BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                S
                             2009-2010 Regular Session               B

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          SB 318 (Calderon)                                           
          As Introduced February 25, 2009 
          Hearing date:  April 28, 2009
          Penal Code  
           MK:mc                     VOTE ONLY  

                                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; California  
                   Narcotic Officers Association; California Police Chiefs  
                   Association; California Peace Officers' Association; 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?





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          SHOULD THE LAW PROVIDE FOR THE FORFEITURE OF PROPERTY USED TO  
          PROMOTE, FURTHER OR FACILITATE DOGFIGHTING?

          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  




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          by both such fine and imprisonment if, as a result of the human  
          being on two separate occasions or on one occasion causing  
          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  




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          under his or her charge or control; and any person who aids,  
          abets, is guilty of a misdemeanor punishable by up to one year  
          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).)





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           Existing law  provides that an officer making an arrest at an  
          animal fight may take possession of all birds or animals and all  
          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  




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          conviction, all property seized shall be adjudged by the court  
          to be forfeited and shall then be destroyed or otherwise  
          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  




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          forfeitable under this bill.

           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.





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           This bill  provides that if at the end of the time set forth, an  
          interested person, other than the defendant has not filed a  
          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  




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               properties so that such property may be  
               maintained and preserved.

           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.




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           This bill  provides the appraised value shall be determined as of  
          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  




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               an escrow account or restricted fund to be  
               distributed to the nonprofit entities as soon as  
               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  




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               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, 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  




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               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.

                 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:
          ---------------------------
          <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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               No party contests that California's prisons are  
               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  




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               necessary to correct the violation of constitutional  
               rights, and be the least intrusive means necessary to  
               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,  
              -----------------------
          <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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              racketeering and drug trafficking.  These activities  
              present a clear and present danger to public order and  
              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  




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          financial gain or advantage which act or threat may be charged  
          as a crime under specified enumerated felony sections.  (Penal  
          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?




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               b.     Property used to promote, further or facilitate

               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.




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                   We urge the author to explore more  
                   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  




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               forfeiture money go to the nonprofits will assist in  
               their burden of rescue and caring for the animals.  A  
               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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