BILL NUMBER: AB 1117 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 11, 2011
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, and 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 , and would
require the order prohibiting ownership to also prohibit
the person from possessing, maintaining, having custody of, residing
with , or caring for animals of any kind .
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, 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 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 and in the interest of
justice , 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 cost of 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.
(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 cost of 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.
(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 cost of 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 dispose of 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.
(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.
(E) A statement that the cost of 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
caring 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 care of the animal,
the charges for the seizure and care of the animal shall be a lien on
the animal, and the animal shall not be returned to its owner until
the charges are paid and the seizing agency or hearing officer has
determined that the animal is physically fit or the owner
demonstrates to the seizing agency's or the hearing officer's
satisfaction that the owner can and will provide the necessary care.
(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 cost of the seizure
and care of the animal. Furthermore, if the charges for the seizure
or impoundment and any other charges permitted under this section are
not paid within 14 days of the seizure, 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 may be
disposed of by the impounding officer.
(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 may be disposed of by the impounding officer. 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, in the
determination of the seizing agency or hearing officer, the animal
is physically fit or the owner can demonstrate to the seizing agency'
s or hearing officer's satisfaction that the owner can and will
provide the necessary care.
(k) (1) If the owner has satisfied the lien provided for in this
section for the cost of caring for or 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 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, to be conducted within 14 days after the filing of the
petition, or as soon as practicable.
(3) The petitioner shall have the burden of establishing probable
cause to believe that, even in the event of acquittal, the owner
cannot and will not provide the necessary care for, or that the owner
will not legally be permitted to retain, any of the animals in
question. If the court finds probable cause exists, the court shall
order immediate forfeiture of the animal to the petitioner.
(k)
(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) If probation is granted, the court shall also order, as a
condition of probation, that the convicted person be prohibited from
owning, possessing, maintaining, having custody of, residing with, or
caring for 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 arrested person, if any of the animals are
still impounded because the animal or animals have not previously
been deemed abandoned pursuant to subdivision (h) of Section 597.1 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 upon a showing of
all of the following:
(A) Proof of ownership.
(B) Proof that all charges for the cost of seizure and care 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 or 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.
The court may also order, as a condition of probation, that the
convicted person be prohibited from owning, possessing, caring for,
or having any contact with, animals of any kind and 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 arrested
person, the court shall, on demand, direct the release of seized or
impounded animals upon a showing of proof of ownership. Any
(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.
( l )
(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 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 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
punishable by imprisonment in a county jail not exceeding one year,
or 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 to establish 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 all
livestock in his or her possession.
(2) Upon receipt of a petition from the defendant, the court shall
set a hearing to be conducted within 30 days after the filing of the
petition. The petitioner shall serve a copy of the petition upon the
prosecuting attorney 10 calendar days prior to the requested
hearing. 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 subdivision (d) are untrue.
(e) (1) A defendant may petition the court to reduce the duration
of the mandatory ownership prohibition. Upon receipt of a petition
from the defendant, the court shall set a hearing to be conducted
within 30 days after the filing of the petition. The petitioner shall
serve a copy of the petition upon the prosecuting attorney 10
calendar days prior to the requested hearing. At the hearing, the
petitioner shall have the burden of establishing 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. 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.
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.
(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.
(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.
(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.
(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.
(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.
(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.
(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. 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. 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 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, 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) 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 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 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 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.