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. SB 425 Page 2 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 SB 425 Page 3 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 SB 425 Page 4 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 SB 425 Page 5 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: SB 425 Page 6 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 SB 425 Page 7 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 SB 425 Page 8 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. SB 425 Page 9 "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 SB 425 Page 10 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 SB 425 Page 11 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 SB 425 Page 12 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