BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 1675 (Hagman) 5
As Amended June 14, 2010
Hearing date: June 22, 2010
Penal Code
JM:dl
TRESPASS:
ZOO, CIRCUS, ANIMAL EXHIBIT AND AQUARIUM ENCLOSURES
HISTORY
Source: San Francisco Zoo
Prior Legislation: None directly on point
Support: California Association of Joint Powers Authorities;
Sacramento Zoological Society; California Association
of Museums; California Travel Industry Association;
California Association of Joint Powers Authorities;
Feld Entertainment, Inc.
Opposition:None known
Assembly Floor Vote: Ayes 74 - Noes 0
KEY ISSUES
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SHOULD A NEW FORM OF TRESPASS BE DEFINED THAT WOULD BE COMMITTED
WHERE A PERSON, WITHOUT CONSENT, ENTERS AN ANIMAL ENCLOSURE IN A
ZOO, CIRCUS, AQUARIUM OR TRAVELING ANIMAL EXHIBIT, AS SPECIFIED?
(CONTINUED)
SHOULD AN ANIMAL ENCLOSURE BE DEFINED AS A DISCRETE CONTAINMENT
AREA, SUCH AS A CAGE, STALL, PEN, OR TANK THAT IS USED TO HOUSE OR
DISPLAY AN ANIMAL AND IS NOT GENERALLY ACCESSIBLE TO THE PUBLIC?
SHOULD THIS CRIME APPLY ONLY IF THE ZOO, CIRCUS, AQUARIUM, OR OTHER
EXHIBIT POSTED A NOTICE PROHIBITING ENTRANCE INTO THE ENCLOSURE?
SHOULD THIS OFFENSE BE AN ALTERNATE MISDEMEANOR-INFRACTION
(WOBBLETTE)?
PURPOSE
The purposes of this bill are to 1) define a new form of
trespass that would be committed where a person, without consent
and contrary to a posted notice, enters an animal enclosure in a
zoo, circus, aquarium or traveling animal exhibit, and 2) to
provide that the offense shall be an alternate
misdemeanor-infraction.
Existing law 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 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:
Refuses or fails to leave the lands immediately upon being
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requested by the owner of the land, the owner's agent or by
the person in lawful possession to leave the lands;
Tears down, mutilates, or destroys any sign, signboard, or
notice forbidding trespass or hunting on the lands;
Removes, injures, unlocks, or tampers with any lock on any
gate on or leading into the lands; or,
Discharges any firearm. (Pen. Code 602(l).]
Existing law 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. (Pen. Code 602(m).)
Existing law 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. (Pen. Code
602(o).)
Existing law 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 first offense is an infraction punishable by a fine of $75;
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,
A third or subsequent offense on the same land or any
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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.)
This bill makes it an alternate misdemeanor-infraction for any
person, without consent, to enter an animal enclosure at a zoo,
circus, or traveling animal exhibit, if the zoo, circus or
exhibit is licensed or permitted to display living animals to
the public. A misdemeanor conviction is punishable by up to
six-months in the county jail, a fine not exceed $1,000, or
both. An infraction conviction is punishable by a fine of up to
$250.
This bill provides that the crime only applies if signs
prohibiting entrance into the animal enclosures have been posted
either at the entrance to the facility or exhibit or on the
animal enclosure.
This bill includes cross-references and statutory provisions for
the application of standard alternate-misdemeanor infraction
procedures to this offense.
This bill creates exemptions 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.
This bill defines a "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.
This bill provides that an "animal enclosure" is a discrete
containment area, such as the interior of a cage, stall, pen,
aquarium or tank, that is used to house or display an animal and
which is not generally accessible to the public.
This bill includes an exception for a public officer acting
within the scope or his or her employment.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house,
(Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, California "spends more on corrections
than most countries in the world," but the state
"reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
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population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. On Monday, June 14, 2010, the U.S. Supreme Court agreed
to hear the state's appeal in this case.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
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<1> Three Judge Court Opinion and Order, 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 (August 4, 2009).
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COMMENTS
1. Need for This Bill
According to the author:
Current trespassing laws do not fully protect our zoos
and the endangered species in these facilities. AB
1675 will help California zoos better protect their
animals and deter anyone who tries to harm them.
2. Intent to Occupy Element in Existing Trespass Crime
Under existing law, where a prosecutor seeks to prosecute a
person for entering into an animal enclosure at a zoo without
consent, the prosecutor would likely attempt to charge the
defendant with trespass under Penal Code Section 602,
subdivision (m). That provision defines a form 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." Thus, it appears that to obtain a
conviction under this section, the prosecutor must prove that
the defendant intended to occupy the space. (People v.
Wilkinson, (1967) 248 Cal. App. 2d Supp. 906.)
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 p.
910.) The court in Wilkinson appears to have limited reach of
subdivision (m) to cases where the defendant was essentially
"squatting" in the place where the alleged trespass occurred.
It is unlikely that entrance into an animal enclosure would
constitute occupation under the holding of Wilkinson.
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3. Incident at San Francisco Zoo in which a Man entered a
Grizzly Bear Enclosure
In 2009, Kenneth Herron, a 21-year-old man suffering from a
mental illness, was prosecuted for trespass and disturbing
dangerous animals<2> after entering the bear grotto at the San
Francisco Zoo. The superior court dismissed the misdemeanor
trespassing charge, finding that Herron's brief stay in the bear
grotto did not meet the legal definition of trying to "occupy"
the enclosure. The jury acquitted Herron on the remaining
charge of disturbing a dangerous animal. One juror explained
that jurors concluded that that Herron had not disturbed the
bear. Further, the jurors believed that Herron, because of his
mental illness, may not have willingly entered the den. Herron
had told authorities that the voice of a well-known model had
told him to enter the bear den and save a girl who was in
distress. (Van Derbeken, Man Acquitted in Zoo Grizzly-Grotto
Incident, San Francisco Chronicle (Nov. 4, 2009).)
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<2> The trespass charge was filed under state law. The
disturbing an animal charge was filed under a San Francisco
misdemeanor ordinance.
The Chronicle article noted that the court ordered Herron to be
released after the acquittal, although he was being sought under
a warrant from Union City (in the East Bay). One could argue
that the threat or availability of a misdemeanor conviction
under this bill would not have prevented the incident in which
Herron entered the bear enclosure. However, a person who is not
suffering from mental illness, but rather a lack of good
judgment, could perhaps be dissuaded from entering a zoo
enclosure because of the threat of a misdemeanor prosecution.
Further, one could argue that a misdemeanor conviction could
have made Herron eligible for mental health services while on
probation, services that might not be available otherwise.
4. Application of the Bill to Circuses and Similar Entities
In addition to making unauthorized entry of an animal enclosure
at a zoo or aquarium trespass, the bill applies to such conduct
at a circus or a traveling animal exhibit. These are different
kinds of facilities or entities than a traditional zoo or
aquarium.
SHOULD THIS BILL APPLY TO ENTITIES SUCH AS CIRCUSES?
SHOULD ENTRY INTO AN ANIMAL ENCLOSURE AT A ZOO OR AQUARIUM BE A
MISDEMEANOR OR INFRACTION?
5. Argument in Support
The San Francisco Zoo argues in support 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
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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.
SHOULD A NEW FORM TRESPASS - AS AN ALTERNATE
MISDEMEANOR-INFRACTION - BE ENACTED THAT WOULD BE COMMITTED
WHERE A PERSON, WITHOUT PERMISSION, ENTERS AN ANIMAL ENCLOSURE
AT A ZOO, ANIMAL EXHIBIT, CIRCUS, OR AQUARIUM?
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