BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 1117
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          Date of Hearing:  May 3, 2011
          Counsel:       Sandy Uribe


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                    AB 1117 (Smyth) - As Amended:  April 27, 2011


           SUMMARY  :  Makes changes to penalties in animal abuse and neglect 
          cases as well as in animal seizure proceedings.  Specifically, 
           this bill  :  

          1)States that the owner of a seized animal shall be liable not 
            only for the costs of caring for and treating the animal, but 
            also for the full cost of housing and feeding the animal, and 
            specifies these full costs will also apply to animals seized 
            pursuant to a search warrant.  

          2)Requires a person charged with abusing or neglecting an animal 
            to make an additional showing before the seized animal is 
            returned, specifically that he or she does not present a 
            danger to the animal.

          3)Allows the seizing agency to make the determination at a 
            post-seizure hearing regarding whether an animal owner has 
            demonstrated he or she can and will provide the necessary 
            care, and whether the owner presents a danger to the animal.

          4)States the process for providing the owner of a seized animal 
            a statement of charges.

          5)Gives an animal owner 14 days from the date a statement of 
            charges is presented to pay the charges in full, and further 
            requires the owner to pay subsequent charges within 14 days of 
            the date of the next statement.  If the owner fails to pay in 
            full, the animal becomes the property of the seizing agency.

          6)Allows the prosecuting attorney to file a petition for 
            severance of ownership during pendency of the criminal 
            proceedings on the grounds that the owner will not legally be 
            permitted to retain the animal even in the event of acquittal. 
             









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          7)Requires the court to order immediate forfeiture of an animal 
            during the pendency of criminal proceedings if the prosecutor 
            proves by a preponderance of the evidence that the owner will 
            not legally be permitted to retain the animal, even in the 
            event of acquittal.

          8)Creates a statutory condition of probation prohibiting animal 
            ownership for a person convicted of animal cruelty and granted 
            probation.

          9)Requires the court, regardless of the sentence imposed, to 
            order the convicted person to immediately deliver all animals 
            in his or her possession to a public entity to be put up for 
            adoption, or alternatively, to provide proof that he or she no 
            longer possesses any animal.

          10)Prohibits the court, in the event of acquittal or dismissal 
            of the case, to release any seized animals to the defendant 
            unless he or she establishes:  (a) proof of ownership, (b) 
            proof that all charges have been fully paid, (c) proof that 
            all animals are physically fit, (d) proof that the owner can 
            and will provide the necessary care, and (e) proof that all 
            the animals in question can legally be retained.  

          11)Prohibits a person conviction of misdemeanor animal cruelty 
            from owning an animal for five years, and a person conviction 
            of felony animal cruelty from owning an animal for 10 years.

          12)Makes it a misdemeanor for any person convicted of animal 
            abuse to thereafter own, possess, maintain, have custody of, 
            live with, or care for any animal within a specified period.

          13)Creates an exception for the animal-ownership injunction for 
            livestock owners who can establish that the restriction 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.

          14)Allows a defendant to petition the court to reduce the 
            duration of the ownership prohibition if the defendant can 
            establish he or she:  (a) does not present a danger to 
            animals, (b) has the ability to properly care for all animals 
            possessed, and (c) successful completion of all court-ordered 
            classes or counseling.









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          15)Gives the court discretion, in the event the length of the 
            mandatory ownership prohibition is reduced, to order that the 
            defendant comply with reasonable and unannounced inspections 
            by animal control or law enforcement.

          16)Repeals a statutory provision relating to the duties of 
            public authorities relating to abandoned or neglected animals.

           EXISTING LAW:

           1)States it is a misdemeanor punishable by a maximum of one year 
            in the county jail and a fine of not more than $20,000 to 
            maim, mutilate, torture, or wound a living animal or to 
            maliciously or intentionally kill an animal.  İPenal Code 
            Section 597(a).]

          2)States that every person having charge or custody of an animal 
            who overdrives; overloads; overworks; tortures; torments; 
            deprives of necessary sustenance, drink, or shelter; cruelly 
            beats, mutilates, or cruelly kills; or causes or procures any 
            animal to be so overdriven; overloaded; driven when 
            overloaded; overworked; tortured; tormented; deprived of 
            necessary sustenance, drink, shelter; or to be cruelly beaten, 
            mutilated, or cruelly killed is, for every such offense, 
            guilty of a crime punishable as an alternate 
            misdemeanor/felony and by a fine of not more than $20,000.   
            İPenal Code Section 597(b).]

          3)States that ever person who willfully abandons any animal is 
            guilty of a misdemeanor.  (Penal Code Section 597s.)

          4)Provides that any peace officer, humane society officer, or 
            animal control officer shall take possession of a 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 and safety of the animal or others the 
            officer shall immediately seize the animal.  İPenal Code 
            Section 597.1(a).]

          5)Provides for hearings prior to seizure of an animal in some 
            instances, and after seizure in other instances.  (Penal Code 
            Section 597.1.)









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          6)Sets forth the notice requirements and the procedure for a 
            hearing after an animal has been seized. İPenal Code Section 
            597.1(f) to (j).]

          7)States that the owner of a seized animal is liable for the 
            cost of caring and treating the animal, that these costs will 
            be considered a lien on the animal, and that the animal will 
            not be returned until the charges are paid.  İPenal Code 
            Section 597.1(a), (b), and (c).]

          8)States that if the animal owner fails to pay charges within 14 
            days, the animal is deemed abandoned and can be disposed of by 
            the impounding officer.  İPenal Code Section 597.1(h).]

          9)Imposes a duty on specified officers to take charge of an 
            abandoned or neglected animal and to convey it to a 
            veterinarian for proper care or to euthanize it, as specified. 
             (Penal Code Section 597f.)

          10)Allows the court to order a convicted defendant to repay the 
            appropriate public entity for the costs incurred in the 
            impoundment, housing, care, feeding, and treatment of the 
            animals. İPenal Code Sections 597(f)(1), 597.1(k), and 
            599aa(f).]

          11)Provides that when a defendant is convicted for a violation 
            of animal abuse, the court may also order, as a condition of 
            probation, that the person be prohibited from owning, 
            possessing, caring for, or having any contact with animals of 
            any kind and require the 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.  İPenal Code Section 597.1(k).]

          12)Allows the court to impose all reasonable conditions of 
            probation as it may determine are fitting and proper so that 
            justice may be done, society may be amended for the breach of 
            the law, for the reformation and rehabilitation of the 
            probationer.  İPenal Code Section 1203.1(j).]

           FISCAL EFFECT :   Unknown

           COMMENTS  : 









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           1)Author's Statement  :  According to the author, "Animal abuse is 
            a pervasive problem that continues to impact animals, law 
            enforcement, and animal shelters throughout the state. This 
            bill seeks to prevent future instances of animal abuse and 
            seeks to assist local animal control agencies in their efforts 
            to serve abused animals.  To meet this goal the bill outlines 
            two simple solutions to problems associated with animal abuse 
            and the restrictive nature of the hearing process associated 
            with animal abuse cases.

          "First, this bill will mandate that misdemeanor and felony 
            animal abuse convictions result in probation terms that 
            prohibit animal ownership for 5 or 10 years, respectively.  
            The increased restriction on ownership post-conviction will 
            assist in protecting animals against abuse. 

          "Second, this bill will streamline the hearing process for 
            animal abuse cases, allowing prosecuting attorneys to petition 
            to sever ownership rights to abused animals.  This will allow 
            animal control agencies or shelters to effectively serve 
            abused animals in cases where is unlikely, or not possible, 
            that the afflicted animals would be returned to their abusive 
            owner."

           2)Necessity of the Probation Condition Provision  :  A court has 
            broad discretion to prescribe conditions of probation so long 
            as the conditions serve the purpose of the probation statute.  
            İPeople v. Birkett (1999) 21 Cal.4th 226, 235.]  "A condition 
            of probation will not be held invalid unless it '(1) has no 
            relationship to the crime of which the offender was convicted, 
            (2) relates to conduct which is not in itself criminal, and 
            (3) requires or forbids conduct which is not reasonably 
            related to future criminality.' "  İPeople v. Lent (1975) 15 
            Cal.3d 481, 486.]  Although an ownership-prohibition condition 
            relates to conduct which is not criminal, when a person is 
            convicted of animal cruelty, such a condition will have a 
            relationship to the crime and will be reasonably related to 
            future criminality.  In light of this nexus and given the 
            broad discretion of the sentencing court, it is questionable 
            whether the probation condition provision is necessary.  

          Moreover, the California Supreme Court has held that a probation 
            condition requiring a defendant to notify a probation officer 
            of the presence of any pets at his or her place of residence 
            is valid even when it has no relationship to the charged crime 








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            because the probation condition is reasonably related to the 
            supervision of a defendant and hence to his or her 
            rehabilitation and potential future criminality.  İPeople v. 
            Olguin (2008) 45 Cal.4th 375, 378.]

           3)Prohibiting Pet Ownership beyond the Period of Probation or 
            Parole  :  In addition to the mandatory probation condition, 
            this bill requires a court to prohibit a person convicted of 
            misdemeanor animal abuse or neglect from owning or residing 
            with an animal for five years.  A felony conviction mandates a 
            10-year ownership or residency prohibition.  This bill also 
            creates a new misdemeanor offense for a person found to be in 
            violation of the animal-possession injunction.

          Although this provision may not create enforcement issues when 
            the person is on probation or parole, from a practical 
            standpoint it is difficult to see how this provision would be 
            enforced when the person is no longer on probation or parole.  
            This provision differs from a driver's license restriction or 
            a weapon's ban because there is no administrative agency with 
            which one has to register an animal.  Similarly, this 
            provision differs from a restraining order in that an animal 
            is not going to call law enforcement to advise that the person 
            is violating the injunction.  The only way to ensure 
            compliance with this provision is to send officers to confirm, 
            thereby diverting them from other duties.

          Although the court has discretion to reduce the duration of the 
            mandatory ownership prohibition if the defendant makes the 
            requisite showing, the court can nevertheless require the 
            person to be subject to unannounced inspections by animal 
            control or law enforcement.  Undoubtedly, a person on 
            probation or parole has a lesser expectation of privacy for 
            Fourth Amendment purposes.  İGriffin v. Wisconsin (1987) 483 
            U.S. 868, 873-874.]   However, as the ownership restriction 
            can last longer than the period of probation or parole, this 
            provision would appear to violate the Fourth Amendment since 
            the person affected may no longer be on conditional liberty 
            and because the intrusion need not even be based on 
            individualized suspicion.

           4)Is the Animal Ownership Prohibition Subject to "As Applied" 
            Overbreadth Challenges  ?  As previously note, this bill enjoins 
            convicted persons from owning, possessing, maintaining having 
            custody of, residing with, or caring for any animal for a 








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            certain period of time.  This bill provides no exceptions and 
            removes all judicial discretion.  Thus, a person convicted of 
            animal cruelty or neglect cannot reside in his or her own home 
            if another family member happens to have an animal on the 
            property.  The family may face the choice between ousting a 
            family member or giving away the family pet or livestock.  As 
            applied to some individuals, the provision will require a 
            Hobson's choice.

           5)Repeal of Penal Code Section 597f  :  Penal Code Section 597f 
            does not have a hearing provision, and to that extent has been 
            found unconstitutional.  (Carrera v. Bertaini (1976) 63 
            Cal.App.3d 721, 726-730.)  This bill repeals that section in 
            its entirety.

          6)Governor's Veto Message of Prior Similar Legislation  :  In 
            2009, Governor Schwarzenegger vetoed similar legislation 
            prohibiting animal ownership after conviction of animal abuse 
            or animal cruelty.  The Governor stated:  

          "This bill would require a judge to make an order prohibiting a 
            person convicted of specified animal-related crimes from 
            owning, possessing, or caring for any animals for a minimum 
            period of time.  This measure is unnecessary.  Judges already 
            have the discretion to enter an order forbidding persons from 
            caring for animals if it's warranted.  Making this order 
            mandatory could unjustly impact individuals who make a living 
            working with or caring for animals.  Consequently, I am unable 
            to sign this bill."

           7)Argument in Support  :  According to  The Humane Society of the 
            United States  (the sponsor of this bill), "The present animal 
            seizure system is unclear for both the accused and law 
            enforcement.  This confusion leads to higher expenses for all 
            parties and creates very serious welfare problems for the 
            animals involved.  Examples abound across California of cases 
            where seized animals were held for months and sometimes years 
            while cases are litigated.  Agencies rarely recoup the costs 
            of such holding and the animals suffer and degrade.  AB 1117's 
            provisions clarify Penal Code Secİtion] 597.1 for all 
            stakeholders and will dramatically reduce the cost of 
            enforcing California's animal laws while improving outcomes 
            for animals.  . . .

          "Animals must be protected from those who have failed to provide 








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            them with the basic care required by law.  People convicted of 
            harming animals must be considered capable of violence towards 
            other animals."  

           8)Argument in Opposition  :  According to the  California Judges 
            Association  , "Upon a conviction for animal abuse, the court is 
            currently authorized to enjoin the defendant from owning, 
            possessing, or having contact with animals of any kind.  This 
            bill would remove the court's discretion and  require  it to 
            enter such an enjoining order.

          "An enjoining order would probably be appropriate in most cases 
            of animal abuse, but exceptional cases can arise.  The bill 
            tries to anticipate such exceptions, notably in cases where a 
            defendant would suffer substantial hardship were her livestock 
            confiscated (see proposed Penal Code section 597.9(d)), but 
            there might still be other limited set of codified exceptions. 
             For example, under AB 1117, if a blind defendant were 
            convicted under an animal abuse statute for starving her 
            parakeet to death, the court would have no choice but to order 
            the defendant to give up her seeing-eye dog.  Courts need 
            flexibility to make orders appropriate to the case at hand.  
            By taking away a court's discretion to do so, AB 1117 goes too 
            far."

           9)Related Legislation  :  

             a)   SB 917 (Lieu) increases the penalty for overloading, 
               torturing, tormenting, et cetera, an animal from up to six 
               months to up to one year.  SB 917 is pending hearing by the 
               Senate Appropriations Committee.

             b)   SB 248 (Wyland) would have required persons convicted of 
               misdemeanor animal cruelty to provide DNA samples.  SB 248 
               failed passage in Senate Public Safety Committee.

           10)Prior Legislation  :  AB 243 (Nava), of the 2009-10 Legislative 
            Session, sought to establish a period prohibiting animal 
            ownership after a misdemeanor or felony conviction of animal 
            abuse.  AB 243 was vetoed.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           








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          Humane Society of the United States (Sponsor)
          State Humane Association of California (Co-Sponsor)
          Society for the Prevention of Cruelty to Animals Los Angeles 
          (Co-Sponsor)
          American Society for the Prevention of Cruelty to Animals
          Animal Issues Movement
          Animal Place
          Butte County Public Health
          California District Attorneys Association
          City of Rancho Cucamonga
          Haven Humane Society
          Humane Society of the North Bay Animal Services Division
          Lake Tahoe Humane Society
          Public Interest Coalition
          Shasta County District Attorney
          Santa Cruz SPCA
          SPCA for Monterey County

           Opposition 
           
          Agricultural Council of California 
          Alliance of Western Milk Producers
          American Civil Liberties Union
          American Herd Breeding Association
          Association of California Egg Farmers
          California Attorneys for Criminal Justice
          California Grain and Feed Association
          California Judges Association
          California Responsible Pet Owners Coalition
          International Cat Association, Inc.
          Western United Dairymen
           

          Analysis Prepared by :    Sandy Uribe / PUB. S. / (916) 319-3744