BILL ANALYSIS                                                                                                                                                                                                    







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

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          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
           




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          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  




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          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  




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          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  




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          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  




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          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  




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          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.




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           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).)



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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  

              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).



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              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  




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              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  




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          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  




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              child abuse, with animals often used as a tool to  
              intimidate, silence, or extract compliance from the  
              abuser's victims.









































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          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:




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               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.
           


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