BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 318| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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 SB 318 Page 2 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. SB 318 Page 3 (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 SB 318 Page 4 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 SB 318 Page 5 (b).) Existing law provides that any officer making an arrest under specified animal protection statute may lawfully take possession of all birds or animals and all paraphernalia, implements or other property or things used or employed or about to be employed in the violation of any of the provisions of this code relating to the fighting of birds or animals that can be used in animal or bird fighting, in training animals or birds to fight, or to inflict pain or cruelty upon animals or birds in respect to animal or bird fighting and sets forth the care of the animals and paraphernalia seized. Upon conviction, all property seized shall be adjudged by the court to be forfeited and shall then be destroyed or otherwise 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 SB 318 Page 6 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 SB 318 Page 7 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. SB 318 Page 8 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 SB 318 Page 9 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. SB 318 Page 10 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. SB 318 Page 11 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 SB 318 Page 12 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 SB 318 Page 13 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 ****