BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair A 2009-2010 Regular Session B 1 6 7 AB 1675 (Hagman) 5 As Amended June 14, 2010 Hearing date: June 22, 2010 Penal Code JM:dl TRESPASS: ZOO, CIRCUS, ANIMAL EXHIBIT AND AQUARIUM ENCLOSURES HISTORY Source: San Francisco Zoo Prior Legislation: None directly on point Support: California Association of Joint Powers Authorities; Sacramento Zoological Society; California Association of Museums; California Travel Industry Association; California Association of Joint Powers Authorities; Feld Entertainment, Inc. Opposition:None known Assembly Floor Vote: Ayes 74 - Noes 0 KEY ISSUES (More) AB 1675 (Hagman) PageB SHOULD A NEW FORM OF TRESPASS BE DEFINED THAT WOULD BE COMMITTED WHERE A PERSON, WITHOUT CONSENT, ENTERS AN ANIMAL ENCLOSURE IN A ZOO, CIRCUS, AQUARIUM OR TRAVELING ANIMAL EXHIBIT, AS SPECIFIED? (CONTINUED) SHOULD AN ANIMAL ENCLOSURE BE DEFINED AS A DISCRETE CONTAINMENT AREA, SUCH AS A CAGE, STALL, PEN, OR TANK THAT IS USED TO HOUSE OR DISPLAY AN ANIMAL AND IS NOT GENERALLY ACCESSIBLE TO THE PUBLIC? SHOULD THIS CRIME APPLY ONLY IF THE ZOO, CIRCUS, AQUARIUM, OR OTHER EXHIBIT POSTED A NOTICE PROHIBITING ENTRANCE INTO THE ENCLOSURE? SHOULD THIS OFFENSE BE AN ALTERNATE MISDEMEANOR-INFRACTION (WOBBLETTE)? PURPOSE The purposes of this bill are to 1) define a new form of trespass that would be committed where a person, without consent and contrary to a posted notice, enters an animal enclosure in a zoo, circus, aquarium or traveling animal exhibit, and 2) to provide that the offense shall be an alternate misdemeanor-infraction. Existing law 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 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: Refuses or fails to leave the lands immediately upon being (More) AB 1675 (Hagman) PageC requested by the owner of the land, the owner's agent or by the person in lawful possession to leave the lands; Tears down, mutilates, or destroys any sign, signboard, or notice forbidding trespass or hunting on the lands; Removes, injures, unlocks, or tampers with any lock on any gate on or leading into the lands; or, Discharges any firearm. (Pen. Code 602(l).] Existing law 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. (Pen. Code 602(m).) Existing law 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. (Pen. Code 602(o).) Existing law 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 first offense is an infraction punishable by a fine of $75; 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, A third or subsequent offense on the same land or any (More) AB 1675 (Hagman) PageD 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.) This bill makes it an alternate misdemeanor-infraction for any person, without consent, to enter an animal enclosure at a zoo, circus, or traveling animal exhibit, if the zoo, circus or exhibit is licensed or permitted to display living animals to the public. A misdemeanor conviction is punishable by up to six-months in the county jail, a fine not exceed $1,000, or both. An infraction conviction is punishable by a fine of up to $250. This bill provides that the crime only applies if signs prohibiting entrance into the animal enclosures have been posted either at the entrance to the facility or exhibit or on the animal enclosure. This bill includes cross-references and statutory provisions for the application of standard alternate-misdemeanor infraction procedures to this offense. This bill creates exemptions 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. This bill defines a "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. This bill provides that an "animal enclosure" is a discrete containment area, such as the interior of a cage, stall, pen, aquarium or tank, that is used to house or display an animal and which is not generally accessible to the public. This bill includes an exception for a public officer acting within the scope or his or her employment. (More) AB 1675 (Hagman) PageE RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION The severe prison overcrowding problem California has experienced for the last several years has not been solved. In December of 2006 plaintiffs in two federal lawsuits against the Department of Corrections and Rehabilitation sought a court-ordered limit on the prison population pursuant to the federal Prison Litigation Reform Act. On January 12, 2010, a federal three-judge panel issued an order requiring the state to reduce its inmate population to 137.5 percent of design capacity -- a reduction of roughly 40,000 inmates -- within two years. In a prior, related 184-page Opinion and Order dated August 4, 2009, that court stated in part: "California's correctional system is in a tailspin," the state's independent oversight agency has reported. . . . (Jan. 2007 Little Hoover Commission Report, "Solving California's Corrections Crisis: Time Is Running Out"). Tough-on-crime politics have increased the population of California's prisons dramatically while making necessary reforms impossible. . . . As a result, the state's prisons have become places "of extreme peril to the safety of persons" they house, (Governor Schwarzenegger's Oct. 4, 2006 Prison Overcrowding State of Emergency Declaration), while contributing little to the safety of California's residents, California "spends more on corrections than most countries in the world," but the state "reaps fewer public safety benefits." . . . . Although California's existing prison system serves neither the public nor the inmates well, the state has for years been unable or unwilling to implement the reforms necessary to reverse its continuing deterioration. (Some citations omitted.) . . . The massive 750% increase in the California prison (More) AB 1675 (Hagman) PageF population since the mid-1970s is the result of political decisions made over three decades, including the shift to inflexible determinate sentencing and the passage of harsh mandatory minimum and three-strikes laws, as well as the state's counterproductive parole system. Unfortunately, as California's prison population has grown, California's political decision-makers have failed to provide the resources and facilities required to meet the additional need for space and for other necessities of prison existence. Likewise, although state-appointed experts have repeatedly provided numerous methods by which the state could safely reduce its prison population, their recommendations have been ignored, underfunded, or postponed indefinitely. The convergence of tough-on-crime policies and an unwillingness to expend the necessary funds to support the population growth has brought California's prisons to the breaking point. The state of emergency declared by Governor Schwarzenegger almost three years ago continues to this day, California's prisons remain severely overcrowded, and inmates in the California prison system continue to languish without constitutionally adequate medical and mental health care.<1> The court stayed implementation of its January 12, 2010 ruling pending the state's appeal of the decision to the U.S. Supreme Court. On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear the state's appeal in this case. This bill does not appear to aggravate the prison overcrowding crisis described above. --------------------------- <1> Three Judge Court Opinion and Order, Coleman v. Schwarzenegger, Plata v. Schwarzenegger, in the United States District Courts for the Eastern District of California and the Northern District of California United States District Court composed of three judges pursuant to Section 2284, Title 28 United States Code (August 4, 2009). (More) AB 1675 (Hagman) PageG COMMENTS 1. Need for This Bill According to the author: Current trespassing laws do not fully protect our zoos and the endangered species in these facilities. AB 1675 will help California zoos better protect their animals and deter anyone who tries to harm them. 2. Intent to Occupy Element in Existing Trespass Crime Under existing law, where a prosecutor seeks to prosecute a person for entering into an animal enclosure at a zoo without consent, the prosecutor would likely attempt to charge the defendant with trespass under Penal Code Section 602, subdivision (m). That provision defines a form 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." Thus, it appears that to obtain a conviction under this section, the prosecutor must prove that the defendant intended to occupy the space. (People v. Wilkinson, (1967) 248 Cal. App. 2d Supp. 906.) 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 p. 910.) The court in Wilkinson appears to have limited reach of subdivision (m) to cases where the defendant was essentially "squatting" in the place where the alleged trespass occurred. It is unlikely that entrance into an animal enclosure would constitute occupation under the holding of Wilkinson. (More) AB 1675 (Hagman) PageH 3. Incident at San Francisco Zoo in which a Man entered a Grizzly Bear Enclosure In 2009, Kenneth Herron, a 21-year-old man suffering from a mental illness, was prosecuted for trespass and disturbing dangerous animals<2> after entering the bear grotto at the San Francisco Zoo. The superior court dismissed the misdemeanor trespassing charge, finding that Herron's brief stay in the bear grotto did not meet the legal definition of trying to "occupy" the enclosure. The jury acquitted Herron on the remaining charge of disturbing a dangerous animal. One juror explained that jurors concluded that that Herron had not disturbed the bear. Further, the jurors believed that Herron, because of his mental illness, may not have willingly entered the den. Herron had told authorities that the voice of a well-known model had told him to enter the bear den and save a girl who was in distress. (Van Derbeken, Man Acquitted in Zoo Grizzly-Grotto Incident, San Francisco Chronicle (Nov. 4, 2009).) (More) --------------------------- <2> The trespass charge was filed under state law. The disturbing an animal charge was filed under a San Francisco misdemeanor ordinance. The Chronicle article noted that the court ordered Herron to be released after the acquittal, although he was being sought under a warrant from Union City (in the East Bay). One could argue that the threat or availability of a misdemeanor conviction under this bill would not have prevented the incident in which Herron entered the bear enclosure. However, a person who is not suffering from mental illness, but rather a lack of good judgment, could perhaps be dissuaded from entering a zoo enclosure because of the threat of a misdemeanor prosecution. Further, one could argue that a misdemeanor conviction could have made Herron eligible for mental health services while on probation, services that might not be available otherwise. 4. Application of the Bill to Circuses and Similar Entities In addition to making unauthorized entry of an animal enclosure at a zoo or aquarium trespass, the bill applies to such conduct at a circus or a traveling animal exhibit. These are different kinds of facilities or entities than a traditional zoo or aquarium. SHOULD THIS BILL APPLY TO ENTITIES SUCH AS CIRCUSES? SHOULD ENTRY INTO AN ANIMAL ENCLOSURE AT A ZOO OR AQUARIUM BE A MISDEMEANOR OR INFRACTION? 5. Argument in Support The San Francisco Zoo argues in support 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 (More) AB 1675 (Hagman) PageJ 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. SHOULD A NEW FORM TRESPASS - AS AN ALTERNATE MISDEMEANOR-INFRACTION - BE ENACTED THAT WOULD BE COMMITTED WHERE A PERSON, WITHOUT PERMISSION, ENTERS AN ANIMAL ENCLOSURE AT A ZOO, ANIMAL EXHIBIT, CIRCUS, OR AQUARIUM? ***************