BILL ANALYSIS
AB 1675
Page 1
Date of Hearing: March 16, 2010
Counsel: Meghan Masera
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1675 (Hagman) - As Amended: March 10, 2010
SUMMARY : Creates a misdemeanor for any person, other than a
zoo employee, to trespass into an animal enclosure at a zoo,
defined to include an aquarium or tank for aquatic animals.
Specifically, this bill :
1)Makes it a misdemeanor punishable by up to six-months in the
county jail, by a fine not exceed $1,000, or both, for any
person other than a zoo employee to enter an animal enclosure
at a zoo, where signs prohibiting entrance into the zoo's
animal enclosures have been posted, without the consent of the
zoo's governing authority or representative.
2)Creates an exemption for a zoo employee acting within the
course of his or her employment and a public officer acting
within the course and scope of his or her employment in
performance of a duty imposed by law.
3)Defines "zoo" as a permanent or semi-permanent collection of
living animals kept in enclosures for the purpose of
displaying the animals to the public including public
aquariums displaying aquatic animals.
4)Provides that an "animal enclosure" includes, but is not
limited to, an aquarium or tank used to house or display
aquatic animals.
EXISTING LAW :
1)States that it is a misdemeanor punishable by six months in
county jail for every person who willfully enters any lands
under cultivation or enclosed by fence, belonging to, or
occupied by, another, or entering upon uncultivated or
unenclosed lands where signs forbidding trespass are displayed
at intervals not less than three to the mile along all
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exterior boundaries and at all roads and trails entering the
lands without the written permission of the owner of the land,
the owner's agent or of the person in lawful possession and:
a) Refuses or fails to leave the lands immediately upon
being requested by the owner of the land, the owner's agent
or by the person in lawful possession to leave the lands;
b) Tears down, mutilates, or destroys any sign, signboard,
or notice forbidding trespass or hunting on the lands;
c) Removes, injures, unlocks, or tampers with any lock on
any gate on or leading into the lands; or,
d) Discharges any firearm. [Penal Code Section 602(l).]
2)Provides that any person who willfully enters and occupies
real property or structures of any kind without the consent of
the owner, the owner's agent, or the person in lawful
possession, is guilty of a misdemeanor. [Penal Code Section
602(m).]
3)Allows for prosecution against those who refuse or fail to
leave land, real property, or structures belonging to or
lawfully occupied by another and not open to the general
public, upon being requested to leave by a peace officer at
the request of the owner, the owner's agent, or the person in
lawful possession, and upon being informed by the peace
officer that he or she is acting at the request of the owner,
the owner's agent, or the person in lawful possession or the
owner, the owner's agent, or the person in lawful possession.
[Penal Code Section 602(o).]
4)Provides that any person who, without the written permission
of the landowner, the owner's agent, or the person in lawful
possession of the land, willfully enters any lands under
cultivation or enclosed by a fence, belonging to, or occupied
by, another, or who willfully enters upon uncultivated or
unenclosed lands where signs forbidding trespass are displayed
at intervals not less than three to the mile along all
exterior boundaries and at all roads and trials entering
lands, is guilty of a public offense punishable as follows:
a) A first offense is an infraction punishable by a fine of
$75;
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b) A second offense on the same land or any contiguous land
of the same landowner, without the permission of the
landowner, the landowner's agent, or the person in lawful
possession of the land, is an infraction punishable by a
fine of $250; and,
c) A third or subsequent offense on the same land or any
contiguous land of the same landowner, without the
permission of the landowner, the landowner's agent, or the
person in lawful possession of the land, is a six-month
misdemeanor. (Penal Code Section 602.8.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Current
trespassing law is not fully protecting our zoos and in turn
the endangered species they protect. AB 1675 will help
California zoos better protect their animals and deter anyone
who tries to harm them."
2)Intent to Occupy : In order to charge a crime of trespass for
entering into an animal enclosure, a prosecutor would likely
have to use Penal Code Section 602(m), which creates a crime
of trespass for "entering and occupying real property or
structures of any kind without the consent of the owner, the
owner's agent, or the person in lawful possession."
The problem with using Penal Code Section 602(m) is the
prosecutor will have to prove intent to occupy the space.
[People v. Wilkinson, 248 Cal. App. 2d Supp. 906, 56 Cal.
Rptr. 261 (1967).]
In Wilkinson, the court held that "the transient overnight use
of four 3 x 7 foot areas in a very large ranch for sleeping
bags and campfire purposes was not the type of conduct which
the Legislature intended to prevent by use of the word
'occupy' [in Penal Code section 602, subdivision [(m)]]." The
court further held, "Having in mind the legislative purpose in
passing subdivision [(m)] of section 602, it is rather obvious
that some degree of dispossession and permanency be intended."
(Id. at 910, 264.)
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Under this holding, the law requires more than a temporary stay
as Penal Code Section 602(m) was intended to criminalize
"squatting." It is unlikely that entrance into an animal
enclosure would constitute occupation under the holding of
Wilkinson.
Recently, a man was arrested for trespassing after entering the
bear grotto at the San Francisco Zoo. The superior court
judge dismissed the misdemeanor trespassing charge as the
defendant's brief stay in the bear grotto did not meet the
legal definition of trying to "occupy" the enclosure. [Van
Derbeken, Man Acquitted in Zoo Grizzly-Grotto Incident, San
Francisco Chronicle (Nov. 4, 2009).]
This bill remedies this problem by creating a new misdemeanor
trespass crime for entering into animal enclosures at zoos
without authorization.
3)Arguments in Support : According to the San Francisco Zoo (the
sponsor of this bill), "As currently interpreted, current law
allows any individual to enter into any zoological animal
exhibit or holding area despite the potential threat to
themselves, the living animals housed therein, the staff, or
the visiting public if they are not intending to 'occupy' , or
live in, the animal exhibit or enclosure.
"We believe this decision sets a dangerous precedent that would
allow anyone unsupervised or without the required permissions
to enter into living animal exhibits, exposing themselves to
serious bodily harm with the result that they in turn could
sue the zoological facility or the government entity owning or
operating the facility as a result of such behavior."
4)Prior Legislation :
a) SB 331 (Romero), of the 2007-08 Legislative Session,
would have created an infraction, punishable by a fine, for
any person to willfully enter upon Indian lands occupied by
a federally recognized tribe, band, or group of which the
person is not a member after receiving written notice
forbidding trespassing. SB 331 failed passage in the
Assembly Appropriations Committee.
b) SB 804 (Hollingsworth), of the 2007-08 Legislative
Session, would have created a new six-month misdemeanor
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against those persons who committed trespass by interfering
with a business and thereafter returned to the business
within six months after being requested not to do so. SB
804 failed passage in the Senate Public Safety Committee
because it potentially aggravated the jail overcrowding
situation.
c) AB 2155 (Garcia), of the 2007-08 Legislative Session,
would have provided that any person who willfully enters
upon any casino owned and operated by a federally
recognized Indian tribe, band or group, after receiving
specified notice or signing a specified request, is guilty
of a misdemeanor punishable by imprisonment in the county
jail not exceeding six months, a fine not exceeding $1,000
or by both that imprisonment and fine. AB 2155 was never
heard by the Assembly Appropriations Committee.
d) AB 924 (Maldonado), Chapter 101, Statutes 2003,
increased the fine against those who willfully enter any
lands under cultivation or enclosed by fence belonging to,
or occupied by, another person; or, willfully enters upon
uncultivated or unenclosed lands where signs forbidding
trespass are displayed at intervals not less than three to
the mile along all exterior boundaries and at all roads and
trails entering the lands from $10 to $100 for a first
offense and from $100 to $250 for a second offense.
REGISTERED SUPPORT / OPPOSITION :
Support
San Francisco Zoo (Sponsor)
California Association of Joint Powers Authorities
Sacramento Zoological Society
Opposition
None
Analysis Prepared by : Meghan Masera / PUB. S. / (916)
319-3744