BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2011-2012 Regular Session               B

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          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




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          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 




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          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 




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          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 




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          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 




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          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
          




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          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  




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          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%.


























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               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 




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          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 











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               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:

               W]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.


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