BILL ANALYSIS Ó
SB 425
Page 1
Date of Hearing: June 21, 2011
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 425 (Calderon) - As Amended: March 21, 2011
SUMMARY : Creates minimum mandatory fines for various animal
fighting offenses and applies existing forfeiture proceedings
for dog fighting to cockfighting. Specifically, this bill :
1)Increases the maximum fine for attending a cockfight for a
minor under the age of 16 years from $100 to $500.
2)Creates a minimum mandatory fine of $10,000 ($37,103 with
penalties and assessments; existing law imposes a fine of up
to $50,000 fine) for any person who:
a) Owns, possesses, keeps, or trains any dog, with the
intent that the dog shall be engaged in an exhibition of
fighting with another dog;
b) For amusement or gain, causes any dog to fight with
another dog, or causes any dogs to injure each other; or,
c) Permits any act in violation of the above to be done on
any premises under his or her charge or control, or aids or
abets that act.
3)Creates a minimum mandatory fine of $1,000 ($3,803 with
penalties and assessments; existing law imposes a maximum
$5,000 fine) for spectators of dog fights.
4)Creates a minimum mandatory fine of $1,000 ($3,803 with
penalties and assessments; existing law imposes a maximum fine
of $5,000) for engaging in specified acts causing animal
fights.
5)Creates a minimum mandatory fine of $1,000 ($3,803 with
penalties and assessments; existing law imposes a maximum fine
of $5,000) for causing a cock fight.
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6)Creates a minimum mandatory fine of $500 ($1,953 with
penalties and assessments) for any person who is knowingly
present as a spectator at any place, building, or tenement for
an exhibition of animal fighting, or who is knowingly present
at that exhibition or is knowingly present where preparations
are being made for specified prohibited acts involving animal
fighting.
7)Creates a maximum fine of $2,500 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.
8)Creates a mandatory minimum fine of $1,000 ($3,803.00 with
penalties and assessments; existing law imposes a maximum fine
of $5,000) for any person convicted of possessing gaffs or
slashers, or any other sharp implement designed to be attached
in place of the natural spur of a gamecock or other fighting
bird.
9)Creates a mandatory minimum fine of $1,000 ($3,803 with
penalties and assessments; existing law imposes a maximum fine
of $5,000) for any person convicted of training a bird for
fighting,.
10)Extends existing forfeiture proceedings for persons engaged
in dog fighting to cockfighting.
EXISTING LAW :
1)Makes it a misdemeanor punishable by a fine not exceeding $100
or by imprisonment in the county jail for not more than 25
days for any minor under the age of 16 years to visit or
attend any prizefight, cockfight or place where any prizefight
or cockfight is advertised and for any owner, lessee or
proprietor of any place where any prizefight or cockfight is
advertised to admit any minor or to sell or five to any such
minor a ticket to a place where a prizefight or cockfight is
advertised to take place. (Penal Code Section 310).
2)Provides that any person who does any of the following is
guilty of a felony and is punishable by imprisonment in the
state prison for 16 months, 2 or 3 years or by a fine not
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exceeding $50,000:
a) Owns, possesses, keeps, or trains any dog, with the
intent that the dog shall be engaged in an exhibition of
fighting with another dog;
b) For amusement or gain, causes any dog to fight with
another dog, or causes any dogs to injure each other; or,
c) Permits either of the above to be done on any premises
under his or her charge or control, or aids, or abets that
act. ÝPenal Code Section 597.5(a).]
3)Provides that any person who is knowingly present, as a
spectator, at any place, building, or tenement where
preparations are being made for an exhibition of the fighting
of dogs, with the intent to be present at those preparations,
or is knowingly present at the exhibitions or at any other
fighting or injuring with the intent to be present at that
exhibition, fighting or injuring, is guilty of a misdemeanor
punishable by up to one year in county jail and/or a fine not
to exceed $5,000. ÝPenal Code Section 597.5(b).]
4)Provides that any person, who for amusement or gain, causes
any bull, bear, or other animal, not including any dog, to
fight with the like kind of animal or creature, or causes any
animal, including any dog, to fight with a different kind of
animal or creature, or with any human being; or who, for
amusement or gain, worries or injures any bull, bear, dog, or
other animal, or causes any bull, bear or other animal, not
including any dog, to worry or injure each other; and any
person who permits the same to be done on any premises under
his or her charge or control; and any person who aids, abets,
is guilty of a misdemeanor punishable by up to one year in
jail and/or a fine of $5000. ÝPenal Code Section 597b(a).]
5)Makes it a misdemeanor to cause, for amusement or gain, an
animal to fight a like or different animal. The penalty for a
first offense is up to one year in county jail and/or a fine
of $5,000. ÝPenal Code Section 597b(b).]
6)Provides that any person who is knowingly present as a
spectator at any place, building, or tenement for an
exhibition of animal fighting, or who is knowingly present
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where preparations are being made for animal fighting is
guilty of a misdemeanor punishable by up to 6 months in jail
and a fine up to $1,000. (Penal Code Section 597c.)
7)Provides that it is a misdemeanor punishable by up to six
months in jail and/or a fine up to $1,000 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 Section
597h.)
8)Makes it a misdemeanor for any person to own, possess, keep or
train any bird or animal with the intent that it be used in an
exhibition of fighting. The penalty for a first offense is up
to one year in county jail and/or a fine of $5,000. ÝPenal
Code Section597j(a).]
9)Provides that second or subsequent violation of Penal Code
Section 597j is a misdemeanor with a penalty of up to one year
in county jail and/or a fine up to $25,000. (Penal Code
Section 597j.)
10)Provides that the prosecuting agency in a criminal proceeding
where a person has been charged with dog fighting may file a
petition for forfeiture of any property interest, whether
tangible or intangible, that was acquired through the
commission of the crimes and sets forth procedures for such
forfeiture. (Penal Code Section 598.1)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Animal fighting
- dogfighting and cockfighting - remain pervasive, insidious,
and dangerous threats to California communities. In spite of
increased attention from media, law enforcement, and the
legislature, these underground organized criminal activities
continue to thrive across urban and rural, coastal and inland,
northern and southern California."
2)Penalties and Assessments : This bill imposes minimum
mandatory fines subject to penalty enhancements. The minimum
mandatory fines in this bill range from $10,000 to $500. With
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state and local budget constraints in recent years, penalty
assessments have become a way for California and its counties
to raise needed funds. Currently, penalty assessments are
270% of the base fine, with a flat $103 added to each fine.
Calculation of penalty assessments on a base fine of $10,000:
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Base Fine: $10,000
Penal Code 1464 Assessment: $10,000($10 for
every $10 in fines)
Penal Code 1465.7 Assessment: 2,000(20%
surcharge)
Penal Code 1465.8 Assessment: 40($40
fee per fine)
Government Code 70372 Assessment: 5,000($5 for
every $10 in fines)
Government Code 76000 Assessment: 7,000($7 for
every $10 in fines)
Government Code 76000.10 Assessment: 4($4 fee
per fine)
Government Code 76000.5 Assessment: 2,000($2 for
every $10 in fines)
Government Code 76104.6 Assessment: 1,000($1 for
every $10 in fines)
Vehicle Code 42007.1(a) Assessment: 49($49
fee per fine)
Vehicle Code 40508.6 Assessment: 10($10
fee per fine)
Total Fine with Assessment: $37,103
3)Removes Judicial Discretion : In general, it is good public
policy overall to permit courts to have judicial discretion on
the imposition of fines based on the facts and circumstances
of cases. Not every case fits the lowest common denominator
of the crime. Courts are in the best position to determine
the appropriate remedies for cases because they are intimately
involved in the proceedings of a case and may determine
whether the punishment fits the crime. This bill applies to
persons who are merely present at the events or property
owners who are not even present at events. Though potentially
culpable, judges should be able to determine the level of
punishment based on what the person is actually engaged in.
Legislating "cookie-cutter" mandatory fines as high at $37,103
makes for less sensible public policy than giving judges
appropriate options for punishment.
4)Drafting Issues : This bill appears to permit a court to
impose a lesser sentence for a person who owns, possesses,
keeps, or trains any dog, with the intent that the dog shall
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be engaged in an exhibition of fighting with another dog; or
for amusement or gain, causes any dog to fight with another
dog, or causes any dogs to injure each other; or permit any of
the above to be done on any premises under his or her charge
or control, or aids, or abets that act. This bill amends the
existing code which mandates 16 months, 2 or 3 years in state
prison and/or a maximum fine of $50,000 by imposing a
mandatory minimum fine of $10,000 but provides an exception to
the proscribed sentence "in unusual circumstances where the
interests of justice would be better served by a lesser
sentence." Since this bill is only modifying the fine by
imposing a minimum mandatory fine, the author's intent might
be to give courts some discretion on the imposition of the
fine. However, as written, the court may deviate from the
imposition of the entire sentence, including prison time.
5)Forfeiture : SB 318 (Calderon), Chapter 302, Statutes of 2009,
created forfeiture procedures for property acquired through
the commission of dog fighting. The property that can be
forfeited includes personal and real property, profits,
proceeds and instrumentalities acquired, accumulated or used
by dogfighting participants, organizers, transporters of
animals and equipment, breeders and trainers of fighting dogs
and persons who steal or illegally obtain dogs or other
animals for fighting including bait and sparring animals.
This bill extends these forfeiture provisions to cockfighting.
6)Argument in Support : According to the Humane Society of the
United States , "Ýd]ogfighting and cockfighting remain
pervasive, insidious, and dangerous threats to California
communities. In spite of increased attention from media, law
enforcement and the legislature, these underground organized
criminal activities continue to thrive across urban and rural,
coastal and inland, northern and southern California.
"California's law enforcement officers are serious about ending
animal fighting, but need better tools, particularly with
respect to cockfighting. Since January 2008, there have been
pre than 100 major cockfighting busts in 35 California
counties involving more than 20,000 live or dead birds. In
February along, there were nine busts in nine different
counties, from Tehama in north to San Diego in the south and
coastal and rural counties in between. County supervisors in
Placer and Napa counties have specifically requested state
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action to strengthen cockfighting laws and the editors of the
San Diego Union Tribune, the Los Angeles Times, and the
Bakersfield Californian, have recently joined the chorus
asking the Legislature to act.
"While the real solution is a felony provision for cockfighting
participation, burgeoning prison populations make creation of
a new felony politically infeasible. However, there are
several ways to attack this scourge and increase the costs of
'doing business' for animal fighters in California through SB
425's effort to reduce the economic resources available to
those criminals who facilitate and support he crime of animal
fighting."
7)Argument in Opposition : According to the California Attorneys
for Criminal Justice , "On behalf of California Attorneys for
Criminal Justice (CACJ), a statewide association for criminal
defense attorneys, I regret to inform you that we cannot
endorse SB 425, a bill to increase fines and penalties for
engaging in certain inchoate acts or omissions pertaining to
chicken and dog fighting. For reasons explained herein, CACJ
believes the better course is to allow existing recently
enacted federal measures which were designed by Congress to
have far more effect on any problem that California may be
experiencing with various animal fighting ventures.
"In May 2007, all interstate animal fighting activities were
made illegal by the Animal Fighting Prohibition Enforcement
Act. Congress clearly has the power to 'regulate those
activities having a substantial relation to interstate
commerce, i.e., those activities that substantially affect
interstate commerce.' Congress rarely exceeds the scope of
their legal authority to create crimes vested in them by the
Commerce Clause. See generally, U.S. v. Lopez (1995) 514 U.S.
549. As shown herein, the Animal Fighting Prohibition
Enforcement Act will apply even to intrastate animal fighting
ventures. It should be obvious that such events require more
than word of mouth, in order to gain enough economic incentive
to occur in the first place. Congress has created a law that
does more than harass a few aficionados of animal fighting.
It puts a stop to such matters by providing strong prison
sentences and extreme fines for those who actively plan such
ventures.
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"By federal law, it is now a felony for any person to knowingly
sell, buy, possess, train, transport, deliver, or receive any
animal for purposes of having the animal participate in an
animal fighting venture. And it is a felony for any person to
knowingly sponsor or exhibit an animal in an animal fighting
venture. And it is a felony for any person to knowingly use
the mail service of the United States Postal Service or any
instrumentality of interstate commerce for commercial speech
for purposes of advertising an animal, or an instrument, for
use in an animal fighting venture, promoting or in any other
manner furthering an animal fighting venture anywhere in the
United States. Fines range up to $250,000.00 for every single
violation. Under existing federal law:
a) "The term 'animal fighting venture' means any event, in
or affecting interstate or foreign commerce, that involves
a fight conducted or to be conducted between at least 2
animals for purposes of sport, wagering, or entertainment,
except that the term 'animal fighting venture' shall not be
(and often do) discourage then initiation and continuation
of federal investigations that have so far, proved much
more effective both in terms of enforcement and in public
awareness of the crime of animal fighting.
b) "The term 'instrumentality of interstate commerce' means
any written, wire, radio, television or other form of
communication in, or using a facility of, interstate
commerce;
c) "The term 'State' means any State of the United States,
the District of Columbia, the Commonwealth of Puerto Rico,
and any territory or possession of the United States;
d) "The term 'animal' means any live bird, or any live
mammal, except man.
"Furthermore, there is currently a Congressional statement of
policy which says: The Congress finds that animals and
activities which are regulated under this Act Ý7 USCS §§ 2131
et seq.] are either in interstate or foreign commerce or
substantially affect such commerce or the free flow thereof,
and that regulation of animals and activities as provided in
this Act Ý7 USCS §§ 2131 et seq.] is necessary to prevent and
eliminate burdens upon such commerce and to effectively
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regulate such commerce, in order:
a) "To insure that animals intended for use in research
facilities or for exhibition purposes or for use as pets
are provided humane care and treatment;
b) "To assure the humane treatment of animals during
transportation in commerce; and
c) "To protect the owners of animals from the theft of
their animals by preventing the sale or use of animals
which have been stolen.
"CACJ opposes SB 425 because the proposed law is far too vague
to be enforced, and because existing federal law effectively
criminalizes a far wider range of activity with interstate
commerce powers. This includes heavy criminal (3 years in
federal prison) and monetary ($250,000.00) penalties that
provide more effective deterrents, enforcement options and
publicity towards other would be criminals that it is just not
worth it to promote animal fighting in any of its forms.
"CACJ feels that the prevention of harm to animals, the actual
participation or even interest (via media dissemination of
information) therein, can be better achieved by way of
allowing existing federal law to work. SB 425 provides no
comparable deterrent effect. AB 425 allows persons
susceptible to such interests to see for themselves, and with
little risk, what ought to have been prevented in the first
place by way of proactive legal prohibitions and public
awareness that comes with federal indictments and the
resultant prosecutions of high ranking figures in the animal
fighting milieu. In this sense, CACJ urges you to see that a
vote for SB 425, is a vote to frustrate (at significant cost
to this State), the very purpose of recently enacted Animal
Fighting Prohibition Enforcement Act.
"The Animal Fighting Prohibition Enforcement Act goes much
farther than SB 425 ever could. The Animal Fighting
Prohibition Enforcement Act criminalizes selling, buying,
possession of, training, transportation, delivery, or
receiving of any animal for purposes of having the animal
participate in an animal fighting venture. CACJ believes that
the federal government is now in a far better position than
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California to dissuade so much as an interest in such 'sports'
before any animal is injured, through the use of judicially
authorized wiretaps, the detection and seizure of internet
based and other federally provided detection and enforcement
methods. SB 425 sends the wrong message by authorizing local
law enforcement to needlessly intervene in areas where federal
investigations are underway. Efforts based upon vague and
conflicting state laws can (and often do) discourage then
initiation and continuation of federal investigations that
have so far, proved much more effective both in terms of
enforcement and in public awareness of the crime of animal
fighting.
"The Animal Fighting Prohibition Enforcement Act protects
animals by providing a strong deterrent to such crimes before
they can occur. Unlike SB 425, the Animal Fighting
Prohibition Enforcement Act works early, at the media
dissemination level. At this level, interstate commerce and
intrastate purposes invariably fuse into indictable felony
charges which always make a clear and indelible statement to
the public at large, that the consequences of an animal
fighting indictment makes the criminal calculus of such a
'sport' far too risky to venture into in the first place.
"State involvement, as contemplated by SB 425, is not nearly
as effective as the Congressional interstate commerce model,
and to have a law so vague as to impose a mandatory minimum
fines (for being present where preparations are being made)
for such ventures will be deemed both vague and unenforceable
should any serious legal challenge to SB 425 occur. CACJ
recognizes that adding to existing fines, as SB 425 would do,
only increases the economic likelihood of effective court
challenges to an already vague, outdated and improvident penal
law.
"Finally, CACJ urges you to find that it makes no economic
sense to think that the State coffers will ever recover a
fraction of what SB 425 will cost in terms of ineffective
arrests and mixed signals to the small segment of the public
that would look elsewhere for entertainment, if the more
effectively drawn federal law is brought to the forefront of
California's efforts to protect helpless animals.
8)Prior Legislation : SB 318 (Calderon), Chapter 302, Statutes
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of 2009, provides for forfeiture procedures for specified
property acquired through the crime of dog fighting, as
specified.
REGISTERED SUPPORT / OPPOSITION :
Support
American Society for the Prevention of Cruelty to Animals
Animal Place
California Animal Control Directors Association
California Peace Officers' Association
California Police Chiefs Association
California State Sheriffs' Association
Humane Society of the United States
Los Angeles District Attorney's Office
Public Interest Coalition
San Bernardino County Sheriff's Department
San Diego Board of Supervisors
Three private individuals
Opposition
Association for the Preservation of Gamefowl
California Attorneys for Criminal Justice
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744