misdemeanor violation of specified sections relating to animal cruelty and who, within five years of the conviction, owns, possesses, maintains, has custody of, resides with or cares for any animal is guilty of a public offense, punishable by imprisonment in a county jail not exceeding one year; by a fine of not more than $1,000; or by both that imprisonment and fine. 2)Provides that any person who has been convicted of a felony violation of specified sections relating to animal cruelty and who, within 10 years of the conviction owns, possesses, maintains, has custody of, resides with or cares for any animal is guilty of a public offense, punishable by imprisonment in a county jail not exceeding one year; by a fine of not more than $1,000; or by both that imprisonment and fine. EXISTING LAW : 1)Provides that upon the conviction of a person charged with a violation of animal abuse, all animals lawfully seized and impounded with respect to the violation shall be adjudged by the court to be forfeited and shall thereupon be transferred to the impounding officer or appropriate public entity for proper adoption or other disposition. The court may also order, as a condition of probation, that the convicted person be prohibited from owning, possessing, caring for, or having any contact with animals of any kind and require the convicted person to immediately deliver all animals in his or her AB 243 Page 2 possession to a designated public entity for adoption or other lawful disposition or provide proof to the court that the person no longer has possession, care, or control of any animals. [Penal Code Section 597.1(k).] 2)Creates a misdemeanor punishable by a maximum of one year in the county jail and a fine of not more than $20,000 to maim, mutilate, torture, or wound a living animal or maliciously or intentionally kill an animal. [Penal Code Section 597(a).] 3)States that every person having charge or custody of an animal who overdrives; overloads; overworks; tortures; torments; deprives of necessary sustenance, drink, or shelter; cruelly beats, mutilates, or cruelly kills; or causes or procures any animal to be so overdriven; overloaded; driven when overloaded; overworked; tortured; tormented; deprived of necessary sustenance, drink, shelter; or to be cruelly beaten, mutilated, or cruelly killed is, for every such offense, guilty of a crime punishable as an alternate misdemeanor/felony and by a fine of not more than $20,000. [Penal Code Section 597(b).] 4)Mandates that whoever carries or causes to be carried in or upon any vehicle or otherwise any domestic animal in a cruel or inhuman manner, or knowingly and willfully authorizes or permits that animal to be subjected to unnecessary torture, suffering, or cruelty of any kind, is guilty of a misdemeanor; and whenever any such person is taken into custody therefor by any officer, such officer must take charge of such vehicle and its contents, together with the horse or team attached to such vehicle, and deposit the same in some place of custody; and any necessary expense incurred for taking care of and keeping the same, is a lien thereon, to be paid before the same can be lawfully recovered; and if such expense, or any part thereof, remains unpaid, it may be recovered, by the person incurring the same, of the owner of such domestic animal, in an action therefor. (Penal Code Section 597a.) 5)Provides that any person who causes any animal 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 present as a spectator is guilty of a misdemeanor, punishable by up to six months in the county jail; a by a fine not to exceed $1,000; or both. [Penal Code Section 597b(a).] AB 243 Page 3 6)Necessitates 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; by a fine not to exceed $5,000; or by both. [Penal Code Section 597b(b).] 7)Makes it unlawful for any person to tie or attach or fasten any live animal to any machine or device propelled by any power for the purpose of causing such animal to be pursued by a dog or dogs. (Penal Code Section 597h.) 8)Directs that any person who owns, possesses, or trains any bird or animal with the intent that the cock or other bird shall be engaged in an exhibition of fighting by his or her vendee or any other person is guilty of a misdemeanor, punishable by imprisonment in the county jail not exceed six months; by a fine not to exceed $1,000; or by both. (Penal Code Section 597j.) 9)States that ever person who willfully abandons any animal is guilty of a misdemeanor. (Penal Code Section 597s.) 10)Declares that every owner, driver, or keeper of any animal who permits the animal to be in any building, enclosure, lane, street, square, or lot of any city, county, city and county, or judicial district without proper care and attention is guilty of a misdemeanor. (Penal Code Section 597.1.) 11) Provides that any person who 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; 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 the amusement or gain, causes any dog to fight with another dog, or causes any dogs to injure each other. c) Permits any of the aforementioned acts in violation to be done on any premises under his or her charge or control, or aids or abets that act. (Penal Code Section 597.5.) AB 243 Page 4 FISCAL EFFECT : Unknown COMMENTS : 1)Author's Statement : According to the author, "Those who have neglected animals have demonstrated that they cannot be trusted to provide animals in their care with the basics required by law. In the case of overt cruelty, defendants convicted of purposely harming an animal have demonstrated that they are capable of violence toward an animal. And, in the case of animal fighting, those convicted of participating in dog or cockfighting have demonstrated a lack of regard for an animal's welfare and a lack of concern for the suffering that is associated with animal 'blood sports.' " "The recidivism rate of animal cruelty and neglect crimes is, according to most studies, virtually 100%. As with laws that prevent sex offenders from having contact with underage children, a law prohibiting abusers from contact with animals will separate offenders from potential new victims. "AB 243 will make it mandatory for a judge to prohibit a person convicted of specified animal-related crimes from owning or possessing, caring for, or having any contact with animals for a minimum period of time. This measure will also give a prosecutor the option of either asking that a defendant's probation be violated or filing a separate misdemeanor criminal charge for defendants who violate their 'no ownership' order. By requiring this order, there will be a dramatic reduction or elimination of repeated acts of animal cruelty and neglect in California." 2)Background : According to information provided by the author, "Currently, California Penal Code Section 597.1(k) states that as a condition of probation, a court may order that a person convicted of certain animal related crimes and placed on probation be prohibited from owning, possessing, or having contact with animals. However, a court has no ability to issue a 'no ownership' order for defendants convicted of felony animal cruelty offenses who are sentenced to state prison. "The deficiencies in this law are numerous. First, prohibiting ownership of an animal for a certain period of time following AB 243 Page 5 a conviction of animal cruelty should be mandatory rather than optional. Defendants convicted of mistreating animals have demonstrated that they are incapable or unwilling to care for animals properly and, therefore, should not be permitted to own animals for a defined period of time following their conviction. "Second, as it stands, once a defendant is off probation, a judge has no jurisdiction or authority to order a defendant not to own, possess, or reside with animals, despite the fact that in some cases, it may be appropriate that a defendant be ordered not to possess animals for a period longer than the time he/she will be on probation. AB 243 will allow a court to extend the 'no ownership' prohibition beyond the probationary period. "Third, a judge loses his/her jurisdiction - and all ability to order a defendant to do anything, including issuing a 'no ownership' order - once a defendant is sent to prison. The sentencing scheme for felony animal cruelty is 16 months, 2 years, 3 years; an offender would serve half the amount of that time in prison. If a defendant's crime was serious enough to warrant a prison sentence, he/she would be prohibited from owning animals following release from custody. AB 243 will give a court the ability to issue a 'no ownership' order to those defendants who have been sentenced to prison. "Finally, California law allows for an optional 'no ownership' prohibition only in cases where a defendant has been convicted of three particular crimes. There are several animal-related crimes currently not listed as candidates for the probationary "no contact" condition that clearly should be included, such as dog fighting and cock fighting. AB 243 applies to all appropriate and relevant animal-related crimes. "Currently, seven other jurisdictions (Delaware, Kansas, Nebraska, Oregon, Washington, West Virginia, U.S. Virgin Islands) have laws that make it mandatory for a court to prohibit ownership of animals following a conviction for an animal-related offense. These laws vary in the length of time a convicted person cannot own an animal; most have a floor of 5 years and a ceiling of 15 years, although one law (U.S. Virgin Islands) allows a court to prohibit ownership of an animal 'up to the lifetime of the offender.' " AB 243 Page 6 3)Prohibiting Pet Ownership beyond the Period of Probation : "Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation. The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions. The primary goal of probation is to ensure '[t]he safety of the public ? through the enforcement of court-ordered conditions of probation.' (Pen. Code, 1202.7.)" [People v. Carbajal (1995) 10 Cal.4th 1114, 1120.] Accordingly, the Legislature has empowered the court, in making a probation determination, to impose any "reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer. . . . " [Penal Code Section 1203.1(j).] Although a trial court's discretion is broad, California courts have held that a condition of probation must serve a purpose specified in Penal Code section 1203.1. [Carbajal, supra, 10 Cal.4th at p. 1121; People v. Richards (1976) 17 Cal.3d 614.] "A condition of probation will not be held invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . . ' Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if the conduct is reasonably related to the crime of which the defendant was convicted or to future criminality." [People v. Lent (1975) 15 Cal.3d 481, 486.] This bill creates a new misdemeanor which punishes persons who own, possess, maintain, have custody of, reside with, or care for any animal within a specified period. Essentially, this bill also allows a judge to prohibit animal ownership for up to five years upon a misdemeanor conviction of animal abuse and up to 10 years for a felony conviction of animal abuse. As stated above, judges possess broad sentencing discretion. Thus, a judge may place restrictions upon animal ownership since it is related to the underlying offense, i.e. animal abuse. In addition, the author of this bill asserts that AB 243 Page 7 there is a high recidivism rate among those convicted of animal abuse; thus, it may be argued that the condition restricting ownership post probation is reasonably related to future criminality. 4)Argument in Support : According to the American Society for the Prevention of Cruelty to Animals , "Studies have documented a link between animal abuse and domestic violence with perpetrators often abusing animals in order to intimidate, harass, or silence their human victims. In addition, animal 'hoarders' have been known to collect too many animals than they can adequately care for, causing the animals to suffer and live in squalid conditions. The recidivism rate for hoarders is considered to be 100%. "Persons convicted of intentional abuse and individuals convicted of animal neglect should not be allowed to own animals the moment they are released from prison. AB 243 will go far in reducing repeated acts of cruelty against animals." 5)Argument in Opposition : According to the Animal Council , "This bill would amend Penal Code Section 597.1, amended to be a mandate rather than a county elected option with the 1997 Hayden bill, SB 1785, inexplicably. This bill would delete a paragraph covering post-adjudication provisions protecting individuals to mandate a number of post-conviction (designated offense) restrictions on owning or caring for animals. This would remove all judicial discretion as to these post-conviction issues, and as introduced, deletes the provision for return or disposition of animals following acquittal or non-conviction. For these reasons, we oppose AB 243 as excessively punitive and removing judicial discretion to protect the rights of individuals." 6)Related Legislation : a) AB 241 (Nava) makes it a misdemeanor for an individual or business that buys or sells dogs or cats to have more than a combined total of 50 dogs and cats with intact sexual organs, as specified. AB 241 is scheduled to be heard by this Committee today. b) AB 242 (Nava) makes it a felony punishable by 16 months, 2 or 3 years in the state prison for any person convicted of being knowingly present as a spectator at any place, AB 243 Page 8 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. AB 242 is scheduled to be heard by this Committee today. 7)Prior Legislation : a) SB 353 (Kuehl), Chapter 205, Statutes of 2008, allows a court to protect an animal in a domestic violence protective order. b) SB 1991 (O'Connell), Chapter 450, Statutes of 1999, requires counseling as a condition of probation for any person convicted of killing, maiming or abusing an animal. REGISTERED SUPPORT / OPPOSITION : Support American Society for the Prevention of Cruelty to Animals Council of the City of Fresno Los Angeles County District Attorney's Office Paw PAC One private individual Opposition Animal Council California Federation of Dog Clubs United States Society for the Prevention of Cruelty to Others We the People for Pets One private individual Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916) 319-3744