BILL ANALYSIS
AB 243
Page 1
Date of Hearing: April 14, 2009
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 243 (Nava) - As Amended: April 13, 2009
SUMMARY : Creates a misdemeanor against any person convicted of
animal abuse who, thereafter, owns, possesses, maintains, has
custody of, resides with, or cares for any animal within a
specified period. Specifically, this bill :
1)Provides that any person who has been convicted of a
misdemeanor violation of specified sections relating to animal
cruelty and who, within five 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
imprisonment in a county jail not exceeding one year; by a
fine of not more than $1,000; or by both that imprisonment and
fine.
2)Provides that any person who has been 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
imprisonment in a county jail not exceeding one year; by a
fine of not more than $1,000; or by both that imprisonment and
fine.
EXISTING LAW :
1)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
AB 243
Page 2
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 Section 597.1(k).]
2)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 Section 597(a).]
3)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 Section 597(b).]
4)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 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 therefor 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 Section 597a.)
5)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 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 Section 597b(a).]
AB 243
Page 3
6)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 aid 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 Section 597b(b).]
7)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 Section 597h.)
8)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 exceed six
months; by a fine not to exceed $1,000; or by both. (Penal
Code Section 597j.)
9)States that ever person who willfully abandons any animal is
guilty of a misdemeanor. (Penal Code Section 597s.)
10)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 Section 597.1.)
11) 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:
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 the amusement or gain, causes any dog to fight with
another dog, or causes any dogs to injure each other.
c) 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 Section 597.5.)
AB 243
Page 4
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Those who have
neglected animals have demonstrated that they cannot be
trusted to provide animals in their care with the basics
required by law. In the case of overt cruelty, defendants
convicted of purposely harming an animal have demonstrated
that they are capable of violence toward an animal. And, in
the case of animal fighting, those convicted of participating
in dog or cockfighting have demonstrated a lack of regard for
an animal's welfare and a lack of concern for the suffering
that is associated with animal 'blood sports.' "
"The recidivism rate of animal cruelty and neglect crimes is,
according to most studies, virtually 100%. As with laws that
prevent sex offenders from having contact with underage
children, a law prohibiting abusers from contact with animals
will separate offenders from potential new victims.
"AB 243 will make it mandatory for a judge to prohibit a person
convicted of specified animal-related crimes from owning or
possessing, caring for, or having any contact with animals for
a minimum period of time. This measure will also give a
prosecutor the option of either asking that a defendant's
probation be violated or filing a separate misdemeanor
criminal charge for defendants who violate their 'no
ownership' order. By requiring this order, there will be a
dramatic reduction or elimination of repeated acts of animal
cruelty and neglect in California."
2)Background : According to information provided by the author,
"Currently, California Penal Code Section 597.1(k) states that
as a condition of probation, a court may order that a person
convicted of certain animal related crimes and placed on
probation be prohibited from owning, possessing, or having
contact with animals. However, a court has no ability to
issue a 'no ownership' order for defendants convicted of
felony animal cruelty offenses who are sentenced to state
prison.
"The deficiencies in this law are numerous. First, prohibiting
ownership of an animal for a certain period of time following
AB 243
Page 5
a conviction of animal cruelty should be mandatory rather than
optional. Defendants convicted of mistreating animals have
demonstrated that they are incapable or unwilling to care for
animals properly and, therefore, should not be permitted to
own animals for a defined period of time following their
conviction.
"Second, as it stands, once a defendant is off probation, a
judge has no jurisdiction or authority to order a defendant
not to own, possess, or reside with animals, despite the fact
that in some cases, it may be appropriate that a defendant be
ordered not to possess animals for a period longer than the
time he/she will be on probation. AB 243 will allow a court
to extend the 'no ownership' prohibition beyond the
probationary period.
"Third, a judge loses his/her jurisdiction - and all ability to
order a defendant to do anything, including issuing a 'no
ownership' order - once a defendant is sent to prison. The
sentencing scheme for felony animal cruelty is 16 months, 2
years, 3 years; an offender would serve half the amount of
that time in prison. If a defendant's crime was serious
enough to warrant a prison sentence, he/she would be
prohibited from owning animals following release from custody.
AB 243 will give a court the ability to issue a 'no
ownership' order to those defendants who have been sentenced
to prison.
"Finally, California law allows for an optional 'no ownership'
prohibition only in cases where a defendant has been convicted
of three particular crimes. There are several animal-related
crimes currently not listed as candidates for the probationary
"no contact" condition that clearly should be included, such
as dog fighting and cock fighting. AB 243 applies to all
appropriate and relevant animal-related crimes.
"Currently, seven other jurisdictions (Delaware, Kansas,
Nebraska, Oregon, Washington, West Virginia, U.S. Virgin
Islands) have laws that make it mandatory for a court to
prohibit ownership of animals following a conviction for an
animal-related offense. These laws vary in the length of time
a convicted person cannot own an animal; most have a floor of
5 years and a ceiling of 15 years, although one law (U.S.
Virgin Islands) allows a court to prohibit ownership of an
animal 'up to the lifetime of the offender.' "
AB 243
Page 6
3)Prohibiting Pet Ownership beyond the Period of Probation :
"Probation is generally reserved for convicted criminals whose
conditional release into society poses minimal risk to public
safety and promotes rehabilitation. The sentencing court has
broad discretion to determine whether an eligible defendant is
suitable for probation and, if so, under what conditions. The
primary goal of probation is to ensure '[t]he safety of the
public ? through the enforcement of court-ordered conditions
of probation.' (Pen. Code, 1202.7.)" [People v. Carbajal
(1995) 10 Cal.4th 1114, 1120.] Accordingly, the Legislature
has empowered the court, in making a probation determination,
to impose any "reasonable conditions, as it may determine are
fitting and proper to the end that justice may be done, that
amends may be made to society for the breach of the law, for
any injury done to any person resulting from that breach, and
generally and specifically for the reformation and
rehabilitation of the probationer. . . . " [Penal Code
Section 1203.1(j).]
Although a trial court's discretion is broad, California courts
have held that a condition of probation must serve a purpose
specified in Penal Code section 1203.1. [Carbajal, supra, 10
Cal.4th at p. 1121; People v. Richards (1976) 17 Cal.3d 614.]
"A condition of probation will not be held invalid unless it
'(1) has no relationship to the crime of which the offender
was convicted, (2) relates to conduct which is not in itself
criminal, and (3) requires or forbids conduct which is not
reasonably related to future criminality . . . . '
Conversely, a condition of probation which requires or forbids
conduct which is not itself criminal is valid if the conduct
is reasonably related to the crime of which the defendant was
convicted or to future criminality." [People v. Lent (1975)
15 Cal.3d 481, 486.]
This bill creates a new misdemeanor which punishes persons who
own, possess, maintain, have custody of, reside with, or care
for any animal within a specified period. Essentially, this
bill also allows a judge to prohibit animal ownership for up
to five years upon a misdemeanor conviction of animal abuse
and up to 10 years for a felony conviction of animal abuse.
As stated above, judges possess broad sentencing discretion.
Thus, a judge may place restrictions upon animal ownership
since it is related to the underlying offense, i.e. animal
abuse. In addition, the author of this bill asserts that
AB 243
Page 7
there is a high recidivism rate among those convicted of
animal abuse; thus, it may be argued that the condition
restricting ownership post probation is reasonably related to
future criminality.
4)Argument in Support : According to the American Society for
the Prevention of Cruelty to Animals , "Studies have documented
a link between animal abuse and domestic violence with
perpetrators often abusing animals in order to intimidate,
harass, or silence their human victims. In addition, animal
'hoarders' have been known to collect too many animals than
they can adequately care for, causing the animals to suffer
and live in squalid conditions. The recidivism rate for
hoarders is considered to be 100%.
"Persons convicted of intentional abuse and individuals
convicted of animal neglect should not be allowed to own
animals the moment they are released from prison. AB 243 will
go far in reducing repeated acts of cruelty against animals."
5)Argument in Opposition : According to the Animal Council ,
"This bill would amend Penal Code Section 597.1, amended to be
a mandate rather than a county elected option with the 1997
Hayden bill, SB 1785, inexplicably. This bill would delete a
paragraph covering post-adjudication provisions protecting
individuals to mandate a number of post-conviction (designated
offense) restrictions on owning or caring for animals. This
would remove all judicial discretion as to these
post-conviction issues, and as introduced, deletes the
provision for return or disposition of animals following
acquittal or non-conviction. For these reasons, we oppose AB
243 as excessively punitive and removing judicial discretion
to protect the rights of individuals."
6)Related Legislation :
a) AB 241 (Nava) makes it a misdemeanor for an individual
or business that buys or sells dogs or cats to have more
than a combined total of 50 dogs and cats with intact
sexual organs, as specified. AB 241 is scheduled to be
heard by this Committee today.
b) AB 242 (Nava) makes it a felony punishable by 16 months,
2 or 3 years in the state prison for any person convicted
of being knowingly present as a spectator at any place,
AB 243
Page 8
building, or tenement where preparations are being made for
an exhibition of the fighting of dogs with the intent to be
present at that exhibition. AB 242 is scheduled to be
heard by this Committee today.
7)Prior Legislation :
a) SB 353 (Kuehl), Chapter 205, Statutes of 2008, allows a
court to protect an animal in a domestic violence
protective order.
b) SB 1991 (O'Connell), Chapter 450, Statutes of 1999,
requires counseling as a condition of probation for any
person convicted of killing, maiming or abusing an animal.
REGISTERED SUPPORT / OPPOSITION :
Support
American Society for the Prevention of
Cruelty to Animals
Council of the City of Fresno
Los Angeles County District Attorney's Office
Paw PAC
One private individual
Opposition
Animal Council
California Federation of Dog Clubs
United States Society for the Prevention
of Cruelty to Others
We the People for Pets
One private individual
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744