BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Gloria Romero, Chair A
2007-2008 Regular Session B
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AB 1187 (DeSaulnier) 7
As Amended June 26, 2007
Hearing date: July 3, 2007
Fish and Game Code
MK:br
STURGEON: STRIPED BASS: SALMON: LOBSTER: BLACK BASS :
PENALTIES
HISTORY
Source: Natural Resources Defense Council
Prior Legislation: AB 2941 (Committee on Water, Parks &Wildlife)
- Ch. 388, Stats. 2000
Support: Recreation Fishing Alliance; Northern
California/Nevada Council Federation of Fly Fishers;
Coastside Fishing Club; California Aquaculture
Association
Opposition:ACLU
Assembly Floor Vote: Ayes 70 - Noes 0
KEY ISSUES
SHOULD THE PENALTIES FOR VARIOUS OFFENSES RELATED TO SALMON,
LOBSTER, STRIPED BASS, STURGEON, AND BLACK BASS BE INCREASED TO UP
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TO ONE YEAR IN THE COUNTY JAIL AND A FINE OF $15,000-$40,000 PLUS
PENALTY ASSESSMENTS?
SHOULD FORFEITURE PROVISIONS WHICH CURRENTLY APPLY TO ABALONE BE
EXTENDED TO APPLY TO SALMON, LOBSTER, STRIPED BASS, STURGEON AND
BLACK BASS?
PURPOSE
The purpose of this bill is to increase penalties for and allow
forfeiture for violations of provisions relating to the taking
of salmon, lobster, striped bass, sturgeon, and black bass.
Existing law , as set out in the California Constitution,
provides: "There is a Fish and Game Commission of 5 members
appointed by the Governor and approved by the Senate . . . The
Legislature may delegate to the commission such powers related
to the protection and propagation of fish and game as the
Legislature sees fit." (Cal. Const., Art. IV, 20.)
Existing law , as set out in the Fish and Game Code, grants the
commission authority to regulate the taking of fish and other
sea creatures from state waterways. (Fish & Game Code 200.)
Existing law specifically prohibits the taking of fish and game
except as set out in the Fish and Game Code and applicable
regulations. (Fish & Game Code 2000.)
Existing law states that it is a misdemeanor, punishable by up
to 6 months in the county jail and/or a fine of up to $1000,
except where otherwise specified in code, to violate any section
of the Fish and Game Code, or violate any regulation or rule
promulgated by the Department of Fish and Game (DFG) as to the
taking of fish and game. (Fish & Game Code 12000, 12002.)
Existing law provides that specified nets and traps are public
nuisances. Such equipment can be forfeited after a public
hearing, apparently without a criminal conviction. (Fish &
Game Code 8630.)
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Existing law provides that where any person is convicted of
illegal taking of deer, elk, antelope, feral pigs, wild boars,
or bears the court "may order forfeiture of any device or
apparatus used in committing the offense, including . . . any
vehicle used or intended for use in committing the offense." In
ordering forfeiture, the court shall consider the severity of
the violation and any other relevant factors. (Fish & Game Code
12157.)
Existing law , as set out in the California Constitution,
provides that "Money collected under any state law relating to
the protection or propagation of fish and game shall be used for
activities relating thereto." (Cal. Const., Art. XVI, 9.)
Existing law provides that except as provided in Section 8436.5,
no fish of the family Centrarchidae (Sacramento perch, crappie,
black bass, and sunfish) may be sold or purchased, other than
fish which are grown pursuant to Division 12 (commencing with
Section 15000). (Fish & Game Code 8436.)
This bill provides that the above shall not be taken or
possessed for commercial purposes, sold or purchased other
than fish that are cultured pursuant to Division 12
(commencing with Section 15000).
Existing law , except as provided in Section 7230 or 8371,
provides it is unlawful to buy or sell, or to offer to buy or
sell, a whole sturgeon, or any part thereof, including eggs, or
to possess sturgeon, or parts thereof, including eggs, in any
place where fish are bought, possessed for sale, or sold, or
where food is offered for sale, or in any truck or other
conveyance operated by or for a place so selling or possessing
fish. (Fish & Game Code 7370.)
This bill would provide instead that it is unlawful to take or
possess for commercial purposes, buy or sell, or to offer to buy
or sell any whole sturgeon, striped bass, or salmon, or any part
thereof including, but not limited to, eggs except as follows:
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A sturgeon or parts thereof, that is taken or possessed
by, and is the cultured progeny of, an aquaculturist who is
registered, may be sold or purchased subject to
regulations.
A sturgeon, or parts thereof, that is taken commercially
in another state that permits the sale of the fish and
lawfully imported may be possessed, sold or purchased.
Sturgeon or parts there of, taken pursuant to a
sportfishing license.
Salmon taken pursuant to Article 4 of the Fish and Game
Code.
Striped bass or salmon taken pursuant to Fish and Game
Code Section 8371.
This bill would provide that it is prima facie evidence that a
sturgeon, or parts thereof, is possessed for commercial purposes
if the possession of sturgeon is more than two times the legal
sport daily or yearly limit, or includes any fish greater than
76 inches in total length.
Existing law provides that:
(a) Lobsters shall not be taken for commercial purposes
except under a valid lobster permit issued to that person
that has not been suspended or revoked, subject to
regulations adopted by the commission.
(b) Every person who takes, assists in taking, possesses,
or transports lobsters for commercial purposes while on any
boat, barge, or vessel, or who uses or operates or assists
in using or operating any boat, net, trap, line, or other
appliance to take lobsters for commercial purposes, shall
have a valid lobster permit.
(c) The permit fee for a lobster permit is two hundred
sixty-five dollars ($265).
(d) The fee for a lobster crewmember permit is one hundred
twenty-five dollars ($125). (Fish & Game 8254.)
This bill would make the penalty for the above a misdemeanor
with a penalty of up to one year in jail and a fine of $15,000
to $40,000, plus penalty assessments.
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Existing law provides that notwithstanding Section 7364 or 7370
a striped bass or sturgeon, or parts thereof, may be sold under
the following conditions:
If the striped bass, or sturgeon, or parts thereof
is taken or possessed by, and is the cultured progeny
of, an aquaculturist who is registered, that striped
bass or sturgeon may be sold or purchased subject to
the regulations of the commission.
If the striped bass, or sturgeon, or parts
thereof, is taken legally in another state which
permits the sale of that fish and if that fish is
lawfully imported, the striped bass or sturgeon, or
parts thereof, may be possessed, sold or purchased.
(Fish & Game Code 8371.)
This bill provides instead that striped bass or salmon, or parts
thereof, may be sold only under the following conditions:
If the striped bass, or parts thereof, is taken or
possessed by, and is the cultured progeny of, an
aquaculturist who is registered, that striped bass may
be sold or purchased subject to regulations of the
commission.
If the striped bass, or parts thereof, is taken
legally in another state which permits the sale of that
fish and if that fish is lawfully imported, the striped
bass or parts thereof, may be possessed, sold or
purchased.
If the salmon, or parts thereof, is taken legally in
another sate that permits the sale of salmon, and is
lawfully imported, the salmon, or parts thereof, may be
possessed, sold, or purchased.
Existing law provides that notwithstanding Section 12002, the
punishment for a violation of Section 7370 or 8371 as that
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section relates to sturgeon is a fine not to exceed five
thousand dollars ($5000); imprisonment in the county jail not to
exceed one year; or both the fine and imprisonment. (Fish &
Game Code 12006.)
This bill would expand the above provision to apply to Fish and
Game Code Section 8254 and 8436 if the violation involves the
black bass.
This bill would increase the fine for a violation of Fish and
Game Code Section 12006 to a fine of $15,000 to $40,000, plus
penalty assessments.
This bill would further provide that for a violation of Fish and
Game Code Section 12006 the court shall permanently revoke any
commercial fishing license or commercial fishing permit, and may
permanently revoke any sportfishing license issued to the
violator by the department.
This bill would also provide for the forfeiture of any vessel,
diving or other fishing gear or apparatus, or vehicle used in
the commission of an offense under Fish and Game Code Section
12006.
This bill would provide that fifty percent of the revenue
deposited in the Fish and Game Preservation Fund from fines and
forfeitures collected under Fish and Game Code Section 12006
shall be allocated for the special Operations Unit of the
Department of Fish and Game and used for law enforcement
purposes.
Existing law provides that except as provided, the judge before
whom any person is tried for a violation of any provision of the
Fish and Game Code, may upon the conviction of the person tried,
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. (Fish & Game Code 12157 (c).)
Existing law provides if an offense is punishable under the
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Penal Code as a wobbler to maim, mutilate, torture etc.
specified animals, the judge shall order forfeiture of any
device or apparatus that is used in committing the offense,
including but not limited to, any vehicle that is used or
intended for use in delivering, importing, or exporting any
unlawfully taken, imported, or purchased species. (Fish & Game
Code 12157 (b).)
Existing law provides that the judge may, for conviction of a
violation of either of the following offenses, order forfeiture
of any device or apparatus that is used in committing the
offense, including, but not limited to, any vehicle used or
intended for use in committing the offense:
(1) Fish and Game Code Section 2000 provides the judge
may, for conviction of a violation of either of the
following offenses, order forfeiture of any device or
apparatus that is used in committing the offense,
including, but not limited to, any vehicle used or
intended for use in committing the offense:
Section 2000 relating to deer, elk, antelope,
feral pigs, European wild boars, black bears, and
brown or cinnamon bears.
Any offense that involves the sale, purchase,
or possession of abalone for commercial purposes.
(2) In considering an order of forfeiture under this
subdivision, the court shall take into consideration the
nature, circumstances, extent, and gravity of the
prohibited act committed, the degree of culpability of
the violator, the property proposed for forfeiture, and
other criminal or civil penalties imposed on the violator
under other provisions of law for that offense. The
court shall impose lesser forfeiture penalties for those
acts that have little significant effect upon natural
resources of the property of another and greater
forfeiture penalties for those acts that may cause
serious injury to natural resources or the property of
another, as determined by the court. In determining
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whether or not to order forfeiture of a vehicle, the
court shall in addition to any other relevant factor,
consider whether the defendant is the owner of the
vehicle and whether the owner of the vehicle had
knowledge of the violation.
(3) It is the intent of the Legislature that forfeiture
not be ordered for minor or inadvertent violations of
Section 2000, as determined by the court. (Fish & Game
Code 12157 (c).)
This bill would add the sale, purchase or possession of
sturgeon, salmon, striped bass, lobster and black bass to the
provisions allowing for forfeiture of any device or apparatus
used in committing the offense.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California currently faces an extraordinary and severe prison
and jail overcrowding crisis. California's prison capacity is
nearly exhausted as prisons today are being operated with a
significant level of overcrowding.<1> In addition, California's
jails likewise are significantly overcrowded. Twenty California
counties are operating under jail population caps. According to
the State Sheriffs' Association, "counties are currently
releasing 18,000 pre and post-sentenced inmates every month and
many counties are so overcrowded they do not accept misdemeanor
bookings in any form, . . . ."<2> In January of this year the
Legislative Analyst's office summarized the trajectory of
California's inmate population over the last two decades:
During the past 20 years, jail and prison
populations have increased significantly. County
jail populations have increased by about 66
percent over that period, an amount that has been
limited by court-ordered population caps. The
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<1> Analysis of the 2007-08 Budget Bill: Judicial and Criminal
Justice, Legislative Analyst's Office (February 21, 2007).
<2> Memorandum from CSSA President Gary Penrod to Governor,
February 14, 2007.
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prison population has grown even more dramatically
during that period, tripling since the
mid-1980s.<3>
The level of overcrowding, and the impact of the population
crisis on the day-to-day prison operations, is staggering:
As of December 31, 2006, the California Department
of Corrections and Rehabilitation (CDCR) was
estimated to have 173,100 inmates in the state
prison system, based on CDCR's fall 2006
population projections. However, . . . the
department only operates or contracts for a total
of 156,500 permanent bed capacity (not including
out-of-state beds, . . . ), resulting in a
shortfall of about 16,600 prison beds relative to
the inmate population. The most significant bed
shortfalls are for Level I, II, and IV inmates, as
well as at reception centers. As a result of the
bed deficits, CDCR houses about 10 percent of the
inmate population in temporary beds, such as in
dayrooms and gyms. In addition, many inmates are
housed in facilities designed for different
security levels. For example, there are currently
about 6,000 high security (Level IV) inmates
housed in beds designed for Level III inmates.
. . . (S)ignificant overcrowding has both
operational and fiscal consequences. Overcrowding
and the use of temporary beds create security
concerns, particularly for medium- and
high-security inmates. Gyms and dayrooms are not
designed to provide security coverage as well as
in permanent housing units, and overcrowding can
contribute to inmate unrest, disturbances, and
assaults. This can result in additional state
costs for medical treatment, workers'
compensation, and staff overtime. In addition,
--------------------
<3> California's Criminal Justice System: A Primer.
Legislative Analyst's Office (January 2007).
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overcrowding can limit the ability of prisons to
provide rehabilitative, health care, and other
types of programs because prisons were not
designed with sufficient space to provide these
services to the increased population. The
difficulty in providing inmate programs and
services is exacerbated by the use of program
space to house inmates. Also, to the extent that
inmate unrest is caused by overcrowding,
rehabilitation programs and other services can be
disrupted by the resulting lockdowns.<4>
As a result of numerous lawsuits, the state has entered into
several consent decrees agreeing to improve conditions in the
state's prisons. As these cases have continued over the past
several years, prison conditions nonetheless have failed to
improve and, over the last year, the scrutiny of the federal
courts over California's prisons has intensified.
In February of 2006, the federal court appointed a receiver to
take over the direct management and operation of the prison
medical health care delivery system from the state. Motions
filed in December of 2006 are now pending before three federal
court judges in which plaintiffs are seeking a court-ordered
limit on the prison population pursuant to the federal Prison
Litigation Reform Act. Medical, mental health and dental care
programs at CDCR each are "currently under varying levels of
federal court supervision based on court rulings that the state
has failed to provide inmates with adequate care as required
under the Eighth Amendment to the U.S. Constitution. The courts
found key deficiencies in the state's correctional programs,
including: (1) an inadequate number of staff to deliver health
care services, (2) an inadequate amount of clinical space within
prisons, (3) failures to follow nationally recognized health
care guidelines for treating inmate-patients, and (4) poor
coordination between health care staff and custody staff."<5>
This bill will aggravate the prison and jail overcrowding crisis
---------------------------
<4> Analysis 2007-08 Budget Bill, supra, fn. 1.
<5> Primer, supra, fn. 4.
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outlined above.
COMMENTS
1. Need for This Bill
According to the author:
This bill increases the penalties and makes other
technical changes to the statutory provision that apply
to sturgeon and other valuable commercial species that
are often the focus of organized criminal poaching
enterprises.
The principal focus of this bill in the Assembly was the
sturgeon fishery. Those provisions remain in the bill,
but the amendments adopted in Natural Resources
Committee broaden the bill to include provision relating
to other species that are commercially poached such as
black bass, salmon, and abalone.
Both white and green sturgeon are protected by the
California Endangered Species Act. Both fish are
extremely rare and long-lived, and are often the target
of commercial poachers who kill these fish for their roe
(caviar). White sturgeon, although exceedingly rare,
are the largest freshwater fish in North America, and
may achieve a length of 15 feet and weigh more than 1500
pounds. Wardens of the Department of Fish and Game have
arrested those involved in several sturgeon poaching
rings in recent years. The current maximum fine is
$5000 but is often considerably less. Caviar sells for
$120 an ounce, which equates to what a poacher can
generate from two fish.
2. Expansion of Misdemeanors to Cover Striped Bass or Salmon
a. Possession of sturgeon, striped bass or salmon
This bill expands an existing misdemeanor, punishable by
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up to one year in county jail and/or a fine of $5000 to
buy or sell or to offer to buy or sell a whole sturgeon
to include striped bass and sturgeon and to apply also
to taking or possessing for commercial purposes. This
bill also increases the fine to $15,000-$40,000 plus
penalty assessments. The bill exempts specific
possession from this provision if: the person has a
license; the sturgeon was obtained legally out of state;
the salmon or striped bass was taken legally under the
Fish and Game Code. The bill provides that it is prima
facie evidence that a sturgeon, or parts thereof, is
possessed for commercial purposes if the possession of
the sturgeon is more than two times the legal sport
daily or yearly limit, or includes any fish greater than
76 inches in total length. If a person is convicted of
this offense the court shall permanently revoke their
commercial fishing license or commercial fishing permit
and may permanently revoke any sportfishing license.
Any vessel, diving or other fishing gear or apparatus or
vehicle used in the commission of the offense may also
be subject to forfeiture as described in Comment #4
below.
SHOULD THE EXISTING MISDEMEANOR FOR BUYING OR SELLING A WHOLE
STURGEON BE EXPANDED TO INCLUDE STRIPED BASS OR SALMON?
SHOULD THE EXISTING MISDEMEANOR FOR BUYING OR SELLING WHOLE
STURGEON, AND WITH THIS BILL STRIPED BASS OR SALMON, BE EXPANDED
TO INCLUDE TAKING OR POSSESSING THE FISH FOR COMMERCIAL
PURPOSES?
SHOULD THE FINE FOR THE ABOVE BE INCREASED TO $15,000-$40,000
PLUS PENALTY ASSESSMENTS? (SEE COMMENT #3 BELOW)
SHOULD A VIOLATION OF THESE PROVISIONS SUBJECT A PERSON TO A
PERMANENT LOSS OF THEIR COMMERCIAL FISHING LICENSE?
SHOULD A VIOLATION OF THESE PROVISIONS SUBJECT A PERSON TO
FORFEITURE OF THEIR VEHICLE AND/OR EQUIPMENT? (SEE COMMENT #4
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BELOW.)
b. Lobster
Existing law provides that lobsters shall not be taken
for commercial purposes except under a valid lobster
permit issued to that person that has not been suspended
or revoked, subject to regulations adopted by the
commission. This bill makes the penalty for taking a
lobster for commercial purposes a misdemeanor with a
penalty of up to one year in jail and a fine of $15,000
to $40,000 plus penalty assessments. If a person is
convicted of this offense the court shall permanently
revoke their commercial fishing license or commercial
fishing permit and may permanently revoke any
sportfishing license. Any vessel, diving or other
fishing gear or apparatus or vehicle used in the
commission of the offense may also be subject to
forfeiture as described in Comment #4 below.
SHOULD THE PENALTY FOR TAKING LOBSTER FOR COMMERCIAL PURPOSES BE
A MISDEMEANOR PUNISHABLE BY UP TO ONE YEAR IN THE COUNTY JAIL
AND/OR A FINE OF $15,000-$40,000? (SEE COMMENT #3 BELOW.)
SHOULD A VIOLATION OF THESE PROVISIONS SUBJECT A PERSON TO A
PERMANENT LOSS OF THEIR COMMERCIAL FISHING LICENSE?
SHOULD A VIOLATION OF THESE PROVISIONS SUBJECT A PERSON TO
FORFEITURE OF THEIR VEHICLE AND/OR EQUIPMENT? (SEE COMMENT #4
BELOW.)
c. Black Bass
Existing law provides that no fish of the family of
Cenrarchidae (Sacramento perch, crappie, black bass and
sunfish) may be sold or purchased other than fish which
are grown pursuant to the Fish and Game Code. This bill
adds that these fish may not be taken or possessed for
commercial purposes and provides that if the violation
involves black bass then the violation is punishable by
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up to one year in the county jail and or a fine of
$15,000-$40,000?
SHOULD THE PENALTY FOR TAKING OR POSSESSING FOR COMMERCIAL
PURPOSES, SELLING OR PURCHASING A BLACK BASS BE A MISDEMEANOR
PUNISHABLE BY UP TO ONE YEAR IN THE COUNTY JAIL AND OR A FINE OF
$15,000-$40,000? (SEE COMMENT #3 BELOW.)
SHOULD A VIOLATION OF THESE PROVISIONS SUBJECT A PERSON TO A
PERMANENT LOSS OF THEIR COMMERCIAL FISHING LICENSE?
SHOULD A VIOLATION OF THESE PROVISIONS SUBJECT A PERSON TO
FORFEITURE OF THEIR VEHICLE AND/OR EQUIPMENT? (SEE COMMENT #4
BELOW.)
3. Fine Increases
Until the budget year 2002-2003, there was 170% in penalty
assessments applied to every fine, the current penalty
assessments are 270%. Some of the existing penalty assessments
are:
State Penalty Assessment: Existing law provides for
an additional "state penalty" of $10 for every $10 or
fraction thereof, upon every fine, penalty or
forfeiture imposed and collected by the courts for
criminal offenses including all offenses, except
parking offenses, involving the Vehicle Code. Of the
money collected, 70% is transmitted to the state and
30% remains with the county. The state portion of the
money collected from the penalty is distributed in
specified percentages among: the Fish and Game
Preservation Fund (0.33%); the Restitution Fund
(32.02%); the Peace Officers Training Fund (23.99%);
the Driver Training Penalty Assessment Fund (25.70%);
the Corrections Training Fund (7.88%); the Local Public
Prosecutors and Public Defenders Fund (0.78%, not to
exceed $850,000 per year); the Victim-Witness
Assistance Fund (8.64%); and the Traumatic Brain Injury
Fund (0.66%). (Penal Code 1464.)
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County Penalty Assessment: Existing law provides
for an additional county penalty assessment of $7 for
every $10 or fraction thereof, upon every fine,
penalty, or forfeiture imposed and collected by the
courts for criminal offenses, including all offenses
involving a violation of the Vehicle Code or any local
ordinance adopted pursuant to the Vehicle Code except
parking offenses. The money collected shall be placed
in any of the following funds if established by a
County Board of Supervisors: Courthouse Construction
Fund; a Criminal Justice Facilities Construction Fund;
Automated Fingerprint Identification Fund; Emergency
Medical Services Fund; DNA Identification Fund.
(Government Code 76000 et seq.)
State Surcharge: As a part of the 2002-03 Budget
Act, the Legislature imposed a temporary state
surcharge of 20% on every base fine collected by the
court. The surcharge took effect on September 30, 2002
and sunsets on July 1, 2007. All money collected shall
be deposited in the General Fund. (Penal Code
1465.7.)
State Court Facilities Construction: In 2002, as a
part of the Trial Court Facilities Act of 2002 (AB
1732 - Escutia), the Legislature established the
"State Court Facilities Construction Fund" and added a
state court construction penalty assessment in an
amount up to $5 for every $10 or fraction thereof,
upon every fine, penalty, or forfeiture imposed and
collected by the courts for criminal offenses. The
variation in the amount is dependant on the amount
collected by the county for deposit into the local
Courthouse Construction Fund established pursuant to
Government Code Section 76100. As a result, the
penalty assessment ranges from $0.00 for every $10 in
two counties to the full $5 for every $10 in nine
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counties. This provision took effect on January 1,
2003. (Government Code 70372.)
Court Security: Finally, as part of the 2003-04
Budget, the Legislature approved a flat fee of $20 on
every conviction for a criminal offense to ensure
adequate funding for court security. This provision
took effect immediately. (Penal Code 1465.8.)
Prop 69, Nov. 2004 levied a $1 penalty assessment on
every $10 in fines and forfeitures resulting from
criminal and traffic offenses and dedicates these
revenues to state and local governments for DNA
databank implementation purposes - the state will
receive 70% of these funds in the first two years, 50%
in the third year and 25% annually thereafter. The
remainder will go to local governments. (Government
Code 76104.6.)
SB 1773 (Alarcon) Chapter 841, Statutes of 2006
created an additional penalty assessment of $2 on every
$10 to support emergency medical services. (Government
Code 7600.5.)
As noted above in Comment #2, this bill amends a number of
sections relating to sturgeon, striped bass, lobster and salmon
and increases the penalties for these offenses. Under existing
law the fine is either $1000 or $5000 depending on the offense.
This bill raises those fines to $15,000 to $40,000. With
penalty assessment, this makes the fines extremely high for a
misdemeanor offense. Under existing law a $1000 fine is $3700
and a $5000 fine is $18,500. Under this bill the minimum fine
of $15,000 is really $55,500 and a $40,000 fine is really
$148,000.
The supporters of the bill assert that while the existing fine
is $5000, the actual fine imposed is often much less. One
reason for the imposition of lesser fines by the courts is that
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the courts are well aware of the actual amount a person pays
when a fine is imposed and may chose to impose a lesser fine
that they feel is more appropriate when penalty assessments are
taken into consideration. Raising these fines with a minimum
of over $50,000 could have the unintended consequences to put
additional pressure on the courts to impose no fine at all.
ARE FINES BETWEEN $55,500 AND $148,000, WITH PENALTY
ASSESSMENTS, APPROPRIATE FOR A MISDEMEANOR OFFENSE?
IF COURTS ARE NOT IMPOSING THE CURRENT FINE OF $5000 ($40,000
WITH PENALTY ASSESSMENTS), WILL INCREASING THE FINES MAKE IT ANY
MORE LIKELY THEY IMPOSE THE FINES?
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4. Forfeiture Provisions
Under exiting law a judge may order forfeiture of any device or
apparatus that is used in committing Fish and Game Code offenses
relating to deer, elk, antelope, feral pigs, European wild
boars, black bears, brown or cinnamon bears and abalone. This
bill adds offenses involving the sale, purchase or possession of
sturgeon, salmon, striped bass, lobster or black bass for
commercial purposes to these forfeiture provisions.
The existing law does say the court shall take into
consideration the nature, circumstances etc. of the offense, the
culpability of the violator and the other penalties imposed
before ordering forfeiture. The court is also authorized to
consider the seriousness of the injury to natural resources or
property of another and any other relevant factor.
As to offenses relating to deer, elk, antelope, feral pigs,
European wild boars, black bears, and brown or cinnamon bears, the
law states that it is the intent of the Legislature that
forfeiture not be ordered for "minor or inadvertent violations" as
determined by the court. This section does not currently apply
to abalone nor will it apply to the fish added by the bill. It is
unclear that if by not including this reference to not allowing
forfeiture for "minor or inadvertent violations" of the provisions
added by this bill, this somehow implies that forfeiture should be
used in these situations.
In opposition the ACLU states:
The ACLU has reviewed the recent amendments to AB 1187
and wishes to express its opposition to the expansion
of the civil forfeiture provisions in Section 7 of the
bill (Fish & Game Section 12157).
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
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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 1187 expands the authority to forfeit vehicles used
in the commission of any offense that involves the
sale, purchase, or possession of salmon, lobster, or
other designated fish for commercial purposes. The
statute does not designate what constitute a
"commercial purpose" nor does it explicitly protect
from potential forfeiture either those with a community
property interest or innocent owners. We are
particularly concerned that this expansion could apply
to relatively minor violations of the Fish and Game
laws. 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 that will rectify these
concerns.
As the ACLU notes, in the forfeiture statute itself commercial
purposes is not defined. Further, there are no safeguards in
this bill to protect the family car or truck from being
forfeited. Finally, these are misdemeanor offenses with higher
than usual fines under existing law that will be increased under
this bill, existing forfeiture provisions in other areas apply
either to felonies or to repeat offenses.
SHOULD THE FORFEITURE PROVISIONS RELATING TO ABALONE BE EXTENDED
TO STURGEON, SALMON, STRIPED BASS, LOBSTER OR BLACK BASS?
IS IT APPROPRIATE TO HAVE FORFEITURE FOR MISDEMEANOR OFFENSES?
SHOULD THE PROVISION SAYING THAT IT IS THE INTENT OF THE
LEGISLATURE THAT FORFEITURE NOT BE ORDERED FOR MINOR OR
INADVERTENT VIOLATIONS RELATING TO SPECIFIED ANIMALS ALSO APPLY
TO ABALONE AND THE FISH ADDED BY THIS BILL?
AB 1187 (DeSaulnier)
PageT
SHOULD "COMMERCIAL PURPOSES" BE DEFINED IN THIS BILL?
SHOULD A COMMUNITY PROPERTY EXCEPTION TO FORFEITURE BE PLACED IN
THIS BILL?
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