BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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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?
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(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
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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
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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
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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.
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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).)
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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
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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
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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
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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.
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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
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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
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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.
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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
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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
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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.
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