BILL NUMBER: AB 1117	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 27, 2011
	AMENDED IN ASSEMBLY  APRIL 6, 2011

INTRODUCED BY   Assembly Member Smyth
    (   Coauthor:   Assembly Member  
Solorio   ) 
   (   Coauthors:   Senators  
Hancock,   Lieu,   and Strickland   )


                        FEBRUARY 18, 2011

   An act to amend Section 597.1 of, to add Section 597.9 to, and to
repeal Section 597f of, the Penal Code, relating to animal abuse.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1117, as amended, Smyth. Animal abuse: penalties.
   Existing law provides that upon the conviction of a person for a
violation of a specified law regarding the failure to care for
animals, the court is authorized to make an order prohibiting the
defendant, as a condition of probation, from owning, possessing,
caring for, or having any contact with animals of any kind and to
order the convicted person to immediately deliver all animals in his
or her possession to a designated public entity, as specified.
Existing law requires the court, in the event of acquittal or final
discharge of a person arrested pursuant to these provisions, to
direct the release of the seized or impounded animals, on demand,
upon a showing of proof of ownership.
   This bill would instead require the court to make the orders above
regarding ownership and forfeiture, as specified. The bill would
require the owner to make additional showings in order for the court
to direct the release of seized or impounded animals.
   Existing law provides that the cost of seizing, caring for, and
treating any animal seized pursuant to specified provisions regarding
the failure to care for animals shall constitute a lien on the
animal and that the animal shall not be returned to its owner until
the charges are paid. Existing law provides that no animal properly
seized pursuant to these provisions shall be returned to its owner
until, in the determination of the seizing agency or hearing officer,
the animal is physically fit, or the owner can demonstrate that the
owner can and will provide the necessary care. Existing law provides
a process for a postseizure hearing, as specified, and makes the
agency, department, or society employing the person who directed the
seizure responsible for the costs incurred for caring and treating
the animal, if it is determined that the seizing officer did not have
reasonable grounds for the seizure.
   This bill would instead provide that the full cost of housing,
feeding, caring for, and treating an animal shall constitute a lien
on an animal and additionally apply these provisions to animals
seized pursuant to a search warrant, as specified.  The bill
would require that the animal not be returned to its owner until the
charges are paid if the seizure is upheld, regardless of the outcome
of any criminal, civil, or administrative proceeding or of the value
of the animal seized. The bill would provide that if the animal is
seized pursuant to a search warrant, the owner or keeper is not
entitled to a postseizure hearing.  The bill would, in the
event that the owner has satisfied the lien, provide a process for
the seizing agency or prosecuting attorney to file a petition seeking
forfeiture of any animal, as specified. In regards to seizures
determined justified by a postseizure hearing, the bill would provide
that the animal shall not be returned until the charges are paid and
the owner demonstrates that the owner can and will  present
  provide  the necessary care  for  , and
that the owner does not present a danger to  ,  the animal.
The bill would make other conforming changes and delete a duplicate
provision.
   Existing law establishes various other crimes regarding cruelty to
animals and the failure to care for animals.
   This bill would require the court, upon conviction of a person for
certain of these crimes, in addition to any other sentence or
penalty, to enter an order enjoining the person from owning,
possessing, maintaining, having custody of, residing with, or caring
for any animal within a specified period after conviction, and would
make related changes. The bill would make a violation of this order a
misdemeanor, as specified. The bill would provide that the court
may, in the interest of justice, reduce the duration of, or, in the
case of livestock owners, exempt a defendant from, these restrictions
under specified circumstances. By creating a new crime and by
increasing the duties of local humane officers, this bill would
impose a state-mandated local program.
    The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
   With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 597.1 of the Penal Code is amended to read:
   597.1.  (a) Every owner, driver, or keeper of any animal who
permits the animal to be in any building, enclosure, lane, street,
square, or lot of any city, county, city and county, or judicial
district without proper care and attention is guilty of a
misdemeanor. Any peace officer, humane society officer, or animal
control officer shall take possession of the stray or abandoned
animal and shall provide care and treatment for the animal until the
animal is deemed to be in suitable condition to be returned to the
owner. When the officer has reasonable grounds to believe that very
prompt action is required to protect the health or safety of the
animal or the health or safety of others, the officer shall
immediately seize the animal and comply with subdivision (f). In all
other cases, the officer shall comply with the provisions of
subdivision (g). The full cost of housing, feeding, caring for, and
treating any animal properly seized under this subdivision or
pursuant to a search warrant shall constitute a lien on the animal
and the animal shall not be returned to its owner until the charges
are paid, if the seizure is upheld pursuant to this section 
, regardless of the outcome of any criminal, civil, or
administrative proceeding or the value of the animal seized.
  . 
   (b) Every sick, disabled, infirm, or crippled animal, except a dog
or cat, that is abandoned in any city, county, city and county, or
judicial district may be killed by the officer if, after a reasonable
search, no owner of the animal can be found. It shall be the duty of
all peace officers, humane society officers, and animal control
officers to cause the animal to be killed or rehabilitated and placed
in a suitable home on information that the animal is stray or
abandoned. The officer may likewise take charge of any animal,
including a dog or cat, that by reason of lameness, sickness,
feebleness, or neglect, is unfit for the labor it is performing, or
that in any other manner is being cruelly treated, and provide care
and treatment for the animal until it is deemed to be in a suitable
condition to be returned to the owner. When the officer has
reasonable grounds to believe that very prompt action is required to
protect the health or safety of an animal or the health or safety of
others, the officer shall immediately seize the animal and comply
with subdivision (f). In all other cases, the officer shall comply
with subdivision (g). The full cost of housing, feeding, caring for,
and treating any animal properly seized under this subdivision or
pursuant to a search warrant shall constitute a lien on the animal
and the animal shall not be returned to its owner until the charges
are paid  , regardless of the outcome of any criminal, civil,
or administrative proceeding or the value of the animal seized.
  . 
   (c)  (1)    Any peace officer, humane society
officer, or animal control officer shall convey all injured cats and
dogs found without their owners in a public place directly to a
veterinarian known by the officer to be a veterinarian who ordinarily
treats dogs and cats for a determination of whether the animal shall
be immediately and humanely destroyed or shall be hospitalized under
proper care and given emergency treatment. 
   If 
    (2)     If  the owner does not redeem
the animal within the locally prescribed waiting period, the
veterinarian may personally perform euthanasia on the animal. If the
animal is treated and recovers from its injuries, the veterinarian
may keep the animal for purposes of adoption, provided the
responsible animal control agency has first been contacted and has
refused to take possession of the animal. 
   Whenever 
    (3)     Whenever  any animal is
transferred to a veterinarian in a clinic, such as an emergency
clinic that is not in continuous operation, the veterinarian may, in
turn, transfer the animal to an appropriate facility. 
   If 
    (4)     If  the veterinarian
determines that the animal shall be hospitalized under proper care
and given emergency treatment, the costs of any services that are
provided pending the owner's inquiry to the responsible agency,
department, or society shall be paid from the dog license fees,
fines, and fees for impounding dogs in the city, county, or city and
county in which the animal was licensed or, if the animal is
unlicensed, shall be paid by the jurisdiction in which the animal was
found, subject to the provision that this cost be repaid by the
animal's owner. The full cost of housing, feeding, caring for, and
treating any animal seized under this subdivision shall constitute a
lien on the animal and the animal shall not be returned to the owner
until the charges are paid. No veterinarian shall be criminally or
civilly liable for any decision that he or she makes or for services
that he or she provides pursuant to this subdivision.
   (d) An animal control agency that takes possession of an animal
pursuant to subdivision (c) shall keep records of the whereabouts of
the animal from the time of possession to the end of the animal's
impoundment, and those records shall be available for inspection by
the public upon request for three years after the date the animal's
impoundment ended.
   (e) Notwithstanding any other provision of this section, any peace
officer, humane society officer, or any animal control officer may,
with the approval of his or her immediate superior, humanely destroy
any stray or abandoned animal in the field in any case where the
animal is too severely injured to move or where a veterinarian is not
available and it would be more humane to euthanize the animal.
   (f) Whenever an officer authorized under this section seizes or
impounds an animal based on a reasonable belief that prompt action is
required to protect the health or safety of the animal or the health
or safety of others, the officer shall, prior to the commencement of
any criminal proceedings authorized by this section, provide the
owner or keeper of the animal, if known or ascertainable after
reasonable investigation, with the opportunity for a postseizure
hearing to determine the validity of the seizure or impoundment, or
both.  If an animal is seized pursuant to a search warrant,
the owner or keeper shall not be entitled to a postseizure hearing.
The full cost of housing, feeding, caring for, and treating any
animal seized pursuant to a search warrant shall constitute a lien on
the animal. 
   (1) The agency shall cause a notice to be affixed to a conspicuous
place where the animal was situated or personally deliver a notice
of the seizure or impoundment, or both, to the owner or keeper within
48 hours, excluding weekends and holidays. The notice shall include
all of the following:
   (A) The name, business address, and telephone number of the
officer providing the notice.
   (B) A description of the animal seized, including any
identification upon the animal.
   (C) The authority and purpose for the seizure, or impoundment,
including the time, place, and circumstances under which the animal
was seized.
   (D) A statement that, in order to receive a postseizure hearing,
the owner or person authorized to keep the animal, or his or her
agent, shall request the hearing by signing and returning an enclosed
declaration of ownership or right to keep the animal to the agency
providing the notice within 10 days, including weekends and holidays,
of the date of the notice. The declaration may be returned by
personal delivery or mail.  This statement shall not be
included in the notice if the animal is seized pursuant to a search
warrant. 
   (E) A statement that the full cost of housing, feeding, caring
for, and treating any animal properly seized under this section is a
lien on the animal and that the animal shall not be returned to the
owner until the charges are paid, and that failure to request or to
attend a scheduled hearing shall result in liability for this cost.
   (2) The postseizure hearing shall be conducted within 48 hours of
the request, excluding weekends and holidays. The seizing agency may
authorize its own officer or employee to conduct the hearing if the
hearing officer is not the same person who directed the seizure or
impoundment of the animal and is not junior in rank to that person.
The agency may utilize the services of a hearing officer from outside
the agency for the purposes of complying with this section.
   (3) Failure of the owner or keeper, or of his or her agent, to
request or to attend a scheduled hearing shall result in a forfeiture
of any right to a postseizure hearing or right to challenge his or
her liability for costs incurred.
   (4) The agency, department, or society employing the person who
directed the seizure shall be responsible for the costs incurred for
housing, feeding, caring for, and treating the animal, if it is
determined in the postseizure hearing that the seizing officer did
not have reasonable grounds to believe very prompt action, including
seizure of the animal, was required to protect the health or safety
of the animal or the health or safety of others. If it is determined
the seizure was justified, the owner or keeper shall be personally
liable to the seizing agency for the cost of the seizure and the full
cost of housing, feeding, caring for, and treating the animal. The
full cost for the housing, feeding, care, and treatment of the animal
shall be a lien on the animal and the animal shall not be returned
to its owner until the cost is paid and the owner demonstrates, to
the satisfaction of the seizing agency or the hearing officer, that
he or she can and will provide the necessary care, and that he or she
does not present a danger, to the animal.
   (g) Where the need for immediate seizure is not present and prior
to the commencement of any criminal proceedings authorized by this
section, the agency shall provide the owner or keeper of the animal,
if known or ascertainable after reasonable investigation, with the
opportunity for a hearing prior to any seizure or impoundment of the
animal. The owner shall produce the animal at the time of the hearing
unless, prior to the hearing, the owner has made arrangements with
the agency to view the animal upon request of the agency, or unless
the owner can provide verification that the animal was humanely
destroyed. Any person who willfully fails to produce the animal or
provide the verification is guilty of an infraction, punishable by a
fine of not less than two hundred fifty dollars ($250) nor more than
one thousand dollars ($1,000).
   (1) The agency shall cause a notice to be affixed to a conspicuous
place where the animal was situated or personally deliver a notice
stating the grounds for believing the animal should be seized under
subdivision (a) or (b). The notice shall include all of the
following:
   (A) The name, business address, and telephone number of the
officer providing the notice.
   (B) A description of the animal to be seized, including any
identification upon the animal.
   (C) The authority and purpose for the possible seizure or
impoundment.
   (D) A statement that, in order to receive a hearing prior to any
seizure, the owner or person authorized to keep the animal, or his or
her agent, shall request the hearing by signing and returning the
enclosed declaration of ownership or right to keep the animal to the
officer providing the notice within two days, excluding weekends and
holidays, of the date of the notice.
   (E) A statement that the cost of caring for and treating any
animal properly seized under this section is a lien on the animal,
that any animal seized shall not be returned to the owner until the
charges are paid, and that failure to request or to attend a
scheduled hearing shall result in a conclusive determination that the
animal may properly be seized and that the owner shall be liable for
the charges.
   (2) The preseizure hearing shall be conducted within 48 hours,
excluding weekends and holidays, after receipt of the request. The
seizing agency may authorize its own officer or employee to conduct
the hearing if the hearing officer is not the same person who
requests the seizure or impoundment of the animal and is not junior
in rank to that person. The agency may utilize the services of a
hearing officer from outside the agency for the purposes of complying
with this section.
   (3) Failure of the owner or keeper, or his or her agent, to
request or to attend a scheduled hearing shall result in a forfeiture
of any right to a preseizure hearing or right to challenge his or
her liability for costs incurred pursuant to this section.
   (4) The hearing officer, after the hearing, may affirm or deny the
owner's or keeper's right to custody of the animal and, if
reasonable grounds are established, may order the seizure or
impoundment of the animal for care and treatment.
   (h) If any animal is properly seized under this section or
pursuant to a search warrant, the owner or keeper shall be personally
liable to the seizing agency for the full cost of housing, feeding,
caring for, and treating the animal  , regardless of the
outcome of any criminal, civil, or administrative proceeding or the
value of the animal seized  . A statement of charges shall
be presented to the owner or keeper at the time of the postseizure
hearing. If the animal is seized pursuant to a search warrant, a
statement of charges shall be sent by certified mail or personal
delivery to the owner or keeper not later than 10 days, including
weekends and holidays, of the date of the notice provided pursuant to
paragraph (1) of subdivision (f), otherwise if no postseizure
hearing is requested, a statement of charges shall be sent by
certified mail or personal delivery to the owner or keeper upon
expiration of the time to request a hearing pursuant to subparagraph
(D) of paragraph (1) of subdivision (f) as permitted under this
 Section   section  . If the charges are
not paid within 14 days of presenting or sending the statement of
charges, or, if the owner, within 14 days of notice of availability
of the animal to be returned, fails to pay charges permitted under
this section and take possession of the animal, the animal shall be
deemed to have been abandoned and shall become the property of the
seizing agency. If the owner satisfies payment of the charges that
accrued during the first 14 days after seizure and the animal remains
impounded, the seizing agency shall continue to regularly send
statements of charges that outline all new charges that have accrued.
The time period for sending the statements shall be at the
discretion of the seizing agency, but shall not exceed 14 days from
the date the last statement is sent. Statements of charges shall
state that if the owner fails to pay the new charges within 14 days
of the date of the statement, the animal shall be deemed to have been
abandoned and shall become the property of the seizing agency.
   (i) If the animal requires veterinary care and the humane society
or public agency is not assured, within 14 days of the seizure of the
animal, that the owner will provide the necessary care, the animal
shall not be returned to its owner and shall be deemed to have been
abandoned and shall become the property of the seizing agency. A
veterinarian may humanely destroy an impounded animal without regard
to the prescribed holding period when it has been determined that the
animal has incurred severe injuries or is incurably crippled. A
veterinarian also may immediately humanely destroy an impounded
animal afflicted with a serious contagious disease unless the owner
or his or her agent immediately authorizes treatment of the animal by
a veterinarian at the expense of the owner or agent.
   (j) No animal properly seized under this section or pursuant to a
search warrant shall be returned to its owner until the owner
demonstrates to the satisfaction of the seizing agency or the hearing
officer that the owner can and will provide the necessary care, and
that the owner does not present a danger, to the animal.
   (k) (1) In the event that the owner has satisfied the lien
provided for in this section for the full cost of housing, feeding,
caring for, and  treating  treating an animal, prior
to final disposition of any criminal charges, the seizing agency or
prosecuting attorney may file a petition in the criminal action
requesting that the court issue an order forfeiting the animal to the
county or seizing agency prior to final disposition of the criminal
charge. The petitioner shall serve a true copy of the petition upon
the defendant and the prosecuting attorney.
   (2) Upon receipt of a petition, the court shall set a hearing on
the petition. The hearing shall be conducted within 14 days after the
filing of the petition, or as soon as practicable.
   (3) At the hearing, if the court finds that the petitioner has
established, by a preponderance of the evidence, that, even in the
event of acquittal,  either the owner cannot or will not
provide the necessary care for the animal in question or 
the owner will not legally be permitted to retain the animal, the
court shall order immediate forfeiture of the animal to the
petitioner.
    (  l  ) (1) Upon the conviction of a person charged with
a violation of this section, or Section 597 or 597a, all animals
lawfully seized and impounded with respect to the violation shall be
adjudged by the court to be forfeited and shall thereupon be
transferred to the impounding officer or appropriate public entity
for proper adoption or other disposition. A person convicted of a
violation of this section shall be personally liable to the seizing
agency for all costs of impoundment from the time of seizure to the
time of proper disposition. Upon conviction, the court shall order
the convicted person to make payment to the appropriate public entity
for the costs incurred in the housing, care, feeding, and treatment
of the seized or impounded animals. Each person convicted in
connection with a particular animal may be held jointly and severally
liable for restitution for that particular animal. The payment shall
be in addition to any other fine or sentence ordered by the court.
   (2)  Notwithstanding a modification   Unless
  a modification has been  granted pursuant to
subdivision (d) or (e) of Section 597.9, if probation is granted, the
court shall also order, as a condition of probation, that the
convicted person be prohibited from owning, possessing, caring for,
or residing with, animals of any kind. Regardless of whether
probation is granted, the court shall require the convicted person to
immediately deliver all animals in his or her possession to a
designated public entity for adoption or other lawful disposition or
provide proof to the court that the person no longer has possession,
care, or control of any animals. In the event of the acquittal or
final discharge without conviction of the person charged, if any of
the animals are still impounded and the animal or animals have not
previously been deemed abandoned pursuant to subdivision (h) or the
lien has been satisfied and the court has not previously ordered that
any of the animals be forfeited, the court shall, on demand, direct
the release of seized or impounded animals to the person charged upon
a showing of all of the following:
   (A) Proof of ownership.
   (B) Proof that all charges for the cost of seizure and the full
cost of housing, feeding, care, and treatment of the animals for the
entire duration of the matter have been paid.
   (C) Proof that the animals are physically fit and that the owner
has demonstrated to the seizing agency and the court that the owner
can and will provide the necessary care.
   (D) Proof that the owner can legally retain and possess all
animals in question.
   (3) Any questions regarding ownership shall be determined in a
separate hearing by the court where the criminal case was finally
adjudicated and the court shall hear testimony from any persons who
may assist the court in determining ownership of the animal. If the
owner is determined to be unknown or the owner is prohibited or
unable to retain possession of the animals for any reason, the court
shall order the animals to be released to the appropriate public
entity for adoption or other lawful disposition. This section is not
intended to cause the release of any animal, bird, reptile,
amphibian, or fish seized or impounded pursuant to any other statute,
ordinance, or municipal regulation. This section shall not prohibit
the seizure or impoundment of animals as evidence as provided for
under any other provision of law.
    (m) It shall be the duty of all peace officers, humane society
officers, and animal control officers to use all currently acceptable
methods of identification, both electronic and otherwise, to
determine the lawful owner or caretaker of any seized or impounded
animal. It shall also be their duty to make reasonable efforts to
notify the owner or caretaker of the whereabouts of the animal and
any procedures available for the lawful recovery of the animal and,
upon the owner's and caretaker's initiation of recovery procedures,
retain custody of the animal for a reasonable period of time to allow
for completion of the recovery process. Efforts to locate or contact
the owner or caretaker and communications with persons claiming to
be the owner or caretaker shall be recorded and maintained and be
made available for public inspection.
  SEC. 2.  Section 597.9 is added to the Penal Code, to read:
   597.9.  (a) Except as provided in subdivision (d) or (e), the
court shall, upon a conviction for a misdemeanor violation of
subdivision (a) or (b) of Section 597, or of Section 597a, 597b,
597h, 597j, 597s, or 597.1, in addition to any other sentence or
penalty imposed, enter an order enjoining the person from owning,
possessing, maintaining, having custody of, residing with, or caring
for any animal for a period of not less than five years.
   (b) Except as provided in subdivision (d) or (e), the court shall,
upon a conviction of a person for a felony violation of subdivision
(a) or (b) of Section 597, or of Section 597b or 597.5, in addition
to any other sentence or penalty imposed, enter an order enjoining
the person from owning, possessing, maintaining, having custody of,
residing with, or caring for any animal for a period of not less than
10 years.
   (c) Any person who is convicted of violating an order issued under
this section is guilty of a public offense, which shall be punished
by imprisonment in a county jail not exceeding one year, by a fine
not exceeding one thousand dollars ($1,000), or by both that
imprisonment and fine.
   (d) (1) In cases of owners of livestock, as defined in Section
14205 of the Food and Agricultural Code, a court may, in the interest
of justice, exempt a defendant from the injunction required under
subdivision (a) or (b), as it would apply to livestock, if the
defendant files a petition with the court and establishes, by
a preponderance of evidence,   establishing  that
the imposition of the provisions of this section would result in
substantial or undue economic hardship to the defendant's livelihood
and that the defendant has the ability to properly care for 
, and does not present a danger to, the   all 
livestock in his or her possession.
   (2) The petitioner shall serve a true copy of the petition upon
the court and the prosecuting attorney 10 calendar days prior to the
requested hearing. Upon petition from the defendant, the court shall
set a hearing on the petition. The hearing shall be conducted within
30 days after the filing of the petition. The court shall grant the
petition for exemption from subdivision (a) or (b) unless the
prosecuting attorney shows by a preponderance of the evidence that
either or both of the criteria for exemption under this subdivision
are untrue.
   (e) (1) A defendant may petition the court to reduce the duration
of the mandatory ownership prohibition. The petitioner shall serve a
true copy of the petition upon the court and the prosecuting attorney
10 calendar days prior to the requested hearing. Upon a petition
from the defendant, the court shall set a hearing on the petition.
The hearing shall be conducted within 30 days after the filing of the
petition. At the hearing, the petitioner shall have the burden of
establishing  , by a preponderance of evidence, 
 probable cause to believe  all of the following:
   (A) He or she does not present a danger to animals.
   (B) He or she has the ability to properly care for all animals in
his or her possession.
   (C) He or she has successfully completed all classes or counseling
ordered by the court.
   (2) If the petitioner has met his or her burden, the court may
reduce the mandatory ownership prohibition and may order that the
defendant comply with reasonable and unannounced inspections by
animal control agencies or law enforcement.
  SEC. 3.  Section 597f of the Penal Code is repealed.
  SEC. 4.   No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for
certain costs that may be incurred by a local agency or school
district because, in that regard, this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
   However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.