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  








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            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
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          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
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           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
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            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.' "








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           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  








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            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
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               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