BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 425
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          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.  ĘPenal 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.  ĘPenal 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.  ĘPenal 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.  ĘPenal 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.  ĘPenal 
            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  , "Ęd]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 Ę7 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 Ę7 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