BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                   SB 318|
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                                 THIRD READING


          Bill No:  SB 318
          Author:   Calderon (D)
          Amended:  5/28/09
          Vote:     21

           
           SENATE PUBLIC SAFETY COMMITTEE  :  7-0, 4/21/09
          AYES:  Leno, Benoit, Cedillo, Hancock, Huff, Steinberg,  
            Wright

           SENATE APPROPRIATIONS COMMITTEE  :  13-0, 5/26/09
          AYES:  Kehoe, Cox, Corbett, Denham, DeSaulnier, Hancock,  
            Leno, Oropeza, Runner, Walters, Wolk, Wyland, Yee


           SUBJECT  :    Dogfighting forfeitures

           SOURCE  :     Humane Society of the United States
                      The American SPCA
                      California State Sheriffs Association

           DIGEST  :    This bill provides for the forfeiture of any  
          property interest that was either acquired through the  
          commission of dogfighting, or used to promote, further or  
          facilitate dogfighting.

           ANALYSIS  :    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  
                                                           CONTINUED





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          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 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.  







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           (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 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  







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          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 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:

          1.Owns, possesses, keeps, or trains any dog, with the  
            intent that the dog shall be engaged in an exhibition of  
            fighting with another dog.

          2.For amusement or gain, causes any dog to fight with  
            another dog, or causes any dogs to injure each other.

          3.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  







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          (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 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 the prosecuting agency in a  
          criminal proceeding in which the defendant has been charged  
          with the commission of any of the crimes listed in  
          subdivision (a) of Section 597.5 may, in conjunction with  
          the criminal proceeding, file a petition for forfeiture.   
          If the prosecuting agency has filed a petition for  
          forfeiture, and the defendant 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  
          shall be subject to forfeiture, including both personal and  
          real property profits, proceeds, and the instrumentalities  
          acquired, accumulated, or used by dogfighting participants,  
          organizers, transporters of animals and equipment, and  
          breeders and trainers of fighting dogs, and persons who  
          steal or 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:

          1.Property solely owned by a bona fide purchaser for value,  
            who was without knowledge that the property was intended  







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            to be used for a purpose which would subject it to  
            forfeiture under this section, or is subject to  
            forfeiture under this section.

          2.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.

          This bill provides if the prosecuting agency proceeds that  
          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  







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          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 claim, the court, upon a motion, shall declare  
          that the person has defaulted upon his or her alleged  
          interest, and that interest 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.








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          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:

          1.An injunction to restrain all interested parties and  
            enjoin them from transferring, encumbering,  
            hypothecating, or otherwise disposing of property.

          2.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.

          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  







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          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 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:

          1.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.

          2.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.

          3.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.







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          4.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 possible.

          This bill makes the following codified findings and  
          declarations:

          1.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.

          2.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.

          3.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.

          4.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.







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          5.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.

          6.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.

          7.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.

          8.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.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  Yes







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          According to the Senate Appropriations Committee:

                          Fiscal Impact (in thousands)

           Major Provisions                2009-10     2010-11     
           2011-12   Fund  
          State Mandated Local Program     unknown,  
          potentiallyGeneral
          District Attorneys           significant costs

          Mandatory court actions                                
          unknown, potentially                         General
                                        significant costs

           SUPPORT  :   (Verified  5/27/09)

          Humane Society of the United States (co-source) 
          The American SPCA (co-source) 
          California State Sheriffs' Association (co-source) 
          California Narcotic Officers Association
          California Peace Officers' Association
          California Police Chiefs Association
          Friends of Auburn/Tahoe Vista Placer County Animal Shelter
          Humane Society Veterinary Medical Association
          Los Angeles County District Attorney's Office


           ARGUMENTS IN SUPPORT  :    According to the author's office:

               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 safety and are not  







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               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.


          RJG:nl  5/28/09   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

                                ****  END  ****