BILL ANALYSIS AB 1675 Page 1 Date of Hearing: March 16, 2010 Counsel: Meghan Masera ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair AB 1675 (Hagman) - As Amended: March 10, 2010 SUMMARY : Creates a misdemeanor for any person, other than a zoo employee, to trespass into an animal enclosure at a zoo, defined to include an aquarium or tank for aquatic animals. Specifically, this bill : 1)Makes it a misdemeanor punishable by up to six-months in the county jail, by a fine not exceed $1,000, or both, for any person other than a zoo employee to enter an animal enclosure at a zoo, where signs prohibiting entrance into the zoo's animal enclosures have been posted, without the consent of the zoo's governing authority or representative. 2)Creates an exemption for a zoo employee acting within the course of his or her employment and a public officer acting within the course and scope of his or her employment in performance of a duty imposed by law. 3)Defines "zoo" as a permanent or semi-permanent collection of living animals kept in enclosures for the purpose of displaying the animals to the public including public aquariums displaying aquatic animals. 4)Provides that an "animal enclosure" includes, but is not limited to, an aquarium or tank used to house or display aquatic animals. EXISTING LAW : 1)States that it is a misdemeanor punishable by six months in county jail for every person who willfully enters any lands under cultivation or enclosed by fence, belonging to, or occupied by, another, or entering upon uncultivated or unenclosed lands where signs forbidding trespass are displayed at intervals not less than three to the mile along all AB 1675 Page 2 exterior boundaries and at all roads and trails entering the lands without the written permission of the owner of the land, the owner's agent or of the person in lawful possession and: a) Refuses or fails to leave the lands immediately upon being requested by the owner of the land, the owner's agent or by the person in lawful possession to leave the lands; b) Tears down, mutilates, or destroys any sign, signboard, or notice forbidding trespass or hunting on the lands; c) Removes, injures, unlocks, or tampers with any lock on any gate on or leading into the lands; or, d) Discharges any firearm. [Penal Code Section 602(l).] 2)Provides that any person who willfully enters and occupies real property or structures of any kind without the consent of the owner, the owner's agent, or the person in lawful possession, is guilty of a misdemeanor. [Penal Code Section 602(m).] 3)Allows for prosecution against those who refuse or fail to leave land, real property, or structures belonging to or lawfully occupied by another and not open to the general public, upon being requested to leave by a peace officer at the request of the owner, the owner's agent, or the person in lawful possession, and upon being informed by the peace officer that he or she is acting at the request of the owner, the owner's agent, or the person in lawful possession or the owner, the owner's agent, or the person in lawful possession. [Penal Code Section 602(o).] 4)Provides that any person who, without the written permission of the landowner, the owner's agent, or the person in lawful possession of the land, willfully enters any lands under cultivation or enclosed by a fence, belonging to, or occupied by, another, or who willfully enters upon uncultivated or unenclosed lands where signs forbidding trespass are displayed at intervals not less than three to the mile along all exterior boundaries and at all roads and trials entering lands, is guilty of a public offense punishable as follows: a) A first offense is an infraction punishable by a fine of $75; AB 1675 Page 3 b) A second offense on the same land or any contiguous land of the same landowner, without the permission of the landowner, the landowner's agent, or the person in lawful possession of the land, is an infraction punishable by a fine of $250; and, c) A third or subsequent offense on the same land or any contiguous land of the same landowner, without the permission of the landowner, the landowner's agent, or the person in lawful possession of the land, is a six-month misdemeanor. (Penal Code Section 602.8.) FISCAL EFFECT : Unknown COMMENTS : 1)Author's Statement : According to the author, "Current trespassing law is not fully protecting our zoos and in turn the endangered species they protect. AB 1675 will help California zoos better protect their animals and deter anyone who tries to harm them." 2)Intent to Occupy : In order to charge a crime of trespass for entering into an animal enclosure, a prosecutor would likely have to use Penal Code Section 602(m), which creates a crime of trespass for "entering and occupying real property or structures of any kind without the consent of the owner, the owner's agent, or the person in lawful possession." The problem with using Penal Code Section 602(m) is the prosecutor will have to prove intent to occupy the space. [People v. Wilkinson, 248 Cal. App. 2d Supp. 906, 56 Cal. Rptr. 261 (1967).] In Wilkinson, the court held that "the transient overnight use of four 3 x 7 foot areas in a very large ranch for sleeping bags and campfire purposes was not the type of conduct which the Legislature intended to prevent by use of the word 'occupy' [in Penal Code section 602, subdivision [(m)]]." The court further held, "Having in mind the legislative purpose in passing subdivision [(m)] of section 602, it is rather obvious that some degree of dispossession and permanency be intended." (Id. at 910, 264.) AB 1675 Page 4 Under this holding, the law requires more than a temporary stay as Penal Code Section 602(m) was intended to criminalize "squatting." It is unlikely that entrance into an animal enclosure would constitute occupation under the holding of Wilkinson. Recently, a man was arrested for trespassing after entering the bear grotto at the San Francisco Zoo. The superior court judge dismissed the misdemeanor trespassing charge as the defendant's brief stay in the bear grotto did not meet the legal definition of trying to "occupy" the enclosure. [Van Derbeken, Man Acquitted in Zoo Grizzly-Grotto Incident, San Francisco Chronicle (Nov. 4, 2009).] This bill remedies this problem by creating a new misdemeanor trespass crime for entering into animal enclosures at zoos without authorization. 3)Arguments in Support : According to the San Francisco Zoo (the sponsor of this bill), "As currently interpreted, current law allows any individual to enter into any zoological animal exhibit or holding area despite the potential threat to themselves, the living animals housed therein, the staff, or the visiting public if they are not intending to 'occupy' , or live in, the animal exhibit or enclosure. "We believe this decision sets a dangerous precedent that would allow anyone unsupervised or without the required permissions to enter into living animal exhibits, exposing themselves to serious bodily harm with the result that they in turn could sue the zoological facility or the government entity owning or operating the facility as a result of such behavior." 4)Prior Legislation : a) SB 331 (Romero), of the 2007-08 Legislative Session, would have created an infraction, punishable by a fine, for any person to willfully enter upon Indian lands occupied by a federally recognized tribe, band, or group of which the person is not a member after receiving written notice forbidding trespassing. SB 331 failed passage in the Assembly Appropriations Committee. b) SB 804 (Hollingsworth), of the 2007-08 Legislative Session, would have created a new six-month misdemeanor AB 1675 Page 5 against those persons who committed trespass by interfering with a business and thereafter returned to the business within six months after being requested not to do so. SB 804 failed passage in the Senate Public Safety Committee because it potentially aggravated the jail overcrowding situation. c) AB 2155 (Garcia), of the 2007-08 Legislative Session, would have provided that any person who willfully enters upon any casino owned and operated by a federally recognized Indian tribe, band or group, after receiving specified notice or signing a specified request, is guilty of a misdemeanor punishable by imprisonment in the county jail not exceeding six months, a fine not exceeding $1,000 or by both that imprisonment and fine. AB 2155 was never heard by the Assembly Appropriations Committee. d) AB 924 (Maldonado), Chapter 101, Statutes 2003, increased the fine against those who willfully enter any lands under cultivation or enclosed by fence belonging to, or occupied by, another person; or, willfully enters upon uncultivated or unenclosed lands where signs forbidding trespass are displayed at intervals not less than three to the mile along all exterior boundaries and at all roads and trails entering the lands from $10 to $100 for a first offense and from $100 to $250 for a second offense. REGISTERED SUPPORT / OPPOSITION : Support San Francisco Zoo (Sponsor) California Association of Joint Powers Authorities Sacramento Zoological Society Opposition None Analysis Prepared by : Meghan Masera / PUB. S. / (916) 319-3744