BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair S 2011-2012 Regular Session B 1 5 0 SB 1500 (Lieu) 0 As Amended April 9, 2012 Hearing date: April 17, 2012 Penal Code MK:mc SEIZED AND ABANDONED ANIMALS: FULL COSTS: FORFEITURE HISTORY Source: Los Angeles County District Attorney's Office Prior Legislation: AB 1117 (Smyth) - Chapter 553, Stats. 2011 AB 243 (Nava) - vetoed, 2009 Support: California District Attorneys Association Opposition:California Federation of Dog Clubs KEY ISSUES SHOULD THE LAW CLARIFY THAT A PERSON WHOSE ANIMALS WERE SEIZED IS LIABLE FOR THE FULL COSTS OF CARE OF THE ANIMALS? SHOULD THE LAW MAKE IT CLEAR THAT A PERSON SHALL NOT HAVE A SEIZED ANIMAL RETURNED UNTIL HE OR SHE PROVES HE OR SHE CAN CARE FOR THE ANIMAL? (More) SB 1500 (Lieu) Page 2 (CONTINUED) SHOULD THE BURDEN FOR REDUCING THE TIME FOR THE PROHIBITION OF OWNING AN ANIMAL AFTER CONVICTION FOR ABUSE BE A PREPONDERANCE OF THE EVIDENCE? SHOULD THE LAW CLARIFY THAT A PERSON WHO HAS HAD AN ANIMAL SEIZED PURSUANT TO A SEARCH WARRANT IS NOT ENTITLED TO A POST-SEIZURE HEARING? PURPOSE The purpose of this bill is to make a number of clarifying changes to provisions dealing with the seizure of animals. 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 in a cruel or inhuman manner, or knowingly and willfully (More) SB 1500 (Lieu) Page 3 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; a by a fine not to exceed $1,000; 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 $5,000; 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 misdemeanor, punishable by imprisonment in the county jail not (More) SB 1500 (Lieu) Page 4 to exceed six months; by a fine not to exceed $1,000; 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 cost of caring for and treating the animal seized under this (More) SB 1500 (Lieu) Page 5 subdivision or pursuant to a search warrant 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 generally provides that peace officers, humane officers and animal control officers can take control of a sick or abandoned animal and cause the animal to be killed or treated. The officer may seize the animal when he or she has reasonable grounds to believe that the seizure is necessary for the safety of the animal or others. The law further provides that the cost of caring for and treating any animal properly seized under this subdivision or pursuant to a search shall constitute a lien on the animal, and the animal shall not be returned to its owner until the charges are paid. (Penal Code § 597.1 (b).) Existing law provides that any peace officer, human society officer or animal control officer shall convey all injured cats and dogs found without their owner in a public place directly to a veterinarian. The cost of caring for and treating any animal seized 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 (c).) This bill clarifies that when costs are owed they are the "full" costs. Existing law sets forth the procedure for seizure and impoundment of an animal including the right to a post-seizure hearing and the requirement that if the seizure was justified the owner or keeper shall be liable to the seizing agency for costs. (Penal Code § 597.1 (f).) This bill provides that if the animals were seized pursuant to a search warrant, the owner or keeper is not entitled to a postseizure hearing with the seizing agency. This bill clarifies that when costs are owed, they are the "full" costs. (More) SB 1500 (Lieu) Page 6 Existing law provides that a seized animal shall not be returned to the owner until the charges are paid and the seizing agency or hearing officer has determined that the animal is physically fit or the owner demonstrates to the seizing agency's or the hearing officer's satisfaction that the owner can and will provide the necessary care. (Penal Code § 597.1(f)(4).) This bill provides instead that a seized animal shall not be returned to its owner until the charges are paid and the owner demonstrates to the satisfaction of the seizing agency or the hearing officer that the owner can and will provide the necessary care and does not present a danger to the animal. Existing law provides that if any animal is properly seized under this section or pursuant to a search warrant, the owner or keeper shall be personally liable to the seizing agency for the cost of the seizure and care of the animal. (Penal Code § 597.1(h).) This bill clarifies that the person shall be liable for the "full" cost of the seizure and care of the animal and further provides that a statement of the charges shall be presented to the owner or keeper at the time of the postseizure hearing, except that if no postseizure hearing is requested, or none is required by law, a statement of charges shall be sent or delivered by certified mail or personal delivery to the owner or keeper upon expiration of the time to request a hearing. Existing law provides that if the charges for the seizure or impoundment and any other charges permitted under this section are not paid within 14 days of the seizure, or if the owner, within 14 days of notice of availability of the animal to be returned, fails to pay charges permitted under this section and takes possession of the animal, the animal shall be deemed to have been abandoned and may be disposed of by the impounding officer. (Penal Code § 597.1(h).) (More) SB 1500 (Lieu) Page 7 This bill provides that if during the first 14 days after the seizure the owner satisfies payment of all charges that accrued under this section, and the animal remains impounded, the seizing agency shall continue to regularly send or deliver statements of charges that identify all new charges that have accrued. The time period for sending or delivering the statement shall be at the discretion of the seizing agency, but shall not exceed 30 days from the date the previous statement was sent or delivered. Each statement of charges shall be sent or delivered by certified mail or personal delivery. Each statement of charges shall state that if the owner fails to pay the new accrued charges within 14 days of the sending or delivering of the statement, the animal shall be deemed to have been abandoned and becomes the property of the seizing agency. Existing law provides that if the seized animal requires veterinary care and the humane society is not assured within 14 days of the seizure of the animal, the owner will provide the necessary care, the animal shall not be returned to the owner and shall be deemed to have been abandoned, and may be disposed of by the impounding officer. (Penal Code § 597.1(i). This bill instead clarifies that the animal shall be deemed abandoned and becomes property of the seizing agency. Existing law provides that no animal properly seized under this section or pursuant to a search warrant shall be returned to its owner until, in the determination of the seizing agency or hearing officer, the animal is physically fit or the owner can demonstrate to the seizing agency's or hearing officer's satisfaction that the owner can and will provide the necessary care. (Penal Code § 597.1(j).) This bill provides instead that no animal seized under this section or pursuant to a search warrant shall be returned to its owner until the owner can demonstrate to the satisfaction of the seizing agency or hearing officer that the owner can (More) SB 1500 (Lieu) Page 8 and will provide the necessary care and does not present a danger to the animal. This bill creates a new subdivision (k) stating prior to the final disposition of any criminal charges, the seizing agency or prosecuting attorney may file a petition in a criminal action requesting that, prior to that final disposition, the court issue an order forfeiting the animal to the city, county or seizing agency. The petition shall serve a true copy of the petition upon the defendant and prosecuting attorney. Upon receipt of the petition, the court shall set a hearing on the petition and it shall be held within 14 days of the filing of the petition, or as soon as possible. The petition shall have the burden of establishing by a preponderance of the evidence that even in the event of an acquittal of the criminal charges, either: (A) the owner cannot or will not provide the necessary care for the animal in question; or (B) the owner will not legally be permitted to retain the animal in question. If the court finds that the petitioner has met its burden by establishing either of the above, the court shall order the immediate forfeiture of the animal as sought by the petition. 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 renumbers this subdivision to (l) and provides that (More) SB 1500 (Lieu) Page 9 in the event of the acquittal or final discharge without conviction of the person charged, if the animal is still impounded, the animal has not been previously deemed abandoned and the court has not ordered the animal to be forfeited, the court shall on demand direct the release of seized or impounded animals to the defendant upon a showing of all the following: Proof of ownership. Proof that all of the charges for the cost of seizure and care of the animal for the entire duration of the matter have been paid. Proof that the owner can legally retain and possess all animals in question. Existing law provides that a person convicted of specified misdemeanor animal abuse sections who owns, possesses, maintains, etc., an animal within 5 years of conviction is guilty of a public offense punishable by a fine of $1,000. (Penal Code § 597.9(a).) Existing law provides that a person convicted of specified felony animal abuse sections who owns, possesses, maintains, etc., an animal within 10 years of conviction is guilty of a public offense punishable by a fine of $1,000. (Penal Code § 597.9(b).) Existing law provides that in the cases of owners of livestock a court may, in the interest of justice, exempt a defendant from the prohibition of owning animals as it would apply to livestock, if the defendant files a petition with the court to establish that the imposition of the provisions of this section would result in substantial or 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. (Penal Code § 597.9 (c)(1).) This bill requires the livestock owner to establish by a preponderance of the evidence that the imposition would be a (More) SB 1500 (Lieu) Page 10 substantial or undue economic hardship. Existing law provides that a defendant may petition the court to reduce the duration of the mandatory ownership prohibition. At a hearing on the petition, the petitioner shall have the burden of establishing probable cause to believe all of the following: 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. He or she has successfully completed all classes or counseling ordered by the court. (Penal Code § 597.9 (d)(1).) This bill changes the burden to a preponderance of the evidence. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION ("ROCA") In response to the unresolved prison capacity crisis, since early 2007 it has been the policy of the chair of the Senate Committee on Public Safety and the Senate President pro Tem to hold legislative proposals which could further aggravate prison overcrowding through new or expanded felony prosecutions. Under the resulting policy known as "ROCA" (which stands for "Receivership/Overcrowding Crisis Aggravation"), the Committee has held measures which create a new felony, expand the scope or penalty of an existing felony, or otherwise increase the application of a felony in a manner which could exacerbate the prison overcrowding crisis by expanding the availability or length of prison terms (such as extending the statute of limitations for felonies or constricting statutory parole standards). In addition, proposed expansions to the classification of felonies enacted last year by AB 109 (the 2011 Public Safety Realignment) which may be punishable in jail and not prison (Penal Code section 1170(h)) would be subject to ROCA because an offender's criminal record could make the offender ineligible for jail and therefore subject to state prison. (More) SB 1500 (Lieu) Page 11 Under these principles, ROCA has been applied as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress towards reducing prison overcrowding by passing legislation which could increase the prison population. ROCA will continue until prison overcrowding is resolved. For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation. 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. Design capacity is the number of inmates a prison can house based on one inmate per cell, single-level bunks in dormitories, and no beds in places not designed for housing. Current design capacity in CDCR's 33 institutions is 79,650. On January 6, 2012, CDCR announced that California had cut prison overcrowding by more than 11,000 inmates over the last six months, a reduction largely accomplished by the passage of Assembly Bill 109. Under the prisoner-reduction order, the (More) SB 1500 (Lieu) Page 12 inmate population in California's 33 prisons must be no more than the following: 167 percent of design capacity by December 27, 2011 (133,016 inmates); 155 percent by June 27, 2012; 147 percent by December 27, 2012; and 137.5 percent by June 27, 2013. This bill does not aggravate the prison overcrowding crisis described above under ROCA. COMMENTS 1. Need for This Bill According to the author: SB 1500 has three primary goals. The first is to fix a loophole regarding the term "or" in Penal Code Section 597.1, that results in abused animals being returned to their owners under the sole condition that the animal is physically fit. Specifically, current law states that at a hearing conducted after the seizure of an animal, the animal may be returned to its owner if it is physically fit or if the owner demonstrates to the seizing agency or hearing officer that the owner can provide the necessary care and does not present a danger to the animal. The word "or" makes the physical fitness of the animal the sole necessary condition for the return of the animal. Because these hearings often take place weeks after the initial seizure, the seized animal has often been nursed back to health - thus, regardless of the owner's ability to care for/no longer abuse the animal, animal control agencies feel legally (More) SB 1500 (Lieu) Page 13 obligated to return the animal. The current in-print version of SB 1500 attempts to fix this loophole by changing the word "or" to "and" in order to make both the physical fitness of the animal and the owner's ability to care for it necessary criteria in order to return the animal. Amendments to SB 1500 will change this fix slightly by removing the physical fitness criterion altogether, and requiring return of the animal only if the seizing agency or hearing officer determines that the owner can and will provide the necessary care. (More) The second goal of the bill is to make clear the fiscal responsibilities and procedures associated with the costs of housing a seized animal. This bill modifies the term "costs" for seizing agencies to cover for the care and treatment of the animal by amending the language to cover the "full cost". This clarifying amendment eliminates any ambiguity as to what part the owner of the animal is required to pay and restates the Legislature's intent to place the financial responsibility with the owner. Also, this bill clarifies the lien procedure for payment that ensures collection of payment while also protecting the accused's right. The final goal of SB 1500 is to address problems of housing animals taken in as part of certain types of criminal proceedings. Current law stipulates that individuals or households may only own a certain number of specified animals. Other kinds of pet ownership are outlawed entirely. In cases where "hoarders," people who collect unlawful numbers of animals, or in cases where people own illegal exotic pets, even if the owner is eventually acquitted of criminal charges brought against them, they will not be legally allowed to keep (most of) their animals. However, since the animals are evidence in a criminal case, the shelter must continue to hold them until the cessation of criminal proceedings, and cannot adopt them to other owners or donate exotic animals to zoos. These seized animals take up valuable shelter space, and other healthy, adoptable animals that come to the shelter are often euthanized unnecessarily due to the lack of space. SB 1500 would change would allow an agency or prosecutor to request a hearing, during which a judge will determine whether, even in the event of an acquittal, either the owner cannot or will not provide the necessary care for the animals or that the owner will not legally be permitted to retain the animals in (More) SB 1500 (Lieu) Page 15 question. The agency or prosecutor would have the burden of establishing either of these points by a preponderance of the evidence. 2. Full Cost Generally, when an animal is seized because of suspected animal abuse or neglect, the owner of the animal is liable for caring and treatment of the seized animal. This bill clarifies that a person is liable for the "full" costs of the care and treatment. This bill also clarifies when a statement of charges shall be presented to the owner and how to keep the owner informed of any accruing charges while the case is still going on. 3. Return of the Animal Under existing law, a properly seized animal shall not be returned to its owner until the animal is physically fit or the owner can demonstrate to the seizing agency's or hearing officer's satisfaction that the owner can and will provide the necessary care. The sponsor states that the "or" is problematic especially since even injured or sick animals will have been taken care of and treated while in possession of the seizing authority. This bill would instead require that the owner demonstrate to the hearing officer that he or she can and will provide the necessary care to the animal and does not present a danger to the animal. This bill also provides for the return of an animal that has not been deemed abandoned or forfeited, if the defendant shows all of the following: Proof of ownership. Proof that all of the charges for the costs of seizure and care of the animal for the entire duration of the matter have been paid. Proof that the owner can legally retain and possess all SB 1500 (Lieu) Page 16 animals in question. 4. Burden of Proof for Reduction of Mandatory Ownership Prohibitions Existing law provides that people convicted of specified animal abuse offenses are prohibited from owning animals for a specified period of time. The law does allow a person to petition the court to exempt a person from the prohibitions if he or she is a livestock owner and his or her livelihood depends upon the ownership or shorten the time frame, if it is shown he or she can safely care for the animals in the future. This bill establishes the burden that must be shown by the petitioner as a preponderance of the evidence. 5. Post-seizure Hearing A person is entitled to a hearing after his or her animals are seized by a peace officer, humane officer or animal control officer. The law sets forth requirements for the hearing including notice to the owner and time frames for the hearing. This bill would clarify that if the animals were seized pursuant to a search warrant, the person is not entitled to a hearing. According to the sponsor, this is currently the practice when animals are seized by a search warrant. ***************