BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 243 (Nava)
As Amended June 22, 2009
Hearing date: July 2, 2009
Penal Code
MK:br
ANIMAL ABUSE: PENALTIES
HISTORY
Source: Los Angeles District Attorney's Office
Prior Legislation: None
Support: The Humane Society of the United States; City of West
Hollywood; American Society for the Prevention of
Cruelty to Animals; California Animal Association; The
Paw Project; Paw PAC; California Federation for Animal
Legislation; City of Long Beach; a number of
individuals
Opposition:California Grain and Feed Association; Pacific Egg
and Poultry Association; California Farm Bureau
Federation; Western United Dairymen; California Horse
Council; California Thoroughbred Breeders Association;
Professional Rodeo Cowboys Association; California
Cattlemen's Association; The Animal Council
Assembly Floor Vote: Ayes 65- Noes 12
KEY ISSUE
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SHOULD THE LAW PROVIDE THAT, WHEN A PERSON IS CONVICTED OF
SPECIFIED ANIMAL ABUSE PROVISIONS, AS PART OF THE SENTENCE THE
COURT ORDER THAT THE PERSON NOT OWN, POSSESS, MAINTAIN OR CARE
FOR ANY ANIMAL FOR A SPECIFIED PERIOD OF TIME?
PURPOSE
The purpose of this bill is to prohibit a person who has been
convicted of specified animal abuse crimes from owning or caring
for an animal for a specified period of time.
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
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
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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 $1000; 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
$5000; 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
to exceed six months; by a fine not to exceed $1000; 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
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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
subdivision 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 sets forth the procedure for seizure and
impoundment of an animal. (Penal Code 597.1 (f)-(j).)
This bill provides that if the owner has satisfied the lien for
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caring for a seized animal prior to the final disposition of any
criminal charges, the seizing agency or prosecuting attorney may
file a petition in the criminal action requesting that the court
order forfeiting the animal to the county or seizing agency
prior to final disposition of the criminal charge.
This bill provides that the court shall set a hearing on the
forfeiture provision within 14 days of the filing of the
petition.
This bill provides the petitioner shall have the burden of
establishing probable cause to believe that even in the event of
acquittal, the owner cannot and will not provide the necessary
care or that the owner will legally be permitted to retain any
of the animals in question. If the court finds that probable
cause exists, the court shall order immediate forfeiture of the
animal to the petitioner.
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 provides that if probation is granted, the court shall
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.
This bill provides that regardless of whether probation is
granted, the court shall require the convicted person to
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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.
This bill provides that in the event of the acquittal or final
discharge without conviction of the arrested person, if any of
the animals are still impounded because the animal or animals
have not previously been deemed abandoned or the lien has been
satisfied and the court has not previously ordered that any of
the animals be forfeited, the court shall, on demand, direct the
release of seized or impounded animals upon a showing of the
following:
Proof of ownership.
Proof that all charges for the cost of seizure
and care of the animals for the entire duration of
the matter has been paid.
Proof that the animals are physically fit and
that the owner has demonstrated to the seizing
agency or the court that the owner can and will
provide the necessary care.
Proof that the owner can legally retain and
possess all animals in question.
This bill provides that upon a conviction for a misdemeanor
violation of subdivision (a) or (b) of Section 597, or of
Section 597a, 597b, 597h, 597j, 597s, or 597.1, the court shall,
in addition to any other sentence or penalty imposed, enter an
order enjoining the person from owning, possessing, maintaining,
having custody of, residing with, or caring for any animal for a
period of not less than five years.
This bill provides that upon a conviction for a felony violation
of subdivision (a) or (b) of Section 597, or of Section 597b or
597.5, the court shall, in addition to any other sentence or
penalty imposed, enter an order enjoining the person from
owning, possessing, maintaining, having custody of, residing
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with, or caring for any animal for a period of not less than 10
years.
This bill provides that any person who is convicted of violating
an order issued under this section is guilty of a public
offense, which shall be punished by imprisonment in a county
jail not exceeding one year, by a fine not exceeding $1000, or
by both that imprisonment and fine.
This bill provides that the court may, in the interest of
justice, exempt a defendant from the provisions of this section
if the defendant files a petition with the court requesting a
hearing in which the defendant shall have the burden of
establishing that the imposition of the provisions of this
section would result in severe or undue economic hardship to the
defendant's livelihood and that the defendant has the ability to
properly care for all animals in his or her possession.
This bill provides that the petitioner shall serve a true copy
of the petition upon the court and the prosecuting attorney 10
calendar days prior to the requested hearing. Upon petition
from the defendant, the court shall set a hearing on the
petition. The hearing shall be conducted within 30 days after
the filing of the petition.
This bill provides that the defendant may petition the court to
reduce the duration of the mandatory ownership prohibition. The
petitioner shall serve a true copy of the petition upon the
court and the prosecuting attorney 10 calendar days prior to the
requested hearing. Upon a petition from the defendant, the
court shall set a hearing on the petition. The hearing shall be
conducted within 30 days after the filing of the petition. At
this hearing, 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.
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This bill provides that if the petitioner has met his or her
burden, the court may reduce the mandatory ownership prohibition
and may order that the defendant comply with reasonable and
unannounced inspections by animal control agencies or law
enforcement.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
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
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
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requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
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 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
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<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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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
dogfighting 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
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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."
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. Prohibition from Possession of Animal after Abuse Conviction
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This bill provides that if a person is convicted of specified
misdemeanor animal abuse statutes, in addition to any other
sentence the court shall enter an order enjoining the person
from owning, possessing, maintaining, having custody of,
residing with, or caring for any animal for a period of not
less than five years. If the person is convicted of specified
felony animal abuse statutes then the court shall make the same
order for not less than 10 years. A violation of the order
would be a misdemeanor.
The court may find in the interest of justice, that the order
would cause economic hardship on the person and that the person
has the ability to properly care for all animals in his or her
possession. According to amendments to be offered by the
author, the court shall grant the exemption unless the
prosecuting attorney shows by preponderance that either there is
not economic hardship or the person cannot care for the animals
they have. (See Comment #3 below for amendments.)
Supporters of this bill argue a link between animal abusers and
domestic violence, elder abuse and child abuse. They further
argue that people who have demonstrated that they cannot care
for animals should not be permitted to keep animals.
Specifically the sponsor, the Los Angeles District Attorney's
Office, states:
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."
Additionally, there is an uncontroversial link between
animal abuse and domestic violence, elder abuse and
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child abuse, with animals often used as a tool to
intimidate, silence, or extract compliance from the
abuser's victims.
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3. Amendments to be Offered by the Author in Committee
The recent amendments that are in print and the following
amendments which will be offered by the author in Committee are
intended to address some of the concerns raised by the
opposition regarding a person who makes his or her living
raising livestock or other animals who obtains a conviction for
animal abuse under California's complex laws potentially losing
his or her livelihood. The amendments are:
On Page 11, line 34 after the word (a) insert
Except as provided in subdivision (d) or (e)
On Page 11, line 34 delete the word "Upon"
On Page 12, line 1 after the word (b) insert
Except as provided in subdivision (d) or (e)
On Page 12, line 1 delete the word "Upon"
On Page 12, line 13 after the word "the" insert
injunction required under subdivision (a) or (b)
On Page 12, line 13 delete "provisions of this
section"
On Page 12, lines 14-15 delete "requesting a
hearing in which the defendant shall have the
burden of"
On Page 12, line 16 delete the word "severe" and
insert substantial
On Page 12, line 18 after the word "animals"
insert ,as defined in Food and Agricultural Code
Section 14205,
On Page 12, line 23 after the word "petition."
insert:
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The court shall grant the petition for exemption
from subdivision (a) or subdivision (b) unless the
prosecuting attorney shows by a preponderance of
the evidence that either of the criteria for
exemption under subdivision (d) are untrue.
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