BILL ANALYSIS Ó
AB 1117
Page 1
Date of Hearing: May 5, 2011
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1117 (Smyth) - As Amended: April 27, 2011
As Proposed to be Amended in Committee
PENDING FOUR-DAY FILE NOTICE WAIVER
SUMMARY : Makes changes to penalties in animal abuse and neglect
cases as well as in animal seizure proceedings. Specifically,
this bill :
1)Specifies that the owner of an animal seized pursuant to a
search warrant shall be liable for the costs of caring for and
treating the animal and that these costs will be a lien on the
animal which must be paid before the animal is returned.
2)Specifies that the owner of an animal seized pursuant to a
search warrant shall be liable for the costs of seizing the
animal.
3)Provides that an animal seized pursuant to a warrant shall not
be returned to the owner until it is determined that the
animal is physically fit or until it is shown that the owner
can and will provide necessary care.
4)Allows the prosecuting attorney or seizing agency 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.
5)Requires a severance hearing within 14 days of the date the
prosecutor petitions for severance or as soon as practicable.
6)Requires the court to order immediate forfeiture of an animal
during the pendency of criminal proceedings if the prosecutor
or seizing agency proves by a preponderance of the evidence
that the owner will not legally be permitted to retain any of
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the animals in question, even in the event of acquittal.
7)Requires the court to impose a condition of probation
prohibiting animal ownership, possession, and cohabitation for
a person convicted of animal cruelty and granted probation.
8)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.
9)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.
10)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.
11)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 the specified period
of the animal-ownership injunction.
12)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.
13)Allows a defendant to petition the court to reduce the
duration of the ownership prohibition if the defendant can
establish that 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.
14)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
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by animal control or law enforcement.
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.)
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
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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 :
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
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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
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
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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.
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.
4)Fourth Amendment Concerns Regarding the Animal Ban : 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.
5)Overcrowding in Jails : This bill creates a new misdemeanor
offense for a person found to be in violation of the
animal-possession injunction.
Like the state prison system, many counties are under federal
court orders to reduce the number of county jail inmates.
Over the past 30 years, the American Civil Liberties Union
(ACLU) has filed several lawsuits to force counties to reduce
the number of people incarcerated in the jail system. For
example, Los Angeles County jails are the subject of on-going
litigation, particularly the Men's Central Jail. In a
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recently release report on the status of the Men's Central
Jail, the ACLU stated that many of the on-going issues within
the Men's Central Jail are created by or exacerbated by
overcrowding. According to the ACLU, "overcrowding is in fact
a common theme behind all major problems at Men's Central
Jail, from the culture of violence to a lack of transparency,
and from poor screening and treatment for the mentally
disabled to unsanitary living conditions." (American Civil
Liberties Union, Annual Report on Conditions Inside Men's
Central Jail, 2008-2009. ()
Jail overcrowding may become an even bigger problem with the
realignment proposals. Regardless of whether realignment
takes effect, this bill may exacerbate the current
overcrowding crisis in county jails since a person who
violates an animal-ban order is subject to prosecution for a
misdemeanor, punishable by up to one year in jail.
6)Is the Animal Ban Subject to "As Applied" or 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 certain
period of time. This bill provides no exceptions for most
defendants 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.
7)Defendant's Burden of Proof for Return of Seized Animals in
the Event of Acquittal or Dismissal of Criminal Charges : If
the accused is acquitted, or criminal charges are dismissed,
and assuming the animal has not been deemed abandoned for
failure to pay costs of care, this bill allows the accused to
seek the return of his or her animals if he or she can prove
the following: (a) proof of ownership; (b) proof that the
costs of seizure and care for the animals for the entire
duration of the matter have been paid; (c) proof that the
animals are physically fit; (d) proof that the owner can and
will provide the necessary care; and (e) proof that the owner
can legally retain and possess all the animals in question.
Query whether as to the last two factors: this is an
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impossible burden because those factors require proof of a
future condition. Also, should the seizing agency be allowed
to make this determination given that it is arguably not a
neutral party or should this determination only be made by the
court?
8)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."
9)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
them with the basic care required by law. People convicted of
harming animals must be considered capable of violence towards
other animals."
10)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
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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."
11)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.
12)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
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
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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