BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 243
                                                                  Page  1

          CONCURRENCE IN SENATE AMENDMENTS
          AB 243 (Nava)
          As Amended  August 27, 2009
          Majority vote
           
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          |ASSEMBLY:  |65-12|(June 2, 2009)  |SENATE: |28-4 |(September 3,  |
          |           |     |                |        |     |2009)          |
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           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  








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            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;








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             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.








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          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  








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            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.' "








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          "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 

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