BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 708|
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THIRD READING
Bill No: AB 708
Author: Huffman (D), et al
Amended: 8/19/09 in Senate
Vote: 21
SENATE NATURAL RES. & WATER COMMITTEE : 11-0, 6/23/09
AYES: Pavley, Cogdill, Benoit, Hollingsworth, Huff, Kehoe,
Leno, Padilla, Simitian, Wiggins, Wolk
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 77-0, 5/21/09 (Consent) - See last page
for vote
SUBJECT : Fish and wildlife: poaching
SOURCE : Author
DIGEST : This bill establishes minimum fines and
increases maximum fines for the illegal or excessive take
of wildlife or torture of wildlife.
ANALYSIS : Existing law provides that the knowing
unlawful taking for commercial purposes of a mammal, bird,
amphibian, reptile, fish, or any other species in violation
of this code is an offense punishable by imprisonment in
the county jail for not more than one year, by a fine of
not more than $30,000, or by both that imprisonment and
fine. This subdivision does not apply to a person issued a
commercial fishing license pursuant to Section 7852 who
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takes finfish in an amount that is less than 1,000 pounds
more than the amount of fish authorized by the applicable
statute or regulation.
Existing law provides that the knowing unlawful possession
for commercial purposes of any part of a mountain lion,
bear, wild pig, bighorn sheep, elk, antelope, or deer, a
pelt of a furbearing mammal, a live reptile or amphibian,
any fully protected, threatened, or endangered species, or
any quantity of fish or shellfish in excess of the quantity
permitted by other provisions of this code is an offense
punishable by imprisonment in the county jail for not more
than one year, by a fine of not more than $30,000, or by
both that imprisonment and fine. This subdivision does not
apply to a person issued a commercial fishing license
pursuant to Section 7852 or a commercial fish business
license pursuant to Article 7 (commencing with Section
8030) of Chapter 1 of Part 3 of Division 6 who possesses
finfish in an amount that is less than 1,000 pounds more
than the amount of finfish authorized by the applicable
statute or regulation.
Existing law provides that the knowing unlawful sale in
violation of this code for commercial purposes, or the
unlawful possession with the intent to sell in violation of
this code, of any part of, or product made from, any
wildlife is an offense punishable by imprisonment in the
county jail for not more than one year, by a fine of not
more than $30,000, or by both that imprisonment and fine.
This subdivision applies only to a person who knowingly
acquires for commercial purposes any part of, or product
made from, any unlawfully taken wildlife.
Existing law provides that whenever a second or subsequent
violation of subdivision (a), (b), or (c) also involves a
violation of specified sections prohibiting "gill nets"
which is punishable by a wobbler under subdivision (b) of
Section 12004, the offense shall be punishable by a fine of
not more than $30,000, or by imprisonment pursuant to
subdivision (b) of Section 12004, or by both that fine and
imprisonment.
Existing law provides that whenever a second or subsequent
violation of subdivision (a), (b), or (c) also involves a
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violation of Section 4758 which is punishable pursuant to
subdivision (a) of Section 12005, the offense shall be
punishable by a fine of not more than $30,000, or by
imprisonment pursuant to subdivision (a) of Section 12005,
or by both that fine and imprisonment.
Existing law provides that notwithstanding Section 802 of
the Penal Code, prosecution of an offense punishable under
this section shall be commenced within three years after
commission of the offense.
Existing law uses the following definitions:
1. "Commercial purposes" means import, export, sale,
purchase, barter, trade, exchange, or possession for
profit or personal gain.
2. "Fish" means fish as defined by Section 45.
3. "Wildlife" means wildlife as defined by Section 711.2.
This bill redrafts the existing Fish and Game Code Section
12012 providing instead that any person who illegally
takes, possesses, imports, exports, sells, purchases,
barters, trades, or exchanges any amphibian, bird, fish,
mammal, or reptile or part thereof, for profit or personal
gain is guilty of a misdemeanor punishable by a fine of not
less than $5,000 ($18,500 with penalty assessments), nor
more than $40,000 ($148,000 with penalty assessments), or
imprisonment in the county jail for not more than one year,
or by both fine and imprisonment.
This bill further provides that if a person is convicted of
a second or subsequent violation of Section 12012, that
person shall be punished by a fine of not less than $10,000
($37,000 with penalty assessments), nor more than $50,000
($185,000 with penalty assessments).
This bill increases the fine to for a second or subsequent
violation of Section 12012 and specified violations
involving "gill nets" to up to $50,000 ($185,000 with
penalty assessments).
Existing law specifies what expenditures from the fish and
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wildlife propagation fund of any county may be used on.
This bill provides that moneys equivalent to 50 percent of
the revenue deposited in the Fish and Game Preservation
Fund from fines and forfeitures collected pursuant to this
section shall be allocated for the support of the Special
Operations Unit of the Department and used for law
enforcement purposes.
This bill provides that moneys equivalent to 50 percent of
the revenue from any fine or forfeiture collected pursuant
to this section shall be paid to the county in which the
offense was committed, pursuant to Section 13003 of the
Fish and Game Code. The board of supervisors shall first
use revenues pursuant to this subdivision to reimburse the
costs incurred by the district attorney or city attorney in
investigating and prosecuting the violation. Any excess
revenues may be expended in accordance with Section 13103.
Existing law provides that in addition to any other penalty
prescribed by law, any person convicted of a violation
punishable under subdivision (a) of Section 12012 relating
to wildlife, except fish, is prohibited from thereafter
taking wildlife, except fish, in this state for a period of
not less than one year from the date of conviction. In
determining the length of the prohibition imposed pursuant
to this subdivision, the court shall take into
consideration the gravity of the offense for which the
person was convicted, including, but not limited to,
whether the species was illegally taken for commercial
purposes, the magnitude of the offense, damage to the
species as a resource in the geographic area where taken,
previous convictions for violations of this code, and the
motivation of the person convicted. Any license, permit,
tag, stamp, or other entitlement to take or possess
wildlife, except fish, for any purpose other than for
commercial purposes that has previously been issued to that
person shall be immediately revoked by the court and that
person, during the period of the prohibition, shall not
apply for a license, permit, tag, stamp, or other
entitlement to take or possess wildlife, except fish, for
any purpose other than for commercial purposes.
Existing law provides that in addition to any other penalty
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prescribed by law, any person convicted of a violation
punishable under subdivision (a) of Section 12012 relating
to fish is prohibited from thereafter taking or possessing
fish in this state for a period of not less than one year
from the date of conviction. In determining the length of
the prohibition imposed pursuant to this subdivision, the
court shall take into consideration the gravity of the
offense for which the person was convicted, including, but
not limited to, such factors as whether the species was
illegally taken for commercial purposes, the magnitude of
the offense, damage to the species as a resource in the
geographic area where taken, previous convictions for
violations of this code, and the motivation of the person
convicted. Any license, permit, tag, stamp, or other
entitlement to take or possess fish for any purpose other
than for commercial purposes that has previously been
issued to that person shall be immediately revoked and that
person, during the period of the prohibition, shall not
apply for a license, permit, tag, stamp, or other
entitlement to take or possess fish for any purpose other
than for commercial purposes. As used in this section,
"commercial purposes" means for profit or personal gain,
"fish" means fish as defined by Section 45, and "wildlife"
means wildlife as defined by Section 711.2.
Existing law provides that Section 12013 of the Fish and
Game Code does not apply to any person who is licensed to
take any fish or wildlife for commercial purposes and does
not supersede or otherwise affect any other provision of
this code or regulations adopted pursuant to this code
relating to issuing, suspending, or revoking licenses or
other entitlements to take, possess, buy, or sell wildlife
or fish for commercial purposes.
This bill repeals the existing provisions in Section 12013
of the Fish and Game Code.
This bill provides that notwithstanding any other provision
of this code, except as specified, any person who illegally
takes or possesses in the field more than three times the
daily bag limit, or who illegally possesses more than three
times the legal possession limit, of fish, reptiles, birds,
amphibians, or mammals is guilty of a misdemeanor and shall
be subject to a fine of not less than $5,000 (plus penalty
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assessments equals $18,500), nor more than $40,000 (plus
penalty assessments equals $148,000), or imprisonment in
the county jail for not more than one year, or by both that
fine and imprisonment.
This bill provides that a person convicted of a second or
subsequent violation of the offense described above, that
person shall be punished by a fine of not less $10,000
(plus penalty assessments equals $37,000), nor more than
$50,000 (plus penalty assessments equals $185,000), or
imprisonment in the county jail for not more than one year,
or by both that fine and imprisonment.
This bill provides that any person who maliciously and
intentionally maims, mutilates, or physically tortures any
fish, reptile, bird, amphibian, or mammal provided for in
this code is guilty of a crime punishable as described
above.
This bill provides that nothing in these provisions affects
any legal hunting, fishing, or trapping activity,
including, but not limited to, efforts to dispatch a
wounded mammal, bird, or fish taken legally.
This bill further provides that nothing in these provisions
prohibits a person from giving, receiving, or possessing
the legal possession limit of lawfully taken fish,
reptiles, birds, amphibians, or mammals.
This bill provides that nothing in this section prohibits a
person from giving, receiving, or possessing, at the
personal abode of the donor or donee, lawfully taken
migratory game birds that are not required to be tagged
pursuant to the federal Migratory Bird Treaty Act (16
U.S.C. Sec.703 et seq.) or regulations adopted pursuant to
that act.
This bill provides that this section does not supersede
Sections 12005, 12006.6, or 12009.
This bill provides that moneys equivalent to 50 percent of
the revenue from any fine collected pursuant to this
section shall be paid to the county in which the offense
was committed and provides that the board of supervisors
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shall first use revenues pursuant to this subdivision to
reimburse the costs incurred by the district attorney or
city attorney in investigating and prosecuting the
violation. Any excess revenues may be expended in
accordance with specified existing law.
Existing law provides that upon the third conviction of any
person of a violation of any provision of this code or
regulation adopted pursuant thereto relating to the taking
or possession of fish, reptiles, or amphibia, or parts
thereof, in any five-year period, and upon any conviction
subsequent to the three convictions during a five-year
period, that person shall be prohibited from taking any
fish, reptiles, or amphibia in the state for three years
from the date of the last conviction. The commission shall
revoke the sport fishing license of the person who is
prohibited from taking fish, reptiles, or amphibia in this
state, if he or she has one, for the period of prohibition.
It shall be unlawful for any person to obtain, or attempt
to obtain, a sport fishing license during a period of
prohibition.
This bill provides that upon a conviction of a violation of
Section 12012 or 12013, the department may suspend or
permanently revoke a person's hunting or sport fishing
license or permit privileges. Any person whose privileges
are suspended or revoked pursuant to this section may
appeal the suspension or revocation to the commission. The
commission shall initiate the appeal process within 12
months of the violator's appeal request. The department
may adopt regulations to implement this subdivision.
This bill provides that pursuant to subdivision (c) of
Section 12157, a judge may order the seizure or forfeiture
of any device or apparatus, including a vessel, vehicle, or
hunting or fishing gear that is used in committing an
offense punishable under Sections 12012 or 12013.
Existing law provides that for any conviction of a
violation of the Fish and Game Code, the court may order
the forfeiture of any device or apparatus that is designed
to be, or is capable of being used to take birds, mammals,
fish, reptiles or amphibian and that was used in committing
the offense charged.
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Existing law also provides for the forfeiture, upon
conviction of specified offenses of any device or apparatus
that is used in committing the offense, including, but not
limited to any vehicle used for the intended offense. The
specified offenses are:
1. Section 2000 relating to deer, elk, antelope, feral
pigs, European wild boars, black bears and brown or
cinnamon bears.
2. Any offense that involves the sale, purchase, or
possession of abalone for commercial purposes.
3. Any offense that involves the sale, purchase or
possession of sturgeon or lobster, pursuant to Section
7370 or 8254.
This bill adds to the existing forfeiture provisions
violations of Sections 12012 or 12013 of the Fish and Game
Code.
Background
Division 9 of the Fish and Game Code (Section 12000 et
seq.) establishes penalties for violations of the Fish and
Game Code. Many of the violations are punishable by a fine
of not more than $1,000, six months imprisonment, or both
the fine and imprisonment. Certain violations are subject
to a penalty of not more than $2,000 and up to one year in
jail, including, for example, unlawful taking or possession
of wildlife within a game refuge. The knowing or
intentional taking of mammals, birds or fish in excess of
quantity, size or sex limitations is subject to a minimum
fine of $250 for a first violation, $500 and not less than
30 days in jail for a second or subsequent violation, and a
maximum fine of $2,000 and up to one year in jail. Taking
of a mammal or bird without a hunting license as required
is similarly subject to a minimum fine of $250, and a
maximum fine of $2,000 and up to one year of imprisonment.
Section 12012 of the Fish and Game Code requires that the
unlawful taking of mammals, birds, amphibians, reptiles,
and fish for import, export, sale, purchase, barter, trade,
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exchange, or possession for profit or personal gain, be
punishable by a fine no greater than $30,000, imprisonment
for a year, or both fine and imprisonment. Furthermore,
persons punished for unlawful take is prohibited from
taking wildlife for at least one year and any of his or her
existing licenses, permits, or tags are immediately revoked
by Section 12013. On the third or subsequent conviction
for the unlawful take of species within a five-year period,
persons are prohibited from taking any wildlife for three
years.
Section 12157 allows or requires, depending on the
violation, a judge to seize any device that is capable of
or designed to take wildlife if the user is convicted of
violating the fish and game statutes.
Section 13003 requires that most fines for violations of
the fish and game code be divided equally between the Fish
and Game Preservation Fund, where it can be used to pay for
the costs of legal action, and the county in which the
offense occurred. Section 13100 requires deposits to the
county to be expended for the protection, conservation,
propagation, and preservation of fish and wildlife.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 8/20/09)
Action for Animals
Audubon California
California Fish and Game Wardens' Association
California Animal Association
California Fish and Game Commission
California Outdoor Heritage Alliance
County of Madera Board of Supervisors
Los Angeles County DA's Office
Ocean Conservancy
Office of San Francisco District Attorney Kamala D. Harris
The Humane Society of the United States
OPPOSITION : (Verified 8/20/09)
American Civil Liberties Union
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ARGUMENTS IN SUPPORT : The author states, "Not since the
early 1900s has the state experienced such high levels of
poaching. The most recent statistics show that between
2005 and 2007, poaching-related violations increased by 25
percent. California is particularly susceptible to
poaching because the current fines and penalties for
poaching violations have proved insufficient to serve as an
effective deterrent. Currently, there are no minimum
mandatory fines for serious poaching violations and
according to the Department of Fish and Game (DFG) many
violators are fined only very small amounts- and not enough
to deter a poacher that is financially profiting from the
activity. Also California has less than 300 game wardens
on active duty which is not sufficient to patrol a state
with thousands of miles of mountains and coastline."
ARGUMENTS IN OPPOSITION : The American Civil Liberties
Union opposes the forfeiture provisions in this bill
stating:
"Civil asset forfeiture laws raise serious civil
liberties concerns including the right to be free from
punishment that is disproportionate to the offense. Even
courts that have upheld forfeiture laws have recognized
that they are 'the harshest of all our laws respecting
ownership of private property' Nasir v. Sacramento County
Office of the District Attorney , 11 Cal. App. 4th 976,
985 (1992).
"AB 708 significantly expands the authority to forfeit
vessels or vehicles used in the commission of certain
violations, including possession of more than three times
the bag limit for any fish or mammal or illegally
possessing any amount of fish or mammal for profit or
personal gain. The proposed forfeiture expansions are
disproportionate to the underlying offenses. The
Legislature has been careful to authorize asset
forfeiture only for major crimes as evidenced by the drug
asset forfeiture laws that permit forfeiture only for
serious drug felonies involving large amounts of drugs.
We urge amendments taken removing this provision from the
bill."
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ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill
Berryhill, Tom Berryhill, Blakeslee, Block, Blumenfield,
Brownley, Buchanan, Caballero, Charles Calderon, Carter,
Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon,
DeVore, Duvall, Emmerson, Eng, Evans, Feuer, Fletcher,
Fong, Fuller, Furutani, Gaines, Galgiani, Garrick,
Gilmore, Hagman, Hall, Harkey, Hayashi, Hernandez, Hill,
Huber, Huffman, Jeffries, Jones, Knight, Krekorian, Lieu,
Logue, Bonnie Lowenthal, Ma, Mendoza, Miller, Monning,
Nestande, Niello, Nielsen, John A. Perez, V. Manuel
Perez, Portantino, Price, Ruskin, Salas, Silva, Skinner,
Smyth, Solorio, Audra Strickland, Swanson, Torlakson,
Torres, Torrico, Tran, Villines, Yamada, Bass
NO VOTE RECORDED: Fuentes, Nava, Saldana
CTW/JJA:mw 8/20/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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