BILL ANALYSIS AB 243 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 243 (Nava) As Amended August 27, 2009 Majority vote ----------------------------------------------------------------- |ASSEMBLY: |65-12|(June 2, 2009) |SENATE: |28-4 |(September 3, | | | | | | |2009) | ----------------------------------------------------------------- Original Committee Reference: PUB. S. SUMMARY : Provides that any person who owns, possesses, maintains, has custody of, resides with, or cares for any animal after being enjoined from doing so, 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 $1,000, or, by both that imprisonment and fine. The Senate amendments : 1)Add animals properly seized pursuant to a search warrant to constitute a lien on the animal and the animal shall not be returned to its owner until charges are paid for the cost of caring for and treating the animal. 2)Hold the owner or keeper personally liable to the seizing agency for the cost of the seizure and care of any animal seized pursuant to a search warrant. 3)Prohibit the return of any animal seized pursuant to a search warrant to be returned to his or her owner until a determination by the seizing agency or hearing officer is made that the animal is physically fit or the owner can demonstrate that he or she will provide the necessary care. 4)State that in the event that the owner has satisfied the lien provided for in this section for the cost of caring for or treating an animal, prior to final disposition of any criminal charges, the seizing agency or prosecuting attorney may file a petition in the criminal action requesting that the court issue an order forfeiting the animal to the county or seizing AB 243 Page 2 agency prior to final disposition of the criminal charge. The petitioner shall serve a true copy of the petition upon the defendant and the prosecuting attorney. a) Upon receipt of a petition, the court shall set a hearing on the petition. The hearing shall be conducted within 14 days after the filing of the petition, or as soon as practicable. b) 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 not legally be permitted to retain any of the animals in question. If the court finds probable cause exists, the court shall order immediate forfeiture of the animal to the petitioner. 5)Necessitate if probation is granted, the court shall 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. Regardless of whether probation is granted, the court shall 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. 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 all of the following: a) Proof of ownership; b) Proof that all charges for the cost of seizure and care of the animals for the entire duration of the matter have been paid; AB 243 Page 3 c) 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; and, d) Proof that the owner can legally retain and possess all animals in question. 6)Require upon the conviction for a misdemeanor violation of Penal Code Section 597(a) or (b), 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. 7)Require upon a conviction for a felony violation of Penal Code Section 597(a) or (b), 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 with, or caring for any animal for a period of not less than 10 years. 8)State that any person who is convicted of possessing, owning, maintaining, having custody of, residing with, or caring for any animal 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 $1,000, or by both that imprisonment and fine. 9)Allow a court, 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. AB 243 Page 4 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. 10)Permit a defendant to 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: a) He or she does not present a danger to animals; b) He or she has the ability to properly care for all animals in his or her possession; c) He or she has successfully completed all classes or counseling ordered by the court; and, d) 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. 11)Make other technical, non-substantive changes. AS PASSED BY THE ASSEMBLY, this bill: 1)Provided 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 AB 243 Page 5 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)Provided 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. 3)Allowed a court in the interest of justice, to 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: a) imposition of the provisions of the section would result in severe or undue economic hardship to the defendant's livelihood; and, b) the defendant has the ability to properly care for all animals in his or her possession. 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. FISCAL EFFECT : According to the Assembly Appropriations Committee, unknown, likely minor, nonreimbursable costs for local law enforcement and incarceration, offset to a degree by increased fine revenue. For a point of reference, 35 persons were committed to state prison over the past two years for felony animal cruelty. COMMENTS : 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.' " AB 243 Page 6 "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." Please see the policy committee for a full discussion of this bill. Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916) 319-3744 FN: 0002649