BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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8
SB 318 (Calderon)
As Introduced February 25, 2009
Hearing date: April 21, 2009
Penal Code
MK:mc
DOGFIGHTING FORFEITURES
HISTORY
Source: Humane Society of the United States; The
American SPCA; California State Sheriffs' Association
Prior Legislation: SB 1775 (Calderon) - 2008, failed in Senate
Public Safety
Support: Humane Society Veterinary Medical Association; Friends
of Auburn/Tahoe Vista Placer County Animal Shelter; Los
Angeles County District Attorney's Office; a few
individuals
Opposition:American Civil Liberties Union; Taxpayers for
Improving Public Safety
KEY ISSUES
SHOULD THE LAW PROVIDE FOR FORFEITURE OF PROPERTY ACQUIRED THROUGH
THE COMMISSION OF DOGFIGHTING?
SHOULD THE LAW PROVIDE FOR THE FORFEITURE OF PROPERTY USED TO
PROMOTE, FURTHER OR FACILITATE DOGFIGHTING?
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SHOULD PROCEEDS FROM THE SALE OF FORFEITED PROPERTY GO IN PART TO
LOCAL NON-PROFIT ANIMAL RESCUE ORGANIZATIONS AND LAW ENFORCEMENT
AGENCIES THAT INVESTIGATE AND PROSECUTE DOGFIGHTING CRIMES?
PURPOSE
The purpose of this bill is to provide for the forfeiture of any
property interest that was either acquired through the
commission of dogfighting, or used to promote, further or
facilitate dogfighting.
Existing law states that if any person owning or having custody
and control of a mischievous animal, knowing its propensities,
willfully suffers the animal to go at large, or keeps the
animal without ordinary care, and the animal, while at large or
while not kept with ordinary care, kills any human being who
has taken all precautions that the circumstances permitted or
which a reasonable person would ordinarily take in a similar
situation, is guilty of a felony. (Penal Code 399(a).)
Existing law provides that if any person owning or having
custody of a mischievous animal, knowing its propensities,
willfully suffers it to go at large, or keeps the animal without
ordinary care, and the animal, while at large or while not kept
with ordinary care, causes serious bodily injury to any human
being who has taken all the precautions that circumstances
permitted, or which a reasonable person would ordinarily take in
the same situation, is guilty of a misdemeanor or a felony.
(Penal Code 399(b).)
Existing law provides that any person owning or having custody
or control of a dog trained to fight, attack, or kill is guilty
of an alternate misdemeanor/felony, punishable by imprisonment
in the state prison for two, three or four years; in the county
jail not to exceed one year; by a fine not exceeding $10,000; or
by both such fine and imprisonment if, as a result of the human
being on two separate occasions or on one occasion causing
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substantial physical injury. Existing law also states that no
person shall be criminally liable under this section unless he
or she knew or reasonably should have known of the vicious and
dangerous nature of the dog, or if the victim failed to take all
the precautions that a reasonable person would ordinarily take
in the same situation. (Penal Code 399.5(a).)
Existing law states that following a conviction under this
section, a court shall hold a hearing to determine whether
conditions of the treatment or confinement of the dog or other
circumstances existing at the time of the bite or bites have
changed so as to remove the danger to other persons presented
by the animal. Existing law also provides that the court,
after the hearing, may make any order it deems appropriate to
prevent the recurrence of such an incident including, but not
limited to, the removal of the animal from the area or
destruction if necessary. (Penal Code 399.5(b).)
Existing law states that nothing in this section shall be
construed to affect the liability of the owner of a dog
under Penal Code Section 399 or any other provision of law.
(Penal Code 399.5(d).)
Existing law states that this section shall not apply to a
veterinarian or an on-duty animal control officer while in the
performance of his or her duties or to a peace officer, as
defined, if he or she is assigned to a canine unit. (Penal Code
399.5(e).)
Existing law provides that any person, who for amusement or
gain, causes any bull, bear, or other animal, not including
any dog, to fight with the like kind of animal or creature, or
causes any animal, including any dog, to fight with a
different kind of animal or creature, or with any human being;
or who, for amusement or gain, worries or injures any bull,
bear, dog, or other animal, or causes any bull, bear or other
animal, not including any dog, to worry or injure each other;
any person who permits the same to be done on any premises
under his or her charge or control; and any person who aids,
abets, is guilty of a misdemeanor punishable by up to one year
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in jail and/or a fine of $5,000. (Penal Code 597b(a).)
Existing law makes it a misdemeanor to cause, for amusement or
gain, an animal to fight a like or different animal. The
penalty for a first offense is up to one year in county jail
and/or a fine of $5,000. A second or subsequent violation of
this section or Penal Code Sections 597c or 597j is a
misdemeanor with a penalty of up to one year in county jail
and/or a fine up to $25,000. (Penal Code 597b(b).)
Existing law provides that any person who is knowingly
present as a spectator at any place, building, or tenement
for an exhibition of animal fighting, or who is knowingly
present where preparations are being made for animal
fighting is guilty of a misdemeanor. (Penal Code 597c.)
Existing law makes it a misdemeanor for any person to own,
possess, keep or train any bird or animal with the intent that
it be used in an exhibition of fighting. The penalty for a
first offense is up to one year in county jail and/or a fine of
$5,000. A second or subsequent violation of this section or
Penal Code Sections 597b or 597c is a misdemeanor with a penalty
of up to one year in county jail and/or a fine up to $25,000.
(Penal Code 597j.)
Existing law provides that peace officers do not need a warrant
to enter a building where there is an exhibition of the fighting
of birds or animals, or where preparations are being made for
such an exhibition and may arrest all persons present. (Penal
Code 597d.)
Existing law provides that every owner, driver, or possessor of
any animal who permits the animal to be in any building,
enclosure, lane, street, square or lot, of any city, city and
county, or judicial district without proper care and attention,
shall, on conviction, be guilty of a misdemeanor. (Penal Code
597f(a).)
Existing law provides that an officer making an arrest at an
animal fight may take possession of all birds or animals and all
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paraphernalia, implements or other property related to the
animal fighting. (Penal Code 599aa.)
Existing law provides that any person who does any of the
following is guilty of a felony and is punishable by
imprisonment in the state prison for 16 months, 2 or 3 years
or by a fine not exceeding $50,000:
Owns, possesses, keeps, or trains any dog,
with the intent that the dog shall be engaged in
an exhibition of fighting with another dog.
For amusement or gain, causes any dog to fight
with another dog, or causes any dogs to injure
each other.
Permits either of the above to be done on any
premises under his or her charge or control, or
aids, or abets that act. (Penal Code 597.5
(a).)
Existing law provides that any person who is knowingly
present, as a spectator, at any place, building, or tenement
where preparations are being made for an exhibition of the
fighting of dogs, with the intent to be present at those
preparations, or is knowingly present at the exhibitions or at
any other fighting or injuring with the intent to be present
at that exhibition, fighting or injuring, is guilty of a
misdemeanor. (Penal Code 597.5 (b).)
Existing law provides that any officer making an arrest under
specified animal protection statute may lawfully take
possession of all birds or animals and all paraphernalia,
implements or other property or things used or employed or
about to be employed in the violation of any of the provisions
of this code relating to the fighting of birds or animals that
can be used in animal or bird fighting, in training animals or
birds to fight, or to inflict pain or cruelty upon animals or
birds in respect to animal or bird fighting and sets forth the
care of the animals and paraphernalia seized. Upon
conviction, all property seized shall be adjudged by the court
to be forfeited and shall then be destroyed or otherwise
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disposed of as the court may order. The court may also order
the person to make payment to the appropriate public entity
for the costs incurred in the housing, care and feeding of the
birds or animals. (Penal Code 599aa.)
This bill provides that in any case in which a person is
convicted of any of the crimes described in Penal Code Section
597.5(a) the property or interest, whether tangible or
intangible, was acquired through the commission of any of the
listed crimes or used to promote, further, or facilitate the
crimes shall be subject to forfeiture, including both personal
and real profits, proceeds, and the instrumentalities acquired,
accumulated, or used by dogfighting participants, organizers,
transporters of animals and equipment, property owners who
knowingly allow their premises to be used for dogfighting and
other activities in support of dogfighting, and breeders and
trainers of fighting dogs, and persons who steal and illegally
obtain dogs and other animals for fighting, including bait and
sparring animals.
This bill provides that notwithstanding the above, the following
property shall not be subject to forfeiture under this section:
Property solely owned by a bona fide purchaser for
value, who was without knowledge that the property was
intended to be used for a purpose which would subject it to
forfeiture under this section, or is subject to forfeiture
under this section.
Property used as a family residence and owned by two or
more inhabitants, one of whom had no knowledge or its
unlawful use.
This bill provides that the prosecuting agency shall, in
conjunction with the criminal proceeding, file a petition of
forfeiture with the superior court of the county in which the
defendant has been charged with the commission of any of the
crimes listed in Penal Code Section 597.5 that shall allege that
the defendant has committed those crimes and the property is
forfeitable under this bill.
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This bill provides that the prosecuting agency shall make
service of process of a notice regarding petition for forfeiture
upon every individual who may have a property interest in the
alleged proceeds. The notice shall state that any interested
party may file a verified claim with the superior court stating
the amount of the party's claimed interest and an affirmation or
denial of the prosecuting agency's allegation.
This bill provides that if the notices cannot be served by
registered mail or personal delivery, the notices shall be
published for at least three consecutive weeks in a newspaper of
general circulation in the county where the property is located.
This bill provides that if the property alleged to be subject to
forfeiture is real property, the prosecuting agency shall, at
the time of filing the petition of forfeiture, record a lis
pendens in each county in which real property alleged to be
subject to forfeiture is located.
This bill provides that the judgment of forfeiture shall not
affect the interest of any third party in real property that was
acquired prior to the recording of the lis pendens.
This bill provides that all notices shall set forth the time
within which a claim of interest in the property seized is
required to be filed.
This bill provides that any person claiming an interest in the
property or proceeds seized may, at any time within 30 days from
the date of the first publication of the notice of seizure, or
within 30 days after receipt of the actual notice, file with the
superior court of the county in which the action is pending, a
verified claim stating his or her interest in the property or
proceeds. A verified copy of the claim shall be given by the
claimant to the Attorney General, or the district or city
attorney, whichever is the prosecuting agency of the underlying
crime.
This bill provides that if at the end of the time set forth, an
interested person, other than the defendant has not filed a
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claim, the court, upon a motion, shall declare that the person
has defaulted upon his or her alleged interest, and it shall be
subject to forfeiture upon proof of the elements.
This bill provides that the defendant may admit or deny that the
property is subject pursuant to this section. If the defendant
fails to admit or deny, or fails to file a claim of interest in
the property or proceeds, the court shall enter a response of
denial on behalf of the defendant.
This bill provides that the forfeiture proceeding shall be set
for hearing in the superior court in which the underlying
criminal offense will be tried.
This bill provides that if the defendant is found guilty of the
underlying offense, the issue of forfeiture shall be promptly
tried, either before the same jury or before a new jury in the
discretion of the court, unless waived by the consent of all
parties.
This bill provides that at the forfeiture hearing, the
prosecuting agency shall have the burden of establishing beyond
a reasonable doubt that the defendant was engaged in any of the
crimes described and that the property meets the requirements
for forfeiture.
This bill provides that concurrent with, or subsequent to, the
filing of the petition, the prosecuting agency may move the
superior court for the following pendent elite orders to
preserve the status quo of the property alleged in the petition
of forfeiture:
An injunction to restrain all interested
parties and enjoin them from transferring,
encumbering, hypothecating, or otherwise
disposing of property.
Appointment of a receiver to take possession
of, care for, manage, and operate the assets and
properties so that such property may be
maintained and preserved.
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This bill provides that no preliminary injunction may be granted
or receiver appointed without notice to the interested parties
and a hearing to determine that the order is necessary to
preserve the property pending the outcome of the criminal
proceedings, and that there is probable cause to believe that
the property alleged in the forfeiture proceedings are proceeds
or property interests forfeitable. However, a temporary
restraining order may issue pending the hearing pursuant to the
provisions of Section 527 of the Code of Civil Procedure.
This bill provides that if the trier of fact at the forfeiture
hearing finds that the alleged property or proceeds are
forfeitable and that the defendant was convicted of a crime
listed, the court shall declare that the property or proceeds
forfeited to the state or local governmental entity, subject to
distribution as provided.
This bill provides that if the trier of fact at the forfeiture
hearing finds the alleged property is forfeitable but does not
find that a person holding a valid lien, mortgage, security
interest or interest under a conditional sales contract acquired
that interest with actual knowledge that the property was to be
used for a purpose for which forfeiture is permitted and the
amount due to that person is less than the appraised value of
the property, that person may pay the state or local
governmental entity that initiated the forfeiture proceeding the
amount of the registered owner's equity that shall be deemed to
be the difference between the appraised values and the amount of
the lien, mortgage, security interest, or interest under a
conditional sales contract. Upon that payment, the state or
local governmental entity shall relinquish all claims to the
property.
This bill provides that if the holder of the interest elects not
to make that payment to the state or local governmental entity,
the property shall be deemed forfeited to the state or local
governmental entity.
This bill provides the appraised value shall be determined as of
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the date judgment is entered either by agreement between the
legal owner and the governmental entity involved, or if they
cannot agree, by a court-appointed appraiser for the county in
which the action is brought.
This bill provides when the property is sold by the Department
of General Services or a local entity, the distribution of funds
is as follows:
To the bona fide or innocent purchaser,
conditional sales vendor, or holder of a valid
lien, mortgage, or security interest, if any, up
to the amount of his or her interest in the
property or proceeds, when the court declaring
the forfeiture orders a distribution to that
person. The court shall endeavor to discover all
those lienholders and protect their interests and
may, at its discretion, order the proceeds placed
in escrow for a period not to exceed 60
additional days to ensure that all valid claims
are received and processed.
To the Department of General Services or local
governmental entity for all expenditures made or
incurred by it in connection with the sale of the
property, including expenditures for any
necessary repairs, storage, or transportation of
any property seized under this section.
To local nonprofit organizations whose primary
activities include ongoing, rescue, foster or
other care of animals that are the victims of
dogfighting, and to law enforcement entities,
including multiagency task forces that actively
investigate and prosecute animal fighting crimes.
Any remaining funds not fully distributed to
organizations or entities shall be deposited in
an escrow account or restricted fund to be
distributed to the nonprofit entities as soon as
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possible.
This bill makes the following codified findings and
declarations:
Dogfighting is an insidious underground
organized crime and, notwithstanding its absolute
prohibition in America, this crime has reached
epidemic proportions in all urban communities and
continues to thrive in many rural areas as well.
Many communities have been morally, socially,
and culturally scarred by the continuing presence
of dogfighting. Children who are exposed to the
unfathomable violence of dogfighting are
conditioned to believe that violence is normal
and are systematically desensitized to the
consequential suffering.
Dog fighters are violent criminals who engage
in a whole host of peripheral criminal
activities. Many are heavily involved in
organized crime, racketeering, drug distribution,
and gang-related criminal activity; and they
arrange and attend the fights as a forum for
gambling and drug trafficking. These activities,
both individually and collectively, present a
clear and present danger to public order and
safety and are not constitutionally protected.
An effective means of punishing and deterring
the criminal activities of dog fighters is
through forfeiture of the property, both personal
and real, profits, proceeds, and the
instrumentalities acquired, accumulated, or used
by dogfighting participants, organizers,
transporters of animals and equipment, property
owners who allow their premises to be used for
dogfighting and other activities in support of
dogfighting, and breeders and trainers of
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fighting dogs, and persons who steal and
illegally obtain dogs and other animals for
fighting, including bait and sparring animals.
Dogfighting not only encourages and furthers
antisocial values and violence but it also
results in the antisocialization of dogs thereby
making them a danger to the community at large.
Police officers, firefighters, utility, and other
municipal workers are at increasing risk in the
course of their employment on both public and
private property because of the epidemic number
of dogs that have been bred and trained to fight
each other as well as other animals, small
children, and adults.
Public animal shelters, humane societies, and
nonprofit animal rescue and adoption groups that
rescue and care for animals bear much of the
social, economic, and moral burden caused by
dogfighting. Specialized multiagency law
enforcement entities such as anticruelty task
forces comprised of municipal animal control,
local police, sheriff, and city and district
attorneys investigating, arresting, and
prosecuting dogfighting and other crimes against
animals are a critical component of the goal of
reducing and eliminating this heinous crime in
California, yet these agencies suffer from
limited resources.
Forfeited property, profits, proceeds, and
instrumentalities acquired, accumulated, or used
by dogfighting participants and others acting in
support of dogfighting, should be sold to support
efforts to care for abused animals and the law
enforcement entities specially formed to address
dogfighting and animal cruelty, wherever
possible. Distribution of the above should be
determined by the state or local governing bodies
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depending upon which is responsible for the
prosecution, as a result of which the proceeds
were seized.
It is the intent of the Legislature in
enacting this act to seek the eradication of
dogfighting by systematically reducing the
economic resources available to those criminals
who facilitate and support the crime of
dogfighting.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
----------------------
<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
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correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
Dog fighting is an insidious underground, organized
crime and that has reached epidemic proportions in urban
communities and thrives in many rural areas as well.
Many communities have been morally, socially and
culturally scarred by the continuing presence of dog
fighting. Children who are exposed to the unfathomable
violence of dog fighting are conditioned to believe that
violence is normal and are systematically desensitized
to the consequential suffering. Dog fighters are often
violent criminals that engage in a whole host of
peripheral criminal activities, such as gangs,
racketeering and drug trafficking. These activities
present a clear and present danger to public order and
-----------------------
<2> Three Judge Court Tentative Ruling, 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 (Feb. 9, 2009).
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safety and are not constitutionally protected.
In order to seek eradication of dog fighting by
systematically reducing the economic resources available
to these criminals who facilitate and support the crime
of dog fighting, Senator Calderon has introduced SB
1775.
The measure is a means of punishing and deterring the
criminal activities of dog fighters is through
forfeiture of the property, both personal and real,
profits, proceeds and the instrumentalities acquired,
accumulated or used by dog fighting participants,
organizers, transporters of animals and equipment,
property owners who allow their premises to be used for
dog fighting and other activities in support of dog
fighting, breeders of, trainers of, and persons who
steal and illegally obtain dogs and other animals for
fighting, including bait and sparring animals.
Proceeds acquired through the post-conviction forfeiture
process will be distributed to law enforcement agencies
to help reimburse the costs associated with
investigating and prosecuting dog fighting cases and
animal-welfare organization that care for and
rehabilitate animals rescued from dog fighters.
Also, beyond last year's measure, SB 318 includes added
protections against the seizure and forfeiture of a
family home unless it can be shown both adult occupants
were aware of the illegal activity.
2. Forfeiture for Dogfighting
Existing law permits forfeiture for any property interest
whether tangible or intangible acquired through a pattern of
criminal profiteering activity. Criminal profiteering activity
includes any act committed or attempted or any threat made for
financial gain or advantage which act or threat may be charged
as a crime under specified enumerated felony sections. (Penal
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Code 186.2; 186.3.) The law sets up the procedures for
forfeiture upon a conviction of a pattern of criminal
profiteering. (Penal Code 186 et seq.) A pattern of criminal
profiteering means engaging in at least two incidents of
criminal profiteering. (Penal Code 186.2(b).)
Existing law also permits the seizure of any animals used in
fighting as well as all paraphernalia, implements or other
property or things used or employed, or about to be employed in
violation of any bird or animal fighting statute. Upon
conviction, the items seized shall be deemed forfeited. (Penal
Code 599aa.)
This bill takes the procedures that are set up for
forfeiture for criminal profiteering and applies them to
forfeiture not only of property acquired through the
commission of felony dogfighting related crimes but also any
property used to promote, further or facilitate the crimes.
ARE EXISTING FORFEITURE FOR ANIMAL FIGHTING PROVISIONS
SUFFICIENT?
a. Property acquired through dogfighting
This bill would provide a process for forfeiture when
a person is convicted of a dogfighting related offense
for property acquired through the dogfighting. Thus
any property that a person used profits from
dogfighting to purchase can be forfeited. This
includes real property. This is the standard used for
forfeiture under the criminal profiteering provisions.
SHOULD PROPERTY ACQUIRED THROUGH DOGFIGHTING BE SUBJECT TO
FORFEITURE?
b. Property used to promote, further or facilitate
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In addition to property acquired through the commission
of the crime of dogfighting, this bill provides for the
forfeiture of property used to promote, further or
facilitate the crime of dogfighting. What is used to
promote, further or facilitate is not clearly defined and
could be interpreted broadly.
Forfeiting property used to promote, further or
facilitate is beyond what is currently forfeitable for
criminal profiteering and offenses such as murder, mayhem
or kidnapping. Drug forfeiture provisions do allow for
forfeiture of items used to sell illegal drugs, but those
provisions have specific protections for innocent owners
or when the property is also used for a lawful purpose,
such as a home. (See generally Health and Safety Code
11469 et seq.) The Humane Veterinary Medical Association
argues that "[b]y allowing for the seizure and forfeiture
of assets of those involved in dog fighting, this measure
would help reduce the financial incentives that keep this
illicit activity profitable."
The ACLU opposes this bill and this provision
specifically stating:
This bill authorizes the civil forfeiture of
property, including real property, when "used
to promote, further, or facilitate the crimes
listed in Section 597.5." The forfeiture
proposed in this bill violates the
fundamental constitutional rights, including
the right not to be deprived of property
without due process and the right to be free
from punishment that is disproportionate to
the offense. In fact, this bill permits
property forfeiture that is not allowed for
much more serious crimes like murder, mayhem
or kidnapping.
We urge the author to explore more
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appropriate alternative. Much of this bill
incorporates the existing forfeiture process
used in criminal profiteering cases. Adding
this particular offense to the existing list
in Penal Code Section 186.2 would be
consistent with the intent of this bill and
establish a more balanced forfeiture process.
Is it appropriate to allow forfeiture in
circumstances where forfeiture is not allowed
under the existing criminal profiteering scheme
for other very serious offenses without including
additional safeguards?
SHOULD PROPERTY USED TO PROMOTE, FURTHER OR FACILITATE
DOGFIGHTING BE SUBJECT TO FORFEITURE?
IS DOGFIGHTING MORE SERIOUS THAN OTHER OFFENSES SUCH AS MURDER,
MAYHEM AND KIDNAPPING SO THAT THE FORFEITURE IN THESE CASES
SHOULD BE BROADER THAN IN THOSE CASES?
DOES THIS BILL CONTAIN THE INNOCENT OWNER TYPE PROTECTIONS THAT
EXIST IN DRUG FORFEITURE WHERE ITEMS THAT ARE USED TO FURTHER
BUT NOT ACQUIRED BY THE CRIME MAY BE FORFEITED?
c. Distribution of funds
The existing forfeiture for criminal profiteering
statutes specifies how the funds shall be distributed.
This bill copies that existing scheme but also includes
the distribution of funds to "local non-profits whose
primary activities include ongoing rescue, foster, or
other care of animals that are the victims of
dogfighting, and to law enforcement entities, including
multiagency task forces, that actively investigate and
prosecute animal fighting crimes."
The supporters point out that having part of the
forfeiture money go to the nonprofits will assist in
their burden of rescue and caring for the animals. A
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question could be raised, however, about whether having
part of the proceeds go to law enforcement who will be
investigating and prosecuting these crimes could lead to
an overbroad reach of what items are forfeitable in a
statute where what is used to "facilitate" the crime
could be interpreted quite broadly.
SHOULD PART OF THE FUNDS GO TO NONPROFIT ANIMAL RESCUES AND TO
LAW ENFORCEMENT WHO INVESTIGATE THESE OFFENSES?
DOES HAVING THE PROFITS OF A FORFEITURE SALE GO TO THE AGENCIES
THAT WILL ARREST AND PROSECUTE THESE OFFENSES SET UP A BOUNTY
SITUATION WHERE THE AGENCY MAY BE MOTIVATED TO DETERMINE THAT
MORE ITEMS WERE USED TO "PROMOTE, FURTHER OR FACILITATE" THE
ILLEGAL ACTIVITY?
d. Potential alternative
In the declarations and findings, this bill states:
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Dog fighters are violent criminals who engage in
a whole host of peripheral criminal activities.
Many are heavily involved in organized crime,
racketeering, drug distribution, and gang-related
criminal activity, and they arrange and attend
the fights as a forum for gambling and drug
trafficking. These activities, both individually
and collectively, present a clear and present
danger to public order and safety and are not
constitutionally protected.
This sounds like the "criminal profiteering" activity for
which forfeiture is currently provided for in Penal Code
Section 186 et seq. The procedures in this bill are taken
directly from the provisions in that chapter. Instead of
creating an additional scheme with a broader forfeiture
right but no additional protections, it makes more sense to
add felony violations of Penal Code Section 597.5 to the
list of crimes in the existing provision.
WOULD IT BE MORE APPROPRIATE TO ADD FELONY DOGFIGHTING TO THE
EXISTING FORFEITURE FOR THE CRIMINAL PROFITEERING SCHEME?
3. Legislative Findings and Declarations
This bill contains the following uncodified legislative findings
and declarations:
Dogfighting is an insidious underground organized
crime and, notwithstanding its absolute prohibition in
America, this crime has reached epidemic proportions
in all urban communities and continues to thrive in
many rural areas as well.
Many communities have been morally, socially, and
culturally scarred by the continuing presence of
dogfighting. Children who are exposed to the
unfathomable violence of dogfighting are conditioned
to believe that violence is normal and are
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systematically desensitized to the consequential
suffering.
Dog fighters are violent criminals who engage in a
whole host of peripheral criminal activities. Many
are heavily involved in organized crime, racketeering,
drug distribution, and gang-related criminal activity,
and they arrange and attend the fights as a forum for
gambling and drug trafficking. These activities, both
individually and collectively, present a clear and
present danger to public order and safety and are not
constitutionally protected.
An effective means of punishing and deterring the
criminal activities of dog fighters is through
forfeiture of the property, both personal and real,
profits, proceeds, and the instrumentalities acquired,
accumulated, or used by dogfighting participants,
organizers, transporters of animals and equipment,
property owners who allow their premises to be used
for dogfighting and other activities in support of
dogfighting, and breeders and trainers of fighting
dogs, and persons who steal and illegally obtain dogs
and other animals for fighting, including bait and
sparring animals.
Dogfighting not only encourages and furthers
antisocial values and violence but it also results in
the antisocialization of dogs thereby making them a
danger to the community at large. Police officers,
firefighters, utility, and other municipal workers are
at increasing risk in the course of their employment on
both public and private property because of the
epidemic number of dogs that have been bred and trained
to fight each other as well as other animals, small
children, and adults.
Public animal shelters, humane societies, and
nonprofit animal rescue and adoption groups that
rescue and care for animals bear much of the social,
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economic, and moral burden caused by dogfighting.
Specialized multiagency law enforcement entities such
as anticruelty task forces comprised of municipal
animal control, local police, sheriff, and city and
district attorneys investigating, arresting, and
prosecuting dogfighting and other crimes against
animals are a critical component of the goal of
reducing and eliminating this heinous crime in
California, yet these agencies suffer from limited
resources.
Forfeited property, profits, proceeds, and
instrumentalities acquired, accumulated, or used by
dogfighting participants and others acting in support
of dogfighting, should be sold to support efforts to
care for abused animals and the law enforcement
entities specially formed to address dogfighting and
animal cruelty, wherever possible. Distribution of
the above should be determined by the state or local
governing bodies, depending upon which is responsible
for the prosecution as a result of which the proceeds
were seized.
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