BILL ANALYSIS Ó SB 1500 Page 1 Date of Hearing: June 19, 2012 Counsel: Sandy Uribe ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair SB 1500 (Lieu) - As Amended: June 13, 2012 As Proposed to be Amended in Committee SUMMARY : Allows pre-conviction forfeiture of a defendant's seized animals in animal abuse and neglect cases. Specifically, this bill : 1)Clarifies that when costs are owed for the care and treatment of a seized animal, they are "full" costs. 2)Clarifies that when an animal is deemed abandoned, it becomes the property of the seizing agency, and deletes language stating that the impounding officer may dispose of the animal. 3)Allows a seizing agency or a prosecutor, in the case of adoptable cats and dogs, to file a petition requesting pre-conviction forfeiture of the animal the pending criminal case and requesting that the court order the animal forfeited prior to final disposition of the criminal charges. 4)Requires the prosecutor or seizing agency to serve a true copy of the pre-conviction forfeiture petition on the defendant and the prosecuting attorney. 5)Requires the court to set a hearing on the pre-conviction forfeiture petition within 14 days after filing or as soon as practicable. 6)Requires the court to order immediate forfeiture of an animal during the pendency of a criminal proceeding if the petitioner establishes beyond a reasonable doubt that the owner will not legally be permitted to retain the animal in question even in the event of an acquittal of criminal charges. 7)Specifies that nothing in this section is intended to authorize a seizing agency or prosecutor to file a post-conviction petition to determine an owner's ability to SB 1500 Page 2 legally retain an animal if a pre-conviction forfeiture petition previously has been filed. 8)Changes the defendant's burden of proof at a hearing on a petition for reduction of an ownership prohibition or a livestock owner economic hardship exception to "preponderance of the evidence." 9)Makes technical, non-substantive changes. EXISTING LAW : 1)States it is 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 to maliciously or intentionally kill an animal. ĘPenal Code Section 597(a).] 2)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. ĘPenal Code Section 597(b).] 3)States that ever person who willfully abandons any animal is guilty of a misdemeanor. (Penal Code Section 597s.) 4)Provides that any peace officer, humane society officer, or animal control officer shall take possession of a 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. ĘPenal Code Section 597.1(a).] 5)States that the owner of a seized animal is liable for the cost of caring and treating the animal, that these costs will SB 1500 Page 3 be considered a lien on the animal, and that the animal will not be returned until the charges are paid. ĘPenal Code Section 597.1(a), (b), and (c).] 6)Provides if the charges for the seizure or impoundment and any other permitted charges 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 and take possession of the animal, the animal shall be deemed to have been abandoned. ĘPenal Code Section 597.1(h).] 7)Specifies that the owner of an animal that has been seized has the right to request a post-seizure hearing to determine the validity of the seizure. ĘPenal Code Section 597.1(f).] 8)Specifies that the owner of an animal has the right to hearing before an animal is seized when the need for the animal's immediate seizure is not present. ĘPenal Code Section 597.1(f).] 9)Sets forth the notice requirements and the procedures for animal-seizure hearings. ĘPenal Code Section 597.1(f) and (g).] 10)Disallows the return of a seized animal to the owner until the seizing agency or hearing officer determines that the animal is physically fit or until the owner shows to the satisfaction of the hearing officer or seizing agency that the owner can and will provide necessary care. ĘPenal Code Section 597.1(j).] 11)Provides that any person convicted of a misdemeanor violation of specified sections relating to animal cruelty and who, within five years of conviction, owns, possesses, maintain, has custody of, resides with or cares for any animal is guilty of a public offense, punishable by a fine of $1,000. ĘPenal Code Section 597.9(a).] 12)Provides that any person convicted of a felony violation of specified sections relating to animal cruelty and who, within 10 years of the conviction owns, possesses, maintains, has custody of, resides with or cares for any animal is guilty of a public offense, punishable by a fine of $1,000. ĘPenal Code Section 597.9(b).] SB 1500 Page 4 13)Creates an exception for the animal-ownership injunction for livestock owners who can establish that the restriction 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. ĘPenal Code Section 597.9(c)(1).] 14)Allows a convicted person to petition the court for a reduction to the duration of the prohibition by showing that he or she does not present a danger to animals, has the ability to properly care for all animals in his or her possession, and has successfully completed all court-ordered classes and counseling. ĘPenal Code Section 597.9(d)(1).] 15)Gives the court discretion, in the event the length of the mandatory ownership prohibition is reduced, to order that the defendant comply with reasonable and unannounced inspections by animal control or law enforcement. ĘPenal Code Section 597.9(d)(2).] FISCAL EFFECT : Unknown COMMENTS : 1)Author's Statement : 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 obligated to return the animal. SB 1500 attempts to fix this loophole by removing the physical fitness provision and making the owner's ability to care for the animal the only necessary criterion in SB 1500 Page 5 order to return the animal. "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. "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 question. The agency or prosecutor would have the burden of establishing either of these points by a preponderance of the evidence." 2)Pre-Conviction Forfeiture Proceedings : Under current law, seized animals are usually housed until criminal proceedings are resolved. This bill allows the seizing agency or prosecutor to file a petition in a pending criminal action for forfeiture of the seized animal. The court can order the immediate forfeiture of the seized animal before the final disposition of the criminal case, if the prosecutor or seizing agency establishes by a preponderance of the evidence, that SB 1500 Page 6 even in the event of an acquittal, the owner will not legally be permitted to retain the animal in question. In this respect the pre-conviction forfeiture provisions of this bill are similar to old standards for drug-asset forfeiture. Before California's drug forfeiture laws were reformed in 1994 by AB 114 (Burton), Chapter 314, Statutes of 1994, forfeiture did not need to be based on a criminal conviction and could be proved by a preponderance of the evidence. According to the Senate Judiciary Committee analysis, the author of AB 114 stated, "Existing asset forfeiture statutes are susceptible to abuse. Innocent people have all too frequently lost their property without due process. The purpose of this bill is to put in place necessary protections to ensure that people's property rights, and due process rights, are protected." Currently in drug forfeiture cases, it is generally a condition precedent to forfeiture that a defendant be convicted. The provisions of this bill are at odds with current law on animal fighting forfeiture proceedings. (Penal Code Section 598.1.) In criminal cases involving dogfighting or cockfighting, the prosecutor may, in conjunction with the criminal proceeding, file a petition of forfeiture with the superior court of the county in which the defendant has been charged with the commission of those crimes that shall allege that the defendant has committed those crimes and the property is forfeitable. ĘPenal Code Section 598.1(a) and (c).] The forfeiture proceedings are set for hearing in the superior court in which the underlying charges are set to be tried. ĘPenal Code Section 598.1(f)(1).] Then, if the defendant is found guilty of the underlying offense, the issue of forfeiture is promptly tried. ĘPenal Code Section 598.1(f)(2).] At the forfeiture hearing, the prosecutor has the burden of establishing beyond a reasonable doubt (not preponderance of the evidence as in this bill) that the defendant was engaged in the prohibited crimes. ĘPenal Code Section 598.1(g).] Existing law also permits the seizure of any animals used in fighting as well as all paraphernalia, implements or other property or things used or employed, or about to be employed in violation of any bird or animal fighting statute. Upon conviction, the seized property shall be deemed forfeited. (Penal Code Section 599aa.) SB 1500 Page 7 Arguably the framework of current law pertaining to forfeiture proceedings in animal fighting cases may not be effective in cases involving the hoarding of adoptable cats and dogs that are allegedly abused or neglected. The longer the cats and dogs stay caged at a shelter, the less adoptable they become, thereby increasing the possibility the animals have to be euthanized. 3)Background on Procedures for Seizing Animals : An animal can be seized in several different ways. First, a peace officer, humane society officer, or animal control officer can seize a stray or abandoned animal. ĘPenal Code Section 597.1(a) and (b).] Additionally, when an officer has reasonable grounds to believe that very prompt action is required to protect the health or safety of an abandoned, stray, sick or infirm, or cruelly treated animal, or the health and safety of others, the officer is required to immediately seize the animal. (Ibid.) Authorities can also obtain a warrant upon a showing of probable cause, and then seize the animal pursuant to the warrant. (See e.g., Penal Code Section 599a.) In these three instances, the owner is afforded the right to a post-seizure hearing to determine the validity of the seizure or impoundment or both. ĘPenal Code Section 597.1(f).] Finally, if animal control observes unsuitable conditions, but these conditions do not rise to the level of exigent circumstances (i.e., the need for immediate seizure is not present), a pre-seizure hearing occurs before the animal can be seized and before criminal proceedings for animal abuse or neglect commence. ĘPenal Code Section 597.1(g).] In this situation, the owner must produce the animal at the time of the hearing unless before the hearing he or she allowed the agency to view the animal, or unless the owner can provide verification that the animal was already humanely destroyed. (Ibid.) 4)Argument in Support : According to the Los Angeles District Attorney's Office , (the sponsor of this bill), "SB 1500 addresses existing deficiencies in California's animal neglect criminal statute that currently allows animals to be returned to abusive owners and results in many adoptable pets having to being euthanized because of crowding. SB 1500, which makes a number of technical amendments to Penal Code Section 597.1, has two major components. SB 1500 Page 8 "First, under PC §597.1 if an animal is seized because the officer believes that immediate action is required to protect the health and safety of the animal or the health and safety of others, the owner is entitled to a post-seizure hearing. The purpose of the hearing is to determine the validity of the seizure and whether the animal should be returned to the owner. Existing law states the animal shall be returned to its owner if 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. "Every week across the state animal control agencies return animals to owners who have mistreated their animals due to existing language in PC §597.1. Because of the use of the word "or", hearing officers are placed in the position of being forced to return an animal to the person who caused it to be in such a condition that an officer felt that prompt action was needed to save the animal because the shelter had nursed the animal back to health, knowing that the person was either unwilling or incapable of providing the necessary care. The usage of the term 'or' has resulted in many animals being returned to the same harmful environments with their abusers. "SB 1500 amends existing law so that an animal shall not be returned to its owner '?until the charges are paid and the owner demonstrates to the seizing agency or hearing officer's satisfaction that the owner can and will provide the necessary care for the animal.' "Second, SB 1500 would allow a seizing agency or a prosecutor to file a petition in the criminal action requesting that the court issue an order forfeiting the animal to the county or seizing agency prior to final disposition of the criminal charge. "Currently, if an owner does not voluntarily relinquish their animal to the seizing agency, the agency is forced to keep the animal until the criminal case is resolved - even when the defendant will not ever be able to keep the animal - even if acquitted. "For example, in the case of hoarders where large numbers of SB 1500 Page 9 animals are seized at one time, an agency can be forced to house literally hundreds of animals. This creates a huge drain on an agency's resources. Because most cities and counties have legal limits on the number of animals a person may have on their property, hoarders will never be able to get all of their animals back. "SB 1500 would allow an agency or prosecutor to request a hearing, during which a judge will determine whether, even in the event of an acquittal, the owner will not legally be permitted to retain the animal(s) in question. The agency or prosecutor would have the burden of establishing either of this point by a preponderance of the evidence. "This provision not only helps the seized animals find a safe and happy home sooner but also benefits the other animals in shelters who would otherwise have to be euthanized if there was not enough space to care and house them at a shelter. "SB 1500 also 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." 5)Argument in Opposition : According to the California Federation of Dog Clubs , "This bill would allow for unprecedented abuse by agencies empowered with animal seizure authority. Public or private agencies would be granted the status of judge, jury, and executioner in cases related to animals. Animal owners will be subject to capricious deprivation of their constitutional right to maintain ownership of their property. Even animal owners who are acquitted of the charges against them may be denied the return of their animal, depending on the whim of the seizing agency. We can bet that agents who have already decided that animals need to be removed from an owner's care will not be willing to return those animals even in the case of subsequent dismissal." 6)Related Legislation : a) AB 1117 (Smyth), Chapter 553, Statutes of 2011, made SB 1500 Page 10 changes to the penalties in animal abuse and neglect cases as well as in animal-seizure proceedings. b) SB 917 (Lieu), Chapter 131, Statutes of 2011, increased the misdemeanor penalty for animal neglect in order to conform it to other provisions of law relating to animal abuse, and made it a crime to sell any live animal on a street, parking lot, carnival, or board walk. c) SB 425 (Calderon), Chapter 562, Statutes of 2011, increased the fine for various animal fighting offenses and applied existing forfeiture proceedings for dog fighting to cockfighting. 7)Prior Legislation : a) AB 243 (Nava), of the 2009-10 Legislative Session, sought to establish a period prohibiting animal ownership after a misdemeanor or felony conviction of animal abuse. AB 243 was vetoed. b) SB 318 (Calderon), Chapter 302, Statutes of 2009, provided for the forfeiture of any property interest that was either acquired through the commission of dogfighting, or used to promote, further or facilitate dogfighting. REGISTERED SUPPORT / OPPOSITION : Support Los Angeles District Attorney's Office (Sponsor) California District Attorneys Association City of Long Beach Humane Society of the United States Opposition American Herding Breed Association California Federation of Dog Clubs California Responsible Pet Owners Coalition One private individual Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744 SB 1500 Page 11