BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair S 2009-2010 Regular Session B 1 2 7 SB 1277 (Florez) 7 As Amended April 13, 2010 Hearing date: April 20, 2010 Education Code MK:dl ANIMAL ABUSE REGISTRY: INTERNET PUBLICATION HISTORY Source: Animal Legal Defense Fund; Social Compassion in Legislation Prior Legislation: Not applicable Support: Born Free USA; In Defense of Animals; League of Human Voters California Chapter; Fix Nation; Ashley & Hobie Animal Welfare, Inc.; Compassion for Animals; ACI-Animal Cruelty Investigations; Take Me Home; YogaFit; Friends of Auburn/Tahoe Vista Placer County Animal Shelter; the STAND Foundation; Central Coast Border Collie Rescue; KM Veterinary Services Opposition:California Law Enforcement Association of Records Supervisors; ACLU; Irish Terrier Club; Pet Food Institute; California Federation of Dog Clubs; Irish Wolfhound Club of America, Inc.; California Retailer Association; California Manufacturers And Technology Association; California Grocers Association; California (More) SB 1277 (Florez) PageB Independent Grocers Association; Sacramento Council of Dog Clubs, Inc.; Sacramento Sierra Norwegian Elkhound Club, Inc.; PetPAC; Pet Industry Joint Advisory Council; Bull Terrier Club of America; California Outdoor Heritage Alliance; American Dog Breeders Association, Inc.; California Outdoor Heritage Alliance; California Grain & Feed Association; California Seed Association; Pacific Egg & Poultry Association; California Bean Shippers Association; California Association of Wheat Growers; Pacific Coast Renderers Association; California Pear Growers Association; California Farm Bureau Federation; California Warehouse Association; California State Floral Association; Grocery Manufacturers of America; The English Shepherd Club; California Responsible Pet Owners Coalition; Taxpayers for Improving Public Safety; San Lorenzo Dog Training Club, Inc.; Feline Friends International; The Pet Care Foundation; United Schutzhund Clubs of America; Concerned Dog Owners of America; a number of individuals KEY ISSUES SHOULD A REGISTRY BE CREATED IN THE DEPARTMENT OF JUSTICE (DOJ) FOR PERSONS CONVICTED OF SPECIFIED FELONY ANIMAL ABUSE OFFENSES? SHOULD THE INFORMATION ON THE REGISTRY BE AVAILABLE ON THE INTERNET? SHOULD THE REGISTERY BE PAID FOR BY INCREASED PENALTIES ON SPECIFIED MISDEMEANOR AND FELONY ANIMAL ABUSE OFFENSES? PURPOSE The purpose of this bill is to have the DOJ create a registry for people convicted of specified animal abuse offenses. (More) SB 1277 (Florez) PageC Existing law states, except as otherwise provided, every person who maliciously and intentionally maims, mutilates, tortures or wounds a living animal, or maliciously and intentionally kills an animal, is guilty of an offense punishable as a wobbler (Penal Code 597(a)) Existing law states that any person who overdrives, overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, drink or shelter, any animal, and whoever, having the charge or custody of the animal either as owner or otherwise, subjects any animal to needless suffering, or inflicts unnecessary cruelty upon the animal, or in any manner abuses the animal or uses the animal when unfit for labor is, for every such offense, guilty of a wobbler. (Penal Code 597 (b).) Existing law states every person who maliciously and intentionally maims, mutilates, or tortures any mammal, bird, reptile, amphibian or fish is guilty of a wobbler. (Penal Code 597 (c)) Existing law provides that any person who causes any animal, not including a dog, to fight with another animal, or permits the same to be done on any property under his or her control, or aids or abets the fighting of any animal is guilty of a misdemeanor, (Penal Code 597b(a).) Existing law provides that any person who causes a cock to fight with another cock, or permits the same to be done on any property under his or her control, and any person who aid or abets the fighting of any cock or is present as a spectator is guilty of a misdemeanor, (Penal Code 597b(b).) Existing law provides that a second or subsequent offense of Penal Code Section 975b is a wobbler. Existing law provides that any person that does any of the following is guilty of a felony: Owns, possesses, keeps, or trains any dog, with the (More) SB 1277 (Florez) PageD 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 any of the above acts to be done on any premises (Penal Code 597.5(a).) Existing law states that any person that 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 exhibition, fighting or injuring with the intent to be present at the exhibition, fighting, or injuring is guilty of a misdemeanor. (Penal Code 597.5 (b).) Existing law provides that any person who willfully and maliciously and with no legal justification strikes, beats, kicks, cuts, stabs, shoots with a firearm, administers any poison or other harmful or stupefying substance to, or throws, hurls, or projects at, or places any rock, object, or other substance which is used in such a manner as to be capable of producing injury and likely to produce injury on or in the path of any horse being used by, or any dog under supervision of, any peace officer is guilty of a misdemeanor if injury is inflicted and a felony if serious injury is inflicted. (Penal Code 600 (a).) Existing law provides that any person who willfully and maliciously and with no legal justification interferes with or obstructs any horse or dog being used by any peace officer in the discharge or attempted discharge of his or her duties by frightening, teasing, agitating, harassing, or hindering the horse or dog is guilty of a misdemeanor. (Penal Code 600(b).) Existing law provides that any person who with the intent to inflict such injury or death, personally causes the death, destruction, or serious physical injury the dog or horse shall upon conviction of a felony also have an additional enhancement of one year. (Penal Code 600(c).) (More) SB 1277 (Florez) PageE Existing law provides that if a person while in violation Penal Code Section 600 causes great bodily injury to a person they are subject to a two year enhancement. (Penal Code 600(d).) This bill provides that every person over 18 years of age residing in or while located in California who has been convicted of animal abuse shall be required to register for ten years within 10 days of coming into this state or changing his or her residence or location within the state as follows: Register with the chief of police of the city where the person is residing, or if the person has no residence where the person is located; Register with the sheriff of the county where the person is residing, or if the person has no residence, where the person is located in an unincorporated area or city that has no police department. In addition to the above, register with the chief of police of a campus of the University of California, the California State University of the California Community Colleges where the person is residing, or if the person has no residence, where the person is located upon the campus or any of its facilities. This bill defines "animal abuse" as a felony conviction of Penal Code sections 597, 597b, 597.5, or 600, or a felony conviction for an attempt to commit one of those offenses, or a felony conviction for a comparable offense in another state. This bill provides that any person required to register who is discharged or paroled from a jail, prison, school, road, camp or other penal institution or from the Division of Juvenile Justice where he or she was confined because of the commission of animal abuse, shall, prior to the discharge, parole, or release, be informed of his or her duty to register under this section by the official in charge of the place of confinement. The place from which he or she is being released shall have him or her sign a copy of a DOJ form explaining the duty to register and obtain the address where he or she plans to live. The place of confinement shall notify the Department of Justice (DOJ) of the address along with a copy of the form and send a copy of the (More) SB 1277 (Florez) PageF form within 45 days to the appropriate law enforcement agency. All forms shall be transmitted so they can be received by local law enforcement agency 30 days prior to the discharge, parole or release of the person. This bill provides that the registration should be for a period of ten years. This bill provides that any person who is required to register who is released on probation or discharged upon payment of a fine shall, prior to the release or discharge, be informed of his or her duty to register by the probation department of the county in which he or she has been convicted. The probation officer shall have the person sign the DOJ form and obtain the address where he or she will reside and forward both to the DOJ within three days. This bill provides that the registration shall consist of all the following information: A statement of in writing signed by the person giving all of the following information: o Date of birth. o The current address or location of the person. o Name and address of the employer. o Animal abuse offense for which the person was convicted. o The date and place of the animal abuse offense conviction of the person. o Any other information as may be required by the Department of Justice. The complete set of fingerprints and a photograph of the person A description of any tattoos, scars, or other distinguishing features on the person's body that would assist in identifying the person. This bill provides that within three days after registration, the registering law enforcement agency shall electronically forward the statement, fingerprints, and photograph to the Department of Justice. (More) SB 1277 (Florez) PageG This bill provides that if any person required to register changes his or her residence address, he or she shall inform, in writing within 10 days, the law enforcement agency with home he or she last registered of his or her new address. The law enforcement agency shall, within three days after receipt of the information electronically forward it to the DOJ. The DOJ shall forward appropriate registration data to the law enforcement agency having local jurisdiction of the new place of residence. This bill provides that any person required to register who violates any of the provisions is guilty of a misdemeanor. This bill provides that any person who has been convicted of animal abuses who is required to register who willfully violates any of the provisions is guilty of a misdemeanor and shall be sentenced to serve a term of no less than 90 days nor more than one year in county jail. In no event does the court have the power to absolve a person who willfully violates this section from the obligation of spending at least 90 days of confinement in a county and jail and completing probation of at least one year. This bill provides that whenever a person is released on parole or probation is required to register under this section but fails to do so within the time prescribed, the Board of Parole Hearings or the court shall order the parole or probation of that person revoked. This bill provides that certain information required by this section shall be open to inspection by the public through the use of the Internet Web site maintained by the DOJ or by telephone or upon written request where practicable. This bill provides that in any case in which a person who would be required to register is to be temporarily sent outside the institution where he or she is confined on any assignment within the city or county, the local law enforcement agency having jurisdiction over the place where that assignment shall occur shall be notified within a reasonable time prior to removal from (More) SB 1277 (Florez) PageH the institution. This bill provides that a person can be released from a duty to register if he or she obtains a certificate of rehabilitation and that person shall be removed from the website. This bill provides that on or before January 1, 2012 DOJ shall make available to the public via a website information concerning persons required to register for abuse of an animal. The website shall include the following information: The person's name, and known aliases. The persons photograph. A physical description including gender and race. Date of birth. Criminal history. Address. The year of conviction of his or her most recent offense animal abuse offense requiring registration. The year he or she was released from incarceration for that offense. Whether he or she was subsequently incarcerated for any other felony, if that fact is reported to the department. Year of conviction shall only be included if the DOJ can also include year of release from incarceration. This bill provides that the name and address of the person's employer and criminal history other than the animal abuse shall not be listed on the website. This bill provides that the website shall be translated into other languages. This bill provides that any state facility that releases from incarceration a person who is required to register shall submit to within 30 days of release, the release date to DOJ whether it was for the registerable offense or for a subsequent felony. This bill provides that the DOJ shall make a reasonable effort to provide notification to persons who have been convicted of the commission of an offense specified that on or before January (More) SB 1277 (Florez) PageI 1, 2012 that DOJ is required to make information about offenders available to the public via the website. This bill provides that a designated law enforcement entity may make available information concerning persons who are required to register via a website if it determines that the public disclosure of the information about a specific offender by way of the entity's website is necessary to ensure the public safety based upon information available to the entity concerning that specific offender. This bill provides that DOJ shall also make information that is available on the website also available by telephone and upon written request. This bill provides that any person who uses information disclosed pursuant to the website to commit a misdemeanor shall be subject in addition to any other penalty or fine imposed, a fine of not less than $10,000 and not more than $50,000. This bill provides that any person who uses information disclosed pursuant to this section to commit a felony shall be punished, addition and consecutive to any other punishment, by a five-year term of imprisonment in state prison. This bill provides that any person who is required to register who enters a website established pursuant to this section shall be punished by a fine not exceeding $1,000 and/or imprisonment for up to 6 months. This bill provides that a person is authorized to use the information disclosed only to protect and animal at risk. This bill provides that except as authorized use of any information that is disclosed for purposes relating to any of the following is prohibited: Health Insurance. Insurance. Loans. Credit. (More) SB 1277 (Florez) PageJ Employment. Education, scholarships, or fellowships. Housing or accommodations. Benefits, privileges, or services provided by any business establishment. This bill provides that any use of information disclosed for purposes other than those permitted shall make the user liable fro the actual damages, and any amount that may be determined by a jury or a court sitting without a jury, not exceeding three times the amount of actual damage, and not less than $250, and attorney's fees, exemplary damages, or a civil penalty not exceeding $25,000. This bill provides that whenever there is reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of misuse of any information available via website, the Attorney General, any district attorney, or city attorney, or any person aggrieved by the misuse is authorized to bring a civil action in the appropriate court requesting preventative relief, including an application for a permanent or temporary injunction, restraining order, or other order against the person or group of persons responsible for the pattern or practice of misuse is authorized to bring a civil action in the appropriate court requesting preventative relief, including an application for a permanent or temporary injunction, restraining order, or other order against the person or group of persons responsible for the pattern and practice of misuse. This bill provides that the public notification provisions of this section are applicable to every person described without regard to when his or her crimes were committed or his or her duty to register arose, and to every offense described regardless of when it was committed. This bill provides that a designated law enforcement entity and its employees shall be immune from liability for good faith conduct. This bill provides that the Attorney General, in collaboration (More) SB 1277 (Florez) PageK with local law enforcement and others knowledgeable about animal abuse offenders, shall develop strategies to assist members of the public in understanding and using publicly available information about registered animal abuse offenders to further public safety. This bill provides that any person convicted of Penal Code Sections 597, 597b, 597.5, or 600 shall in addition to any other penalty or fine imposed, be subject to a fine of $200 for each misdemeanor conviction and a fine of $500 for each felony conviction. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS The severe prison overcrowding problem California has experienced for the last several years has not been solved. In December of 2006 plaintiffs in two federal lawsuits against the Department of Corrections and Rehabilitation sought a court-ordered limit on the prison population pursuant to the federal Prison Litigation Reform Act. On January 12, 2010, a federal three-judge panel issued an order requiring the state to reduce its inmate population to 137.5 percent of design capacity -- a reduction of roughly 40,000 inmates -- within two years. In a prior, related 184-page Opinion and Order dated August 4, 2009, that court stated in part: "California's correctional system is in a tailspin," the state's independent oversight agency has reported. . . . (Jan. 2007 Little Hoover Commission Report, "Solving California's Corrections Crisis: Time Is Running Out"). Tough-on-crime politics have increased the population of California's prisons dramatically while making necessary reforms impossible. . . . As a result, the state's prisons have become places "of extreme peril to the safety of persons" they house, . . . (Governor Schwarzenegger's Oct. 4, 2006 Prison Overcrowding State of Emergency Declaration), while contributing little to the safety of California's (More) SB 1277 (Florez) PageL residents, . . . . California "spends more on corrections than most countries in the world," but the state "reaps fewer public safety benefits." . . . . Although California's existing prison system serves neither the public nor the inmates well, the state has for years been unable or unwilling to implement the reforms necessary to reverse its continuing deterioration. (Some citations omitted.) . . . The massive 750% increase in the California prison population since the mid-1970s is the result of political decisions made over three decades, including the shift to inflexible determinate sentencing and the passage of harsh mandatory minimum and three-strikes laws, as well as the state's counterproductive parole system. Unfortunately, as California's prison population has grown, California's political decision-makers have failed to provide the resources and facilities required to meet the additional need for space and for other necessities of prison existence. Likewise, although state-appointed experts have repeatedly provided numerous methods by which the state could safely reduce its prison population, their recommendations have been ignored, underfunded, or postponed indefinitely. The convergence of tough-on-crime policies and an unwillingness to expend the necessary funds to support the population growth has brought California's prisons to the breaking point. The state of emergency declared by Governor Schwarzenegger almost three years ago continues to this day, California's prisons remain severely overcrowded, and inmates in the California prison system continue to languish without constitutionally (More) SB 1277 (Florez) PageM adequate medical and mental health care.<1> The court stayed implementation of its January 12, 2010 ruling pending the state's appeal of the decision to the U.S. Supreme Court. That appeal, and the final outcome of this litigation, is not anticipated until later this year or 2011. This bill does appear to aggravate the prison overcrowding crisis described above. COMMENTS 1. Need for This Bill According to the author: Our communities have good reason to be concerned about the whereabouts of animal abusers, including the high rate of recidivism among animal hoarders, the various dangers to a community that are associated with animal fighting, and the well-established link between violence towards animals and violence towards humans. Mandatory registration for convicted animal abusers would aid dramatically in keeping offenders away from potential new victims by alerting law enforcement and the public to their whereabouts, and by allowing animal shelters to thoroughly screen potential adopters for criminal offenders. Problems posed by repeat offenders: Animal hoarders, who are frequently responsible for causing hundreds of animals to suffer ----------------------- <1> Three Judge Court Opinion and Order, 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 (August 4, 2009). (More) SB 1277 (Florez) PageN for many years, exhibit recidivism rates of nearly 100%. Decades ago, the FBI recognized that many serial killers started out abusing and killing animals as children. Serial killers from the Boston Strangler to Jeffrey Dahmer started out by torturing animals. Ongoing animal abuse and even torture are often the terrifying reality in homes plagued by domestic violence. Criminals convicted of involvement in dogfighting and cockfighting are usually involved in other dangerous criminal activity, like drugs and gambling, in their communities, and they will often go on to abuse more animals in fighting rings following convictions. There is a high correlation between sexual abuse of animals and sexual abuse of children. A 2002 study found that 96% of juveniles who had sexually abused animals also admitted to sex offenses against humans. 2. Registry for Animal Abusers This bill creates within the Department of Justice (DOJ) a public registry for people convicted of specified felony animal abuse crimes. The crimes for which a person will be required to register are killing, maiming or abusing animals; worrying or causing an animal to fight; dog fighting and harming, interfering with or obstructing a police horse or dog. A person must register with local law enforcement within 10 days of moving into or within the state for a period of 10 years. The bill requires the DOJ to make the registry information available on a website as well as by phone and upon written request and prohibits misuse. The bill sets up procedures for the place of incarceration or the probation officer to notify the person of their duty to register upon release. Failure to comply with the registration requirements is a misdemeanor with a mandatory jail sentence. 3. Reason for Registry (More) SB 1277 (Florez) PageO According to the Animal Legal Defense Fund one of the sponsors, this is an "essential crime-reducing and cost savings tool for California." They assert that this bill will, among other things: Help reduce the risk of new animal victims at the hands of repeat offenders. And owing to the strong coalition between those who abuse animals and those who are violent toward humans, it will help reduce the risk of human victims as well. Provide shelters and humane societies with a new method to screen potential adoptees of homeless animals, ensuring convicted abusers are not able to easily gain access to new would be victims. Save California counties, cities and towns money by helping to reduce the number of repeat offenders by animal abusers. A single case involving the care and rehabilitation of abused animals can easily cost a municipality tens of thousands of dollars. Opponents ask whether registries really have an impact on stopping crimes or whether they are more of a research tool for law enforcement after a crime has been committed. A public registry seems unnecessary as a law enforcement tool and perhaps there is a more appropriate way to help law enforcement use the information they already have access to? DO REGISTRIES WORK TO STOP CRIME? 4. Retroactive but a Ten Year Limitation This bill has language that will make it retroactive by providing that the public notification provision are applicable to every person without regard to when his or her crimes were committed or his or her duty to register arose and to every offense, regardless of when it was committed. However, as amended it now limits the registration to ten years. Ten years from when? When the person was convicted? Released? What happens to a person whose crime is more than ten years old, would they now have to register for ten years or are they (More) SB 1277 (Florez) PageP exempt? Amendments should be taken to clarify the author's intent. WHEN DOES THE 10 YEAR REGISTRATION REQUIREMENT COMMENCE? 5. Existing National Pet Abuse Registry Many opponents point to the fact that a national pet registry on people convicted of animal abuse exists at www.pet-abuse.com . That website has a publicly accessible data base listing people convicted of abuse by country, state, type of animal, type of abuse and another of other factors. It also shows cases in which there were just allegations, cases that were not charged, acquittals and civil cases. The convictions listed for California date back to the early 1990s. It appears that if users set up a login they can get additional information about abuse cases. The opponents argue that this existing database, which costs California nothing, could serve the purpose of helping humane societies and others screen potential adopters for animal abuse. While a name based system is not the most accurate way to tell whether or not a person is the person who has been convicted of the crime, there is some other general information, it goes back more than ten years and does not rely on a person complying with the registration requirement. DO HUMANE AGENCIES CURRENTLY USE THE EXISTING NATIONAL PET ABUSE REGISTRY? IS THE EXISTING REGISTRY SUFFICIENT FOR THE PURPOSES OF THIS BILL? 6. Funding by additional fine This bill places an additional fine of $200 on each misdemeanor conviction and $500 on each felony conviction for the crimes for which a person must register under this bill. The additional money shall first to the DOJ for the creating, administering and updating of the website and the rest may go to local spay and neuter programs. (More) SB 1277 (Florez) PageQ Existing fines for the relevant code sections are as follows: (More) Penal Code Section 597, killing, maiming or abusing animals can be a felony or a misdemeanor with fines up to $20,000 for either. Penalty assessments are approximately 280% so the actual amount a person must pay is up to $76,000.<2> In addition the person is liable to the impounding agency for costs from the time of impound until the animal is seized upon conviction. If the person is granted probation he or she must also attend and pay for counseling. Penal Code Section 597b-animal fights and worrying animals-has a fine up to $5,000, $19,000 with penalty assessments, if the person is convicted of a misdemeanor. A second or subsequent conviction is a wobbler and the fine can be up to $25,000, $95,000 including penalty assessments. Penal Code Section 597.5 dog fighting has a fine up to $50,000, $190,000 with penalty assessment for the felony and $5,000, $19,000 with penalty assessments, for the misdemeanor spectator provision. Specified property associated with the dog fighting incident may also be forfeited Penal Code Section .600 harming, interfering with or obstructing a peace officer's horse or dog when a felony has a $2,000 fine, $7,600 with penalty assessments, and $1,000, $3,800 with penalty assessments, when a misdemeanor. In addition to the above fines there are always court costs, probation costs and restitution. --------------------------- <2> Until the budget year 2002-2003, there was 170% in penalty assessments applied to every fine, the current penalty assessments are approximately 270%. (See Penal Code 1464; Penal Code 1465.7; Penal Code 1465.8 Government Code 70372; Government Code 7600.5 Government Code 76000 et seq; Government Code 76104.6) (More) SB 1277 (Florez) PageS The fines in this bill do not appear to be on top of the base fine but are intended to be an additional fee, thus the penalty assessments would likely not be added to these fines. In general, criminal fines are often hard to collect and have not been found to be a reliable source of funding. These offenses have very high fines under existing law. Are the fees in this bill intended to take a priority over these fines? Over restitution? A defendant, especially one who goes to jail or prison or who loses property in forfeiture has a limited amount of money they will be able to pay in a fine. Will the imposition of these funds mean that the base fine and thus penalty assessments will be lowered to take into consideration the appropriate amount the court thinks the defendant should or can pay? If the base fine and thus penalty assessments are lowered, those that currently rely on funding from these sources will get less, is this appropriate? Will enough of the additional fines in this bill ever be collected to fund this new registry at the DOJ? WITH THE EXISTING HIGH FINES FOR THESE CODE SECTIONS, WILL THE ADDITIONAL FINES IN THIS BILL EVER REALLY FUND THIS REGISTRY? 7. ROCA issues This bill contains the following provisions that violate this Committee's ROCA policy: This bill provides that a person who is on parole who fails to register, shall have their parole revoked, thereby adding to the prison overcrowding crisis. (Page 6, lines 28-32) This bill provides that any person who uses information disclosed in the pet registry to commit a felony shall be sentenced to an additional consecutive five years in prison. (Page 9, lines 24-27) *************** SB 1277 (Florez) PageT