BILL NUMBER: AB 708 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 17, 2009
AMENDED IN ASSEMBLY APRIL 20, 2009
INTRODUCED BY Assembly Member Huffman
( Coauthors: Assembly Members
Tom Berryhill, Fletcher, and Krekorian
)
(Coauthor: Senator Strickland)
FEBRUARY 26, 2009
An act to amend Section 12012 Sections
12012 and 12157 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 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
these provisions be allocated for the support of
the Special Operations Unit of the Department of Fish and Game
, and used for law enforcement purposes and
50% of the revenue from a fine or forfeiture be paid to the office of
the Attorney General, city attorney, city prosecutor, or district
attorney that brought the action .
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 require that 50% of the
revenue from a fine or forfeiture collected pursuant to these
provisions be paid to the office of the Attorney General, city
attorney, city prosecutor, or district attorney that brought the
action.
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 would authorize the forfeiture
of any device or apparatus, including a vessel, vehicle,
or hunting or fishing gear, used in commission of specified offenses.
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: 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
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 approximately 6,500 hunting violations and
8,001 approximately 8,000 fishing
violations in 2003 to 17,840 approximately
17,800 hunting violations and 15,892
approximately 15,900 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 12012 of the Fish and Game Code is amended to
read:
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.
(c) (1) Whenever a second or subsequent violation of subdivision
(a) also involves a violation of Section 8685.5, 8685.6, 8685.7, or
8688 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)
also involves a violation of Section 4758 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.
(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.
(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) (1) 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.
(2) Moneys equivalent to 50 percent of the revenue from any fine
or forfeiture collected pursuant to this section shall be paid to the
Attorney General, city attorney, city prosecutor, or district
attorney, whichever office brought the action.
SEC. 3. Section 12013 of the Fish and Game Code is repealed.
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) Nothing in this section prohibits a person from giving,
receiving, or possessing the legal possession limit of lawfully taken
fish, reptiles, birds, amphibians, or mammals.
(e) Nothing in this section prohibits a person from giving,
receiving, or possessing, at the personal abode of the donor or
donee, lawfully taken migratory game birds that are not required to
be tagged pursuant to the federal Migratory Bird Treaty Act (16
U.S.C. Sec.703 et seq.) or regulations adopted pursuant to that act.
(d)
(f) This section does not supersede Section 12005,
12006.6, or 12009.
(g) Moneys equivalent to 50 percent of the revenue from any fine
or forfeiture collected pursuant to this section shall be paid to the
office of the Attorney General, city attorney, city prosecutor, or
district attorney, whichever office brought the action.
SEC. 5. Section 12154 of the Fish and Game Code is repealed.
SEC. 6. Section 12154 is added to the Fish and Game Code, to read:
12154. (a) 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
subdivision .
(b) Pursuant to subdivision (c) of Section 12157, a judge may
order the seizure or forfeiture of any device or apparatus, including
a vessel, vehicle, or hunting or fishing gear, that is used in
committing an offense punishable under Section 12012 or 12013.
SEC. 7. Section 12157 of the Fish and
Game Code is amended to read:
12157. (a) Except as provided in subdivision (b), the judge
before whom any person is tried for a violation of any provision of
this code, or regulation adopted pursuant thereto, may, upon the
conviction of the person tried, order the forfeiture of any device or
apparatus that is designed to be, or is capable of being, used to
take birds, mammals, fish, reptiles, or amphibia and that was used in
committing the offense charged.
(b) The judge shall, if the offense is punishable under Section
12008 of this code or under subdivision (c) of Section 597 of the
Penal Code, order the forfeiture of any device or apparatus that is
used in committing the offense, including, but not limited to, any
vehicle that is used or intended for use in delivering, importing, or
exporting any unlawfully taken, imported, or purchased species.
(c) (1) The judge may, for conviction of a violation of
either any of the following offenses, order
forfeiture of any device or apparatus that is used in committing the
offense, including, but not limited to, any vehicle used or intended
for use in committing the offense:
(A) Section 2000 relating to deer, elk, antelope, feral pigs,
European wild boars, black bears, and brown or cinnamon bears.
(B) Any offense that involves the sale, purchase, or possession of
abalone for commercial purposes.
(C) Any offense that involves the sale, purchase, or possession of
sturgeon or lobster, pursuant to Section 7370 or 8254.
(D) Any offense that involves a violation of Section 12012 or
12013.
(2) In considering an order of forfeiture under this subdivision,
the court shall take into consideration the nature, circumstances,
extent, and gravity of the prohibited act committed, the degree of
culpability of the violator, the property proposed for forfeiture,
and other criminal or civil penalties imposed on the violator under
other provisions of law for that offense. The court shall impose
lesser forfeiture penalties under this subdivision for those acts
that have little significant effect upon natural resources or the
property of another and greater forfeiture penalties for those acts
that may cause serious injury to natural resources or the property of
another, as determined by the court. In determining whether or not
to order forfeiture of a vehicle, the court shall, in addition to any
other relevant factor, consider whether the defendant is the owner
of the vehicle and whether the owner of the vehicle had knowledge of
the violation.
(3) It is the intent of the Legislature that forfeiture not be
ordered pursuant to this subdivision for minor or inadvertent
violations, as determined by the court.
(d) A judge shall not order the forfeiture of a vehicle under this
section if there is a community property interest in the vehicle
that is owned by a person other than the defendant and the vehicle is
the only vehicle available to the defendant's immediate family that
may be operated on the highway with a class A, class B, or class C
driver's license.
(e) Any device or apparatus ordered forfeited shall be sold, used,
or destroyed by the department.
(f) (1) The proceeds from all sales under this section, after
payment of any valid liens on the forfeited property, shall be paid
into the Fish and Game Preservation Fund.
(2) A lien in which the lienholder is a conspirator is not a valid
lien for purposes of this subdivision.
(g) The provisions in this section authorizing or requiring a
judge to order the forfeiture of a device or apparatus also apply to
the judge, referee, or juvenile hearing officer in a juvenile court
action brought under Section 258 of the Welfare and Institutions
Code.
(h) For purposes of this section, a plea of nolo contendere or no
contest, or forfeiture of bail, constitutes a conviction.
(i) Neither the disposition of the criminal action other than by
conviction nor the discretionary refusal of the judge to order
forfeiture upon conviction impairs the right of the department to
commence proceedings to order the forfeiture of fish nets or traps
pursuant to Section 8630.
SEC. 7. SEC. 8. 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.