BILL NUMBER: AB 708 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 20, 2009
INTRODUCED BY Assembly Member Huffman
( Coauthor: Senator
Strickland )
FEBRUARY 26, 2009
An act to add Section 12007.12 to amend
Section 12012 of, and to repeal and add Sections 12013 and 12154 of,
the Fish and Game Code, relating to fish and wildlife.
LEGISLATIVE COUNSEL'S DIGEST
AB 708, as amended, Huffman. Fish and wildlife: poaching.
Existing law regulates the taking or possession of birds, mammals,
fish, amphibians, and reptiles. Except as expressly provided
otherwise in the Fish and Game Code, any violation of that code, or
of any rule, regulation, or order made or adopted under that code, is
a misdemeanor. Existing law specifically imposes a fine of up
to $30,000 or up to one year of imprisonment, or both, for the
knowing unlawful taking of listed animals for commercial purposes,
for the knowing unlawful possession for commercial purposes of any
part of a mountain lion, bear, wild pig, bighorn sheep, elk,
antelope, or deer, a pelt of a furbearing mammal, a live reptile or
amphibian, any fully protected, threatened, or endangered species, or
any quantity of fish or shellfish in excess of the quantity
permitted by the code, and for the knowing unlawful sale for
commercial purposes, or the unlawful possession with the
intent to sell, of any part of, or product made from, any wildlife.
Existing law, except as specified, also prohibits any person
convicted of a violation punishable under those unlawful taking and
possession and sale provisions from thereafter taking wildlife in
this state for a period of not less than one year from the date of
conviction, and provides for the revocation of related entitlements.
Existing law prohibits a person, upon the 3rd conviction of a
specified violation relating to the taking or possession of fish,
reptiles, or amphibia, or parts thereof, in any 5-year period, and
upon any subsequent conviction during a 5-year period, from taking
any fish, reptiles, or amphibia in the state for 3 years from the
date of the last conviction, and requires the Fish and
Game Commission to revoke the sport fishing license of such a person
for the period of the prohibition.
This bill would establish specific minimum and
unspecified maximum fines for certain violations of existing law
relating to unlawful taking and possession, where the Department of
Fish and Game determines the value of the in fish or wildlife
unlawfully taken or possessed is in excess of $400. The bill would
make legislative findings and declarations relating to poaching
delete those unlawful taking and possession and sale
provisions and those specific taking and entitlement prohibitions.
The bill would, instead, except as specified, provide that any person
who illegally takes, possesses, imports, exports, sells, purchases,
barters, trades, or exchanges any amphibian, bird, fish, mammal, or
reptile, or part thereof, for profit or personal gain, is guilty of a
misdemeanor punishable by a fine of not less than $5,000, nor more
than $40,000, or imprisonment in the county jail for not more than
one year, or by both that fine and imprisonment. The bill would
increase the fine for a 2nd or subsequent violation. The bill would
require that moneys equivalent to 50% of the revenue deposited in the
Fish and Game Preservation Fund from fines and forfeitures collected
pursuant to those provisions be allocated for the support of the
Special Operations Unit of the Department of Fish and Game, and used
for law enforcement purposes .
The bill, except as specified, would provide that any person who
illegally takes or possesses in the field more than 3 times the daily
bag limit, or who illegally possesses more than 3 times the legal
possession limit, of fish, reptiles, birds, amphibians, or mammals is
guilty of a misdemeanor subject to a fine of not less than $5,000
nor more than $40,000, or imprisonment in the county jail for not
more than one year, or by both that fine and imprisonment. The bill
would increase the fine for a 2nd or subsequent violation. The bill,
except as specified, would provide that any person who maliciously or
intentionally maims, mutilates, or tortures any fish, reptile, bird,
amphibian, or mammal provided for in the code is guilty of a crime
punishable as prescribed.
The bill would authorize the department, upon a conviction of
certain violations, to suspend or permanently revoke a person's
hunting or sport fishing license or permit privileges. The bill would
authorize any person whose privileges are suspended or revoked to
appeal the suspension or revocation to the commission, and would
require the commission to initiate the appeal process within 12
months of the violator's appeal request. The bill would authorize the
department to adopt regulations to implement those suspension and
revocation provisions.
The bill, by creating new crimes, would impose a state-mandated
local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) The illegal poaching of fish and wildlife, including the
wanton egregious killing of migratory
birds, deer, bear, fish, and abalone, poses a serious threat to
California's wildlife species and biodiversity.
(b) Arrests and reported incidents of poaching have increased
dramatically in California in recent years. Between 2003 and 2007 the
number of violations more than doubled, increasing from 6,538
hunting violations and 8,001 fishing violations in 2003 to 17,840
hunting violations and 15,892 fishing violations in 2007. Illegal
poaching of waterfowl in particular has reached the highest level in
decades.
(c) Current penalties and enforcement levels have proved
insufficient to serve as an effective deterrent for illegal poachers.
Financial resources dedicated to enforcement of hunting and fishing
laws have also declined significantly at the same time that poaching
and profits from poaching have soared.
(d) California in 2008 had less than 300 fish and game wardens on
active duty to patrol the entire state, which includes thousands of
miles of coastline and hundreds of thousands of acres of public
lands.
(e) The economic impact of illegal poaching diminishes the
significant public investment the state and law abiding fishers and
hunters have made in restoring habitat for fish and wildlife and
protecting biodiversity.
(f) California's native fish and wildlife are held in trust for
the common good of all the people of California.
(g) It is therefore the intent of the Legislature that existing
laws prohibiting illegal poaching be enforced, that sufficient
resources be dedicated for effective enforcement of those laws, and
that the penalties for illegal poaching be enhanced, including, in
particular, the penalties for egregious poaching violations
exhibiting a wanton disregard for the laws protecting native fish and
wildlife and the public trust purposes of those resources.
SEC. 2. Section 12007.12 is added to the Fish
and Game Code, to read:
12007.12. (a) In addition to any other fine, forfeiture,
assessment, or penalty imposed pursuant to law, a violation of any of
the following sections shall be penalized according to this
subdivision if the value of the fish or wildlife unlawfully taken or
possessed is in excess of four hundred dollars ($400):
(1) For a violation of Section 2000, a fine of not less than five
hundred dollars ($500) or more than ____.
(2) For a violation of Section 2002, a fine of not less than five
hundred dollars ($500) or more than ____.
(3) For a violation of Section 3007, a fine of not less than one
thousand dollars ($1,000) or more than ____.
(4) For a violation of Section 4330, a fine of not less than five
hundred dollars ($500) or more than ____.
(5) For a violation of Section 4750, a fine of not less than one
thousand dollars ($1000) or more than ____.
(b) The valuation shall be determined by the department pursuant
to regulation. The taking or possession of each individual animal is
a separate violation for the purposes of this section.
SEC. 2. Section 12012 of the Fish and
Game Code is amended to read:
12012. (a) Notwithstanding any other provision of this code, the
knowing unlawful taking for commercial purposes of a mammal, bird,
amphibian, reptile, fish, or any other species in violation of this
code is an offense punishable by imprisonment in the county jail for
not more than one year, by a fine of not more than thirty thousand
dollars ($30,000), or by both that imprisonment and fine. This
subdivision does not apply to a person issued a commercial fishing
license pursuant to Section 7852 who takes finfish in an amount that
is less than 1,000 pounds more than the amount of fish authorized by
the applicable statute or regulation.
(b) Notwithstanding any other provision of this code, the knowing
unlawful possession for commercial purposes of any part of a mountain
lion, bear, wild pig, bighorn sheep, elk, antelope, or deer, a pelt
of a furbearing mammal, a live reptile or amphibian, any fully
protected, threatened, or endangered species, or any quantity of fish
or shellfish in excess of the quantity permitted by other provisions
of this code is an offense punishable by imprisonment in the county
jail for not more than one year, by a fine of not more than thirty
thousand dollars ($30,000), or by both that imprisonment and fine.
This subdivision does not apply to a person issued a commercial
fishing license pursuant to Section 7852 or a commercial fish
business license pursuant to Article 7 (commencing with Section 8030)
of Chapter 1 of Part 3 of Division 6 who possesses finfish in an
amount that is less than 1,000 pounds more than the amount of finfish
authorized by the applicable statute or regulation.
(c) Notwithstanding any other provision of this code, the knowing
unlawful sale in violation of this code for commercial purposes, or
the unlawful possession with the intent to sell in violation of this
code, of any part of, or product made from, any wildlife is an
offense punishable by imprisonment in the county jail for not more
than one year, by a fine of not more than thirty thousand dollars
($30,000), or by both that imprisonment and fine. This subdivision
applies only to a person who knowingly acquires for commercial
purposes any part of, or product made from, any unlawfully taken
wildlife.
12012. (a) Notwithstanding any other provision of
this code, except as provided in subdivision (e) or (f), any person
who illegally takes, possesses, imports, exports, sells, purchases,
barters, trades, or exchanges any amphibian, bird, fish, mammal, or
reptile, or part thereof, for profit or personal gain is guilty of a
misdemeanor punishable by a fine of not less than five thousand
dollars ($5,000), nor more than forty thousand dollars ($40,000), or
imprisonment in the county jail for not more than one year, or by
both that fine and imprisonment.
(b) If a person is convicted of a second or subsequent violation
of subdivision (a), that person shall be punished by a fine of not
less than ten thousand dollars ($10,000), nor more than fifty
thousand dollars ($50,000), or imprisonment in the county jail for
not more than one year, or by both that fine and imprisonment.
(d)
(c) (1) Whenever a second or subsequent violation of
subdivision (a) , (b), or (c) also involves a
violation of Section 8685.5, 8685.6, 8685.7, or 8688 which
that is punishable by subdivision (b) of Section
12004, the offense shall be punishable by a fine of not more than
thirty thousand dollars ($30,000), or by imprisonment pursuant to
subdivision (b) of Section 12004, or by both that fine and
imprisonment.
(2) Whenever a second or subsequent violation of subdivision (a)
, (b), or (c) also involves a violation of Section
4758 which that is punishable pursuant
to subdivision (a) of Section 12005, the offense shall be punishable
by a fine of not more than thirty thousand dollars ($30,000), or by
imprisonment pursuant to subdivision (a) of Section 12005, or by both
that fine and imprisonment.
(e)
(d) Notwithstanding Section 802 of the Penal Code,
prosecution of an offense punishable under this section shall be
commenced within three years after commission of the offense.
(f) As used in this section:
(1) "Commercial purposes" means import, export, sale, purchase,
barter, trade, exchange, or possession for profit or personal gain.
(2) "Fish" means fish as defined by Section 45.
(3) "Wildlife" means wildlife as defined by Section 711.2.
(e) This section does not apply to fish taken pursuant to a
commercial fishing license issued pursuant to Section 7852, or fish
sold pursuant to a commercial fish business license issued in
accordance with Article 7 (commencing with Section 8030) of Chapter 1
of Part 3 of Division 6.
(f) This section does not supersede Section 12005 or 12009.
(g) Moneys equivalent to 50 percent of the revenue deposited in
the Fish and Game Preservation Fund from fines and forfeitures
collected pursuant to this section shall be allocated for the support
of the Special Operations Unit of the department, and used for law
enforcement purposes.
SEC. 3. Section 12013 of the Fish and
Game Code is repealed.
12013. (a) In addition to any other penalty prescribed by law,
any person convicted of a violation punishable under subdivision (a)
of Section 12012 relating to wildlife, except fish, is prohibited
from thereafter taking wildlife, except fish, in this state for a
period of not less than one year from the date of conviction. In
determining the length of the prohibition imposed pursuant to this
subdivision, the court shall take into consideration the gravity of
the offense for which the person was convicted, including, but not
limited to, whether the species was illegally taken for commercial
purposes, the magnitude of the offense, damage to the species as a
resource in the geographic area where taken, previous convictions for
violations of this code, and the motivation of the person convicted.
Any license, permit, tag, stamp, or other entitlement to take or
possess wildlife, except fish, for any purpose other than for
commercial purposes that has previously been issued to that person
shall be immediately revoked by the court and that person, during the
period of the prohibition, shall not apply for a license, permit,
tag, stamp, or other entitlement to take or possess wildlife, except
fish, for any purpose other than for commercial purposes.
(b) In addition to any other penalty prescribed by law, any person
convicted of a violation punishable under subdivision (a) of Section
12012 relating to fish is prohibited from thereafter taking or
possessing fish in this state for a period of not less than one year
from the date of conviction. In determining the length of the
prohibition imposed pursuant to this subdivision, the court shall
take into consideration the gravity of the offense for which the
person was convicted, including, but not limited to, such factors as
whether the species was illegally taken for commercial purposes, the
magnitude of the offense, damage to the species as a resource in the
geographic area where taken, previous convictions for violations of
this code, and the motivation of the person convicted. Any license,
permit, tag, stamp, or other entitlement to take or possess fish for
any purpose other than for commercial purposes that has previously
been issued to that person shall be immediately revoked and that
person, during the period of the prohibition, shall not apply for a
license, permit, tag, stamp, or other entitlement to take or possess
fish for any purpose other than for commercial purposes.
(c) As used in this section, "commercial purposes" means for
profit or personal gain, "fish" means fish as defined by Section 45,
and "wildlife" means wildlife as defined by Section 711.2.
(d) This section does not apply to any person who is licensed to
take any fish or wildlife for commercial purposes and does not
supersede or otherwise affect any other provision of this code or
regulations adopted pursuant to this code relating to issuing,
suspending, or revoking licenses or other entitlements to take,
possess, buy, or sell wildlife or fish for commercial purposes.
SEC. 4. Section 12013 is added to the
Fish and Game Code , to read:
12013. (a) Notwithstanding any other provision of this code,
except as provided in subdivision (d), any person who illegally takes
or possesses in the field more than three times the daily bag limit,
or who illegally possesses more than three times the legal
possession limit, of fish, reptiles, birds, amphibians, or mammals is
guilty of a misdemeanor and shall be subject to a fine of not less
than five thousand dollars ($5,000), nor more than forty thousand
dollars ($40,000), or imprisonment in the county jail for not more
than one year, or by both that fine and imprisonment.
(b) If a person is convicted of a second or subsequent violation
of subdivision (a), that person shall be punished by a fine of not
less than ten thousand dollars ($10,000), nor more than fifty
thousand dollars ($50,000), or imprisonment in the county jail for
not more than one year, or by both that fine and imprisonment.
(c) Notwithstanding any other provision of this code, except as
provided in subdivision (d), any person who maliciously or
intentionally maims, mutilates, or tortures any fish, reptile, bird,
amphibian, or mammal provided for in this code is guilty of a crime
punishable in accordance with subdivision (a). Nothing in this
subdivision affects any legal hunting, fishing, or trapping activity,
including, but not limited to, efforts to dispatch a wounded mammal,
bird, or fish taken legally.
(d) This section does not supersede Section 12005, 12006.6, or
12009.
SEC. 5. Section 12154 of the Fish and
Game Code is repealed.
12154. Upon the third conviction of any person of a violation of
any provision of this code or regulation adopted pursuant thereto
relating to the taking or possession of fish, reptiles, or amphibia,
or parts thereof, in any five-year period, and upon any conviction
subsequent to the three convictions during a five-year period, that
person shall be prohibited from taking any fish, reptiles, or
amphibia in the state for three years from the date of the last
conviction. The commission shall revoke the sport fishing license of
the person who is prohibited from taking fish, reptiles, or amphibia
in this state, if he or she has one, for the period of prohibition.
It shall be unlawful for any person to obtain, or attempt to
obtain, a sport fishing license during a period of prohibition.
SEC. 6. Section 12154 is added to the
Fish and Game Code , to read:
12154. Upon a conviction of a violation of Section 12012 or
12013, the department may suspend or permanently revoke a person's
hunting or sport fishing license or permit privileges. Any person
whose privileges are suspended or revoked pursuant to this section
may appeal the suspension or revocation to the commission. The
commission shall initiate the appeal process within 12 months of the
violator's appeal request. The department may adopt regulations to
implement this section.
SEC. 7. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.