BILL NUMBER: SB 425 CHAPTERED
BILL TEXT
CHAPTER 562
FILED WITH SECRETARY OF STATE OCTOBER 7, 2011
APPROVED BY GOVERNOR OCTOBER 7, 2011
PASSED THE SENATE AUGUST 30, 2011
PASSED THE ASSEMBLY JULY 14, 2011
AMENDED IN ASSEMBLY JUNE 23, 2011
AMENDED IN SENATE MARCH 21, 2011
INTRODUCED BY Senator Calderon
(Coauthors: Senators Evans, Gaines, and Strickland)
FEBRUARY 16, 2011
An act to amend Sections 310, 597h, and 598.1 of the Penal Code,
relating to cruelty to animals.
LEGISLATIVE COUNSEL'S DIGEST
SB 425, Calderon. Cruelty to animals: fighting.
(1) Existing law provides that any minor under 16 years of age who
visits or attends any prizefight, cockfight, or place where any
prizefight, or cockfight, is advertised to take place, and any owner,
lessee, or proprietor, or the agent of any owner, lessee, or
proprietor of any place where any prizefight or cockfight is
advertised or represented to take place who admits any minor to a
place where any prizefight or cockfight is advertised or represented
to take place or who admits, sells, or gives to any minor a ticket or
other paper by which that minor may be admitted to a place where a
prizefight or cockfight is advertised to take place, is guilty of a
misdemeanor, and is punishable by a fine not exceeding $100 or by
imprisonment in the county jail for not more than 25 days.
This bill would increase the fine in the case of cockfighting to
an amount not to exceed $500.
(2) Existing law provides that it shall be 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 that animal to be
pursued by a dog or dogs, and that any person violating any of those
provisions is guilty of a misdemeanor.
This bill would provide that any fine imposed for that misdemeanor
be in the amount of $2,500.
(3) Existing law provides that the prosecuting agency in a
criminal proceeding in which the defendant has been charged with the
commission of any of certain crimes pertaining to dogfighting may, in
conjunction with the criminal proceeding, file a petition for
forfeiture as provided, and that if the prosecuting agency has filed
a petition for forfeiture and the defendant is convicted of any of
those crimes, specified assets would be subject to forfeiture, as
specified. The prosecuting agency for purposes of these provisions
includes the Attorney General.
This bill would extend those provisions to criminal proceedings
involving cockfighting.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 310 of the Penal Code is amended to read:
310. (a) Any minor under 16 years of age who visits or attends
any prizefight or place where any prizefight is advertised to take
place, and any owner, lessee, or proprietor, or the agent of any
owner, lessee, or proprietor of any place where any prizefight is
advertised or represented to take place who admits any minor to a
place where any prizefight is advertised or represented to take place
or who admits, sells, or gives to any minor a ticket or other paper
by which that minor may be admitted to a place where a prizefight is
advertised to take place, is guilty of a misdemeanor, and is
punishable by a fine not exceeding one hundred dollars ($100) or by
imprisonment in the county jail for not more than 25 days.
(b) Any minor under 16 years of age who visits or attends any
cockfight or place where any cockfight is advertised to take place,
and any owner, lessee, or proprietor, or the agent of any owner,
lessee, or proprietor of any place where any cockfight is advertised
or represented to take place who admits any minor to a place where
any cockfight is advertised or represented to take place or who
admits, sells, or gives to any minor a ticket or other paper by which
that minor may be admitted to a place where a cockfight is
advertised to take place, is guilty of a misdemeanor, and is
punishable by a fine not exceeding five hundred dollars ($500) or by
imprisonment in the county jail for not more than 25 days.
SEC. 2. Section 597h of the Penal Code is amended to read:
597h. (a) It shall be 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 that animal to be pursued by a dog
or dogs.
(b) Any person violating any of the provisions of this section
shall be guilty of a misdemeanor punishable by a fine of two thousand
five hundred dollars ($2,500) or by imprisonment in a county jail
not exceeding six months, or by both that imprisonment and fine.
SEC. 3. Section 598.1 of the Penal Code is amended to read:
598.1. (a) The prosecuting agency in a criminal proceeding in
which the defendant has been charged with the commission of any of
the crimes listed in subdivision (a) of Section 597.5 or subdivision
(b) of Section 597b may, in conjunction with the criminal proceeding,
file a petition for forfeiture as provided in subdivision (c). If
the prosecuting agency has filed a petition for forfeiture pursuant
to subdivision (c) and the defendant is convicted of any of the
crimes described in subdivision (a) of Section 597.5 or subdivision
(b) of Section 597b, the assets listed in subdivision (b) shall be
subject to forfeiture upon proof of the elements of subdivision (b)
and in accordance with this section.
(b) (1) Any property interest, whether tangible or intangible,
that was acquired through the commission of any of the crimes listed
in subdivision (a) of Section 597.5 or subdivision (b) of Section
597b shall be subject to forfeiture, including both personal and real
property, profits, proceeds, and the instrumentalities acquired,
accumulated, or used by cockfighting or dogfighting participants,
organizers, transporters of animals and equipment, breeders and
trainers of fighting birds or fighting dogs, and persons who steal or
illegally obtain dogs or other animals for fighting, including bait
and sparring animals.
(2) Notwithstanding paragraph (1), the following property shall
not be subject to forfeiture under this section:
(A) Property solely owned by a bona fide purchaser for value, who
was without knowledge that the property was intended to be used for a
purpose which would subject it to forfeiture under this section, or
is subject to forfeiture under this section.
(B) Property used as a family residence and owned by two or more
inhabitants, one of whom had no knowledge of its unlawful use.
(c) (1) If the prosecuting agency proceeds under subdivision (a),
that agency shall, in conjunction with the criminal proceeding, file
a petition for forfeiture with the superior court of the county in
which the defendant has been charged with the commission of any of
the crimes listed in subdivision (a) of Section 597.5 or subdivision
(b) of Section 597b, that shall allege that the defendant has
committed those crimes and the property is forfeitable pursuant to
subdivision (a).
(2) The prosecuting agency shall make service of process of a
notice regarding that petition upon every individual who may have a
property interest in the alleged proceeds, and that notice shall
state that any interested party may file a verified claim with the
superior court stating the amount of the party's claimed interest and
an affirmation or denial of the prosecuting agency's allegation.
(3) If the notices cannot be served by registered mail or personal
delivery, the notices shall be published for at least three
consecutive weeks in a newspaper of general circulation in the county
where the property is located.
(4) If the property alleged to be subject to forfeiture is real
property, the prosecuting agency shall, at the time of filing the
petition for forfeiture, record a lis pendens in each county in which
real property alleged to be subject to forfeiture is located.
(5) The judgment of forfeiture shall not affect the interest of
any third party in real property that was acquired prior to the
recording of the lis pendens.
(6) All notices shall set forth the time within which a claim of
interest in the property seized is required to be filed pursuant to
this section.
(d) Any person claiming an interest in the property or proceeds
seized may, at any time within 30 days from the date of the first
publication of the notice of seizure, or within 30 days after receipt
of the actual notice, file with the superior court of the county in
which the action is pending a verified claim stating his or her
interest in the property or proceeds. A verified copy of the claim
shall be given by the claimant to the Attorney General, or the
district or city attorney, whichever is the prosecuting agency of the
underlying crime.
(e) (1) If, at the end of the time set forth in subdivision (d),
an interested person, other than the defendant, has not filed a
claim, the court, upon a motion, shall declare that the person has
defaulted upon his or her alleged interest, and that interest shall
be subject to forfeiture upon proof of the elements of subdivision
(b).
(2) The defendant may admit or deny that the property is subject
to forfeiture pursuant to this section. If the defendant fails to
admit or deny, or fails to file a claim of interest in the property
or proceeds, the court shall enter a response of denial on behalf of
the defendant.
(f) (1) The forfeiture proceeding shall be set for hearing in the
superior court in which the underlying criminal offense will be
tried.
(2) If the defendant is found guilty of the underlying offense,
the issue of forfeiture shall be promptly tried, either before the
same jury or before a new jury in the discretion of the court, unless
waived by the consent of all parties.
(g) At the forfeiture hearing, the prosecuting agency shall have
the burden of establishing beyond a reasonable doubt that the
defendant was engaged in any of the crimes described in subdivision
(a) of Section 597.5 or subdivision (b) of Section 597b and that the
property comes within the provisions of subdivision (b).
(h) Concurrent with, or subsequent to, the filing of the petition,
the prosecuting agency may move the superior court for the following
pendente lite orders to preserve the status quo of the property
alleged in the petition of forfeiture:
(1) An injunction to restrain all interested parties and enjoin
them from transferring, encumbering, hypothecating, or otherwise
disposing of that property.
(2) Appointment of a receiver to take possession of, care for,
manage, and operate the assets and properties so that the property
may be maintained and preserved.
(i) (1) No preliminary injunction may be granted or receiver
appointed without notice to the interested parties and a hearing to
determine that the order is necessary to preserve the property,
pending the outcome of the criminal proceedings, and that there is
probable cause to believe that the property alleged in the forfeiture
proceedings are proceeds or property interests forfeitable under
subdivision (a). However, a temporary restraining order may issue
pending that hearing pursuant to the provisions of Section 527 of the
Code of Civil Procedure.
(2) Notwithstanding any other provision of law, the court, when
granting or issuing these orders may order a surety bond or
undertaking to preserve the property interests of the interested
parties. The court shall, in making its orders, seek to protect the
interest of those who may be involved in the same enterprise as the
defendant, but who are not involved in any of the crimes described in
subdivision (a) of Section 597.5 or subdivision (b) of Section 597b.
(j) If the trier of fact at the forfeiture hearing finds that the
alleged property or proceeds are forfeitable pursuant to subdivision
(a), and that the defendant was convicted of a crime listed in
subdivision (a) of Section 597.5 or subdivision (b) of Section 597b,
the court shall declare that property or proceeds forfeited to the
state or local governmental entity, subject to distribution as
provided in subdivision (l).
(k) (1) If the trier of fact at the forfeiture hearing finds that
the alleged property is forfeitable pursuant to subdivision (a) but
does not find that a person holding a valid lien, mortgage, security
interest, or interest under a conditional sales contract acquired
that interest with actual knowledge that the property was to be used
for a purpose for which forfeiture is permitted, and the amount due
to that person is less than the appraised value of the property, that
person may pay to the state or the local governmental entity that
initiated the forfeiture proceeding the amount of the registered
owner's equity, which shall be deemed to be the difference between
the appraised value and the amount of the lien, mortgage, security
interest, or interest under a conditional sales contract. Upon that
payment, the state or local governmental entity shall relinquish all
claims to the property.
(2) If the holder of the interest elects not to make that payment
to the state or local governmental entity, the property shall be
deemed forfeited to the state or local governmental entity.
(3) The appraised value shall be determined as of the date
judgment is entered either by agreement between the legal owner and
the governmental entity involved, or if they cannot agree, then by a
court-appointed appraiser for the county in which the action is
brought.
(4) If the amount due to a person holding a valid lien, mortgage,
security interest, or interest under a conditional sales contract is
less than the value of the property and the person elects not to make
payment to the governmental entity, the property shall be sold at
public auction by the Department of General Services or by the local
governmental entity which shall provide notice of that sale by one
publication in a newspaper published and circulated in the city,
community, or locality where the sale is to take place. Proceeds of
the sale shall be distributed pursuant to subdivision (l).
(l) Notwithstanding that no response or claim has been filed
pursuant to subdivision (d), in all cases where property is forfeited
pursuant to this section and is sold by the Department of General
Services or a local governmental entity, the property forfeited or
the proceeds of the sale shall be distributed by the state or local
governmental entity, as follows:
(1) To the bona fide or innocent purchaser, conditional sales
vendor, or holder of a valid lien, mortgage, or security interest, if
any, up to the amount of his or her interest in the property or
proceeds, when the court declaring the forfeiture orders a
distribution to that person. The court shall endeavor to discover all
those lienholders and protect their interests and may, at its
discretion, order the proceeds placed in escrow for a period not to
exceed 60 additional days to ensure that all valid claims are
received and processed.
(2) To the Department of General Services or local governmental
entity for all expenditures made or incurred by it in connection with
the sale of the property, including expenditures for any necessary
repairs, storage, or transportation of any property seized under this
section.
(3) To local nonprofit organizations exempt under Section 501(c)
(3) of the Internal Revenue Code, the primary activities of which
include ongoing rescue, foster, or other care of animals that are the
victims of cockfighting or dogfighting, and to law enforcement
entities, including multiagency task forces, that actively
investigate and prosecute animal fighting crimes.
(4) Any remaining funds not fully distributed to organizations or
entities pursuant to paragraph (3) shall be deposited in an escrow
account or restricted fund to be distributed as soon as possible in
accordance with paragraph (3).