BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair A 2009-2010 Regular Session B 2 4 3 AB 243 (Nava) As Amended June 22, 2009 Hearing date: July 14, 2009 Penal Code MK:br ANIMAL ABUSE: PENALTIES HISTORY Source: Los Angeles District Attorney's Office Prior Legislation: None Support: The Humane Society of the United States; City of West Hollywood; American Society for the Prevention of Cruelty to Animals; California Animal Association; The Paw Project; Paw PAC; California Federation for Animal Legislation; City of Long Beach; a number of individuals Opposition:California Grain and Feed Association; Pacific Egg and Poultry Association; California Farm Bureau Federation; Western United Dairymen; California Horse Council; California Thoroughbred Breeders Association; Professional Rodeo Cowboys Association; California Cattlemen's Association; The Animal Council Assembly Floor Vote: Ayes 65- Noes 12 KEY ISSUE (More) AB 243 (Nava) PageB SHOULD THE LAW PROVIDE THAT, WHEN A PERSON IS CONVICTED OF SPECIFIED ANIMAL ABUSE PROVISIONS, AS PART OF THE SENTENCE THE COURT ORDER THAT THE PERSON NOT OWN, POSSESS, MAINTAIN OR CARE FOR ANY ANIMAL FOR A SPECIFIED PERIOD OF TIME? PURPOSE The purpose of this bill is to prohibit a person who has been convicted of specified animal abuse crimes from owning or caring for an animal for a specified period of time. Existing law 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 597 (a).) Existing law 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 597 (b).) Existing law 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 therefore 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 (More) AB 243 (Nava) PageC 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 597a.) Existing law 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 or 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 $1000; or both. (Penal Code 597b (a).) Existing law 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 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; by a fine not to exceed $5000; or by both. (Penal Code 597b (b).) Existing law 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 597h.) Existing law 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 to exceed six months; by a fine not to exceed $1000; or by both. (Penal Code 597j.) Existing law states that every person who willfully abandons any animal is guilty of a misdemeanor. (Penal Code 597s.) Existing law provides that any person who does any of the (More) AB 243 (Nava) PageD 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: 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 the amusement or gain, causes any dog to fight with another dog, or causes any dogs to injure each other. 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 597.5.) Existing law 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 597.1 (a).) Existing law provides that any peace officer, humane society officer, or animal control officer shall take possession of the stray or abandoned animal and shall provide care and treatment for the animal until the animal is deemed to be in suitable condition to be returned to the owner. When the officer has reasonable grounds to believe that very prompt action is required to protect the health and safety of the animal or others the officer shall immediately seize the animal. The cost of caring for and treating the animal seized under this subdivision shall constitute a lien on the animal and the animal shall not be returned to the owner until the charges are paid. (Penal Code 597.1 (a).) Existing law sets forth the procedure for seizure and impoundment of an animal. (Penal Code 597.1 (f)-(j).) This bill provides that if the owner has satisfied the lien for (More) AB 243 (Nava) PageE caring for a seized animal prior to the final disposition of any criminal charges, the seizing agency or prosecuting attorney may file a petition in the criminal action requesting that the court order forfeiting the animal to the county or seizing agency prior to final disposition of the criminal charge. This bill provides that the court shall set a hearing on the forfeiture provision within 14 days of the filing of the petition. This bill provides the petitioner shall have the burden of establishing probable cause to believe that even in the event of acquittal, the owner cannot and will not provide the necessary care or that the owner will legally be permitted to retain any of the animals in question. If the court finds that probable cause exists, the court shall order immediate forfeiture of the animal to the petitioner. Existing law 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 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 597.1 (k).) This bill provides that if probation is granted, the court shall 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. This bill provides that regardless of whether probation is granted, the court shall require the convicted person to (More) AB 243 (Nava) PageF immediately deliver all animals in his or her 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. This bill provides that in the event of the acquittal or final discharge without conviction of the arrested person, if any of the animals are still impounded because the animal or animals have not previously been deemed abandoned or the lien has been satisfied and the court has not previously ordered that any of the animals be forfeited, the court shall, on demand, direct the release of seized or impounded animals upon a showing of the following: Proof of ownership. Proof that all charges for the cost of seizure and care of the animals for the entire duration of the matter has been paid. Proof that the animals are physically fit and that the owner has demonstrated to the seizing agency or the court that the owner can and will provide the necessary care. Proof that the owner can legally retain and possess all animals in question. This bill provides that upon a conviction for a misdemeanor violation of subdivision (a) or (b) of Section 597, or of Section 597a, 597b, 597h, 597j, 597s, or 597.1, the court shall, in addition to any other sentence or penalty imposed, enter an order enjoining the person from owning, possessing, maintaining, having custody of, residing with, or caring for any animal for a period of not less than five years. This bill provides that upon a conviction for a felony violation of subdivision (a) or (b) of Section 597, or of Section 597b or 597.5, the court shall, in addition to any other sentence or penalty imposed, enter an order enjoining the person from owning, possessing, maintaining, having custody of, residing (More) AB 243 (Nava) PageG with, or caring for any animal for a period of not less than 10 years. This bill provides that any person who is convicted of violating an order issued under this section is guilty of a public offense, which shall be punished by imprisonment in a county jail not exceeding one year, by a fine not exceeding $1000, or by both that imprisonment and fine. This bill provides that the court may, in the interest of justice, exempt a defendant from the provisions of this section if the defendant files a petition with the court requesting a hearing in which the defendant shall have the burden of establishing that the imposition of the provisions of this section would result in severe or undue economic hardship to the defendant's livelihood and that the defendant has the ability to properly care for all animals in his or her possession. This bill provides that the petitioner shall serve a true copy of the petition upon the court and the prosecuting attorney 10 calendar days prior to the requested hearing. Upon petition from the defendant, the court shall set a hearing on the petition. The hearing shall be conducted within 30 days after the filing of the petition. This bill provides that the defendant may petition the court to reduce the duration of the mandatory ownership prohibition. The petitioner shall serve a true copy of the petition upon the court and the prosecuting attorney 10 calendar days prior to the requested hearing. Upon a petition from the defendant, the court shall set a hearing on the petition. The hearing shall be conducted within 30 days after the filing of the petition. At this hearing, the petitioner shall have the burden of establishing probable cause to believe all of the following: He or she does not present a danger to animals. He or she has the ability to properly care for all animals in his or her possession. He or she has successfully completed all classes or counseling ordered by the court. (More) AB 243 (Nava) PageH This bill provides that if the petitioner has met his or her burden, the court may reduce the mandatory ownership prohibition and may order that the defendant comply with reasonable and unannounced inspections by animal control agencies or law enforcement. 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 243 (Nava) PageI 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 243 (Nava) PageJ 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 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 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 ---------------------- <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 243 (Nava) PageK 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 dogfighting 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 (More) AB 243 (Nava) PageL 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." 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. Prohibition from Possession of Animal after Abuse Conviction (More) AB 243 (Nava) PageM This bill provides that if a person is convicted of specified misdemeanor animal abuse statutes, in addition to any other sentence the court shall enter an order enjoining the person from owning, possessing, maintaining, having custody of, residing with, or caring for any animal for a period of not less than five years. If the person is convicted of specified felony animal abuse statutes then the court shall make the same order for not less than 10 years. A violation of the order would be a misdemeanor. The court may find in the interest of justice, that the order would cause economic hardship on the person and that the person has the ability to properly care for all animals in his or her possession. According to amendments to be offered by the author, the court shall grant the exemption unless the prosecuting attorney shows by preponderance that either there is not economic hardship or the person cannot care for the animals they have. (See Comment #3 below for amendments.) Supporters of this bill argue a link between animal abusers and domestic violence, elder abuse and child abuse. They further argue that people who have demonstrated that they cannot care for animals should not be permitted to keep animals. Specifically the sponsor, the Los Angeles District Attorney's Office, states: 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." Additionally, there is an uncontroversial link between animal abuse and domestic violence, elder abuse and (More) AB 243 (Nava) PageN child abuse, with animals often used as a tool to intimidate, silence, or extract compliance from the abuser's victims. (More) 3. Amendments to be Offered by the Author in Committee The recent amendments that are in print and the following amendments which will be offered by the author in Committee are intended to address some of the concerns raised by the opposition regarding a person who makes his or her living raising livestock or other animals who obtains a conviction for animal abuse under California's complex laws potentially losing his or her livelihood. The amendments are: On Page 11, line 34 after the word (a) insert Except as provided in subdivision (d) or (e) On Page 11, line 34 delete the word "Upon" On Page 12, line 1 after the word (b) insert Except as provided in subdivision (d) or (e) On Page 12, line 1 delete the word "Upon" On Page 12, line 13 after the word "the" insert injunction required under subdivision (a) or (b) On Page 12, line 13 delete "provisions of this section" On Page 12, lines 14-15 delete "requesting a hearing in which the defendant shall have the burden of" On Page 12, line 16 delete the word "severe" and insert substantial On Page 12, line 18 after the word "animals" insert ,as defined in Food and Agricultural Code Section 14205, On Page 12, line 23 after the word "petition." insert: (More) AB 243 (Nava) PageP The court shall grant the petition for exemption from subdivision (a) or subdivision (b) unless the prosecuting attorney shows by a preponderance of the evidence that either of the criteria for exemption under subdivision (d) are untrue. ***************