BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2011-2012 Regular Session B 1 1 1 AB 1117 (Smyth) 7 As Amended June 20, 2011 Hearing date: June 28, 2011 Penal Code MK:mc ANIMAL ABUSE: PENALTIES HISTORY Source: The Humane Society of the United States; spcaLA Prior Legislation: AB 243 (Nava) - vetoed, 2009 Support: American Society for the Prevention of Cruelty to Animals; State Humane Association of California; California District Attorneys Association; Los Angeles District Attorneys Association; Shasta County District Attorney; Butte County Public Health Department, Animal Control Division; City of Rancho Cucamonga; California Animal Control Directors Association; United Animal Nations; The SPCA for Monterey County; Lake Tahoe Humane Society; Animal Samaritans SPCA; Santa Cruz SPCA; Animal Issues Movement; Haven Humane Society; The Humane Society of the North Bay Animal Services Division; Animal Place; Paw PAC Opposition:Agricultural Council of California; Alliance of Western Milk Producers; Association of California Egg Farmers; California Grain and Feed Association; California Horse Council; Charros Foundation, USA; Professional Rodeo Cowboys Association; Western United Dairymen (More) AB 1117 (Smyth) Page 2 Assembly Floor Vote: Ayes 71 - Noes 0 KEY ISSUE SHOULD THE LAW PROVIDE THAT WHEN A PERSON IS CONVICTED OF AN ANIMAL ABUSE RELATED OFFENSE, HE OR SHE WILL BE PROHIBITED FROM OWNING, CARING FOR, ET CETERA, AN ANIMAL FOR A SPECIFIED PERIOD OF TIME; AND IF THE PROHIBITION IS VIOLATED, HE OR SHE WILL BE SUBJECT TO A FINE OF $1,000? PURPOSE The purpose of this bill is to prohibit a person who has been convicted of specified animal abuse crimes from owning or caring for an animal for a specified period of time. Existing law creates 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 maliciously or intentionally kill an animal. (Penal Code § 597 (a).) Existing law 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. (Penal Code § 597 (b).) Existing law mandates that whoever carries or causes to be carried in or upon any vehicle or otherwise any domestic animal (More) AB 1117 (Smyth) Page 3 in a cruel or inhuman manner, or knowingly and willfully authorizes or permits that animal to be subjected to unnecessary torture, suffering, or cruelty of any kind, is guilty of a misdemeanor; and whenever any such person is taken into custody therefore by any officer, such officer must take charge of such vehicle and its contents, together with the horse or team attached to such vehicle, and deposit the same in some place of custody; and any necessary expense incurred for taking care of and keeping the same, is a lien thereon, to be paid before the same can be lawfully recovered; and if such expense, or any part thereof, remains unpaid, it may be recovered, by the person incurring the same, of the owner of such domestic animal, in an action therefor. (Penal Code § 597a.) Existing law provides that any person who causes any animal to fight with another animal, or permits the same to be done on any property under his or her control, or aids or abets the fighting of any animal or is present as a spectator is guilty of a misdemeanor, punishable by up to six months in the county jail, by a fine not to exceed $1000, or both. (Penal Code § 597b (a).) Existing law necessitates that any person who causes a cock to fight with another cock, or permits the same to be done on any property under his or her control, and any person who aids or abets the fighting of any cock or is present as a spectator is guilty of a misdemeanor, punishable by imprisonment in the county jail not to exceed one year, by a fine not to exceed $5000, or by both. (Penal Code § 597b (b).) Existing law makes it unlawful for any person to tie or attach or fasten any live animal to any machine or device propelled by any power for the purpose of causing such animal to be pursued by a dog or dogs. (Penal Code § 597h.) Existing law directs that any person who owns, possesses, or trains any bird or animal with the intent that the cock or other bird shall be engaged in an exhibition of fighting by his or her vendee or any other person is guilty of a (More) AB 1117 (Smyth) Page 4 misdemeanor, punishable by imprisonment in the county jail not to exceed six months, by a fine not to exceed $1000; or by both. (Penal Code § 597j.) Existing law states that every person who willfully abandons any animal is guilty of a misdemeanor. (Penal Code § 597s.) Existing law provides that any person who does any of the following is guilty of a felony and is punishable by imprisonment in a state prison for 16 months, 2 or 3 years, by a fine not to exceed $50,000, or by both such fine and imprisonment: Owns, possesses, keeps, or trains any dog, with the intent that the dog shall be engaged in an exhibition of fighting with another dog. For the amusement or gain, causes any dog to fight with another dog, or causes any dogs to injure each other. Permits any of the aforementioned acts in violation to be done on any premises under his or her charge or control, or aids or abets that act. (Penal Code § 597.5.) Existing law declares that 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. (Penal Code § 597.1 (a).) Existing law provides that 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 and safety of the animal or others, the officer shall immediately seize the animal. The (More) AB 1117 (Smyth) Page 5 cost of caring for and treating the 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. (Penal Code § 597.1 (a).) Existing law sets forth the procedure for seizure and impoundment of an animal. (Penal Code § 597.1 (f)-(j).) Existing law provides that upon the conviction of a person charged with a violation of animal abuse, 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. 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. (Penal Code § 597.1 (k).) This bill instead provides that 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. This bill clarifies that the court may order a person convicted of Penal Code sections 597, 597a or 597.1 to immediately deliver all animals in his or her possession to a designated public (More) AB 1117 (Smyth) Page 6 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 animal. This bill provides that 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. This bill provides that it is a public offense punishable by a fine of $1,000 for any person who has been convicted of a misdemeanor violation of Penal Code Section 597, 597a, 597b, 597h, 597j, 597s or 597.1 and within 5 years after that conviction owns, possesses, maintains, has custody of, resides with , or cares for any animal. This bill provides that it is a public offense punishable by a fine of $1,000 for any person who has been convicted of a felony violation of Penal Code sections 597, 597b or 597.5 and within 10 years after that conviction owns, possesses, maintains, has custody of, resides with, or cares for any animal. This bill provides that owners of livestock may file a petition in court to seek to be exempted from the above prohibitions by showing that the imposition of the prohibitions would result in substantial and 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. This bill provides that a defendant may also petition the court to reduce the duration of the mandatory ownership prohibition if he or she establishes that: he or she does not present a danger to animals; he or she has the ability to properly care for all animals in his or her possession; and, he or she has successfully completed all classes or counseling ordered by the court. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION (More) AB 1117 (Smyth) Page 7 For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation. As these cases have progressed, prison conditions have continued to be assailed, and the scrutiny of the federal courts over California's prisons has intensified. On June 30, 2005, in a class action lawsuit filed four years earlier, the United States District Court for the Northern District of California established a Receivership to take control of the delivery of medical services to all California state prisoners confined by the California Department of Corrections and Rehabilitation ("CDCR"). In December of 2006, plaintiffs in two federal lawsuits against CDCR sought a court-ordered limit on the prison population pursuant to the federal Prison Litigation Reform Act. On January 12, 2010, a three-judge federal panel issued an order requiring California to reduce its inmate population to 137.5 percent of design capacity -- a reduction at that time of roughly 40,000 inmates -- within two years. The court stayed implementation of its ruling pending the state's appeal to the U.S. Supreme Court. On May 23, 2011, the United States Supreme Court upheld the decision of the three-judge panel in its entirety, giving California two years from the date of its ruling to reduce its prison population to 137.5 percent of design capacity, subject to the right of the state to seek modifications in appropriate circumstances.
In response to the unresolved prison capacity crisis, in early 2007 the Senate Committee on Public Safety began holding legislative proposals which could further exacerbate prison overcrowding through new or expanded felony prosecutions. This bill does not appear to aggravate the prison overcrowding crisis described above. COMMENTS 1. Need for This Bill (More) AB 1117 (Smyth) Page 8 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, by reducing the amount of animals in need of sheltering. To meet these goals, this bill outlines a simple solution to problems associated with animal abuse. AB 1117 will establish that misdemeanor and felony animal abuse convictions result in a prohibition of animal ownership of 5 years for a misdemeanor conviction and 10 years for a felony. This prohibition of ownership post-conviction will assist in protecting animals, as the recidivism rate for most animal abuse crimes nearly 100%. (More) Additionally, many studies demonstrate a key linkage between animal abuse and other violent behaviors. These studies show that animal abuse behaviors can lead to domestic violence, elder abuse and child abuse. Both the recidivism rate and the correlation to more sever abusive behaviors evoke the need for AB 1117. However, California would not be the first state to establish a post-conviction ownership prohibition. Many other states have already established similar statutes, including Delaware, Kansas, Nebraska, Oregon, Washington, West Virginia and U.S. Virgin Islands. The majority of these laws have at minimum a 5 year prohibition and at maximum a 15 year prohibition, with the exception of the U.S. Virgin Islands which allows the court to prohibit ownership of an animal for, "up to the life time of the offender." Currently in California, the court has the discretion to prohibit ownership, possession, caring for, or residing with an animal as part of the probation terms for misdemeanor and felony animal abuse convictions. However, many of those convicted of animal abuse crimes are still able to own and reside with animals post-conviction. Given the statistics related to recidivism and connection between animal abuse and other violent behavior, greater restrictions are needed for convicted animal abusers. As such, the goal of this bill is to prevent continued abuse by requiring those convicted of a misdemeanor or felony to be prohibited from owning an animal for 5 or 10 year respectively. 2. Prohibition from Possession of Animal after Abuse Conviction This bill provides that if a person is convicted of specified misdemeanor animal abuse statutes, the person is prohibited (More) AB 1117 (Smyth) Page 10 from owning, possessing, maintaining, having custody of, residing with, or caring for any animal for a period of not less than five years. If the person is convicted of specified felony animal abuse statutes, the prohibition will be 10 years. A violation of this prohibition would be a public offense punishable by a fine of $1,000. Upon conviction, the court may also order 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 that the person no longer has any animals. If a person is an owner of livestock, he or she may file a petition with the court and the court may find in the interest of justice that the prohibition against owning or caring for animals would cause economic hardship on the person, and the person has the ability to properly care for all animals in his or her possession. A person may also petition the court to reduce the duration of the prohibition by showing he or she does not present a danger to animals, he or she has the ability to properly care for all animals in his or her possession, and he or she has successfully completed all classes or counseling ordered by the court. 3. Support Supporters of this bill argue that animal abuse is often part of a long-term pattern of abuse against animals, and those convicted of animal abuse should be prohibited from owning an animal for a period of time. Specifically, Animal Issues Movement states: Unfortunately animal abuse is a symptom of much greater psycho-social and emotional issues and has often been a long pattern of behavior developed in childhood. We cannot expect those who are addicted to power, control and venting their anger on voiceless AB 1117 (Smyth) Page 11 beings to immediately change that behavior. It is important that we do not become enablers by allowing them private access to helpless victims before they had time to obtain long term rehabilitation. 4. Opposition The agricultural associations in opposition to this bill believe that the bill: ÝW]ould alter the balance in the criminal justice system between animal protection officers, livestock producers, animal owners and the courts. The current system offers judges and prosecutors adequate tools to address animal cruelty violations-including prohibiting the perpetrator from owning an animal for a specified period. By eliminating the discretion of the judge and providing additional powers shifted to the authorities, we believe this legislation goes too far and will upset the balance of justice. The proponents state the purpose of this bill is to address chronic hoarders - a condition a judge may not be aware of when sentencing. This bill is far too broad to remedy that specific issue and may lead to unforeseen negative circumstances. ***************