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
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