BILL ANALYSIS Ó AB 1117 Page 1 Date of Hearing: May 3, 2011 Counsel: Sandy Uribe ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair AB 1117 (Smyth) - As Amended: April 27, 2011 SUMMARY : Makes changes to penalties in animal abuse and neglect cases as well as in animal seizure proceedings. Specifically, this bill : 1)States that the owner of a seized animal shall be liable not only for the costs of caring for and treating the animal, but also for the full cost of housing and feeding the animal, and specifies these full costs will also apply to animals seized pursuant to a search warrant. 2)Requires a person charged with abusing or neglecting an animal to make an additional showing before the seized animal is returned, specifically that he or she does not present a danger to the animal. 3)Allows the seizing agency to make the determination at a post-seizure hearing regarding whether an animal owner has demonstrated he or she can and will provide the necessary care, and whether the owner presents a danger to the animal. 4)States the process for providing the owner of a seized animal a statement of charges. 5)Gives an animal owner 14 days from the date a statement of charges is presented to pay the charges in full, and further requires the owner to pay subsequent charges within 14 days of the date of the next statement. If the owner fails to pay in full, the animal becomes the property of the seizing agency. 6)Allows the prosecuting attorney to file a petition for severance of ownership during pendency of the criminal proceedings on the grounds that the owner will not legally be permitted to retain the animal even in the event of acquittal. AB 1117 Page 2 7)Requires the court to order immediate forfeiture of an animal during the pendency of criminal proceedings if the prosecutor proves by a preponderance of the evidence that the owner will not legally be permitted to retain the animal, even in the event of acquittal. 8)Creates a statutory condition of probation prohibiting animal ownership for a person convicted of animal cruelty and granted probation. 9)Requires the court, regardless of the sentence imposed, to order the convicted person to immediately deliver all animals in his or her possession to a public entity to be put up for adoption, or alternatively, to provide proof that he or she no longer possesses any animal. 10)Prohibits the court, in the event of acquittal or dismissal of the case, to release any seized animals to the defendant unless he or she establishes: (a) proof of ownership, (b) proof that all charges have been fully paid, (c) proof that all animals are physically fit, (d) proof that the owner can and will provide the necessary care, and (e) proof that all the animals in question can legally be retained. 11)Prohibits a person conviction of misdemeanor animal cruelty from owning an animal for five years, and a person conviction of felony animal cruelty from owning an animal for 10 years. 12)Makes it a misdemeanor for any person convicted of animal abuse to thereafter own, possess, maintain, have custody of, live with, or care for any animal within a specified period. 13)Creates an exception for the animal-ownership injunction for livestock owners who can establish that the restriction would result in substantial or undue economic hardship to the defendant's livelihood and that the defendant has the ability to properly care for all livestock in his or her possession. 14)Allows a defendant to petition the court to reduce the duration of the ownership prohibition if the defendant can establish he or she: (a) does not present a danger to animals, (b) has the ability to properly care for all animals possessed, and (c) successful completion of all court-ordered classes or counseling. AB 1117 Page 3 15)Gives the court discretion, in the event the length of the mandatory ownership prohibition is reduced, to order that the defendant comply with reasonable and unannounced inspections by animal control or law enforcement. 16)Repeals a statutory provision relating to the duties of public authorities relating to abandoned or neglected animals. EXISTING LAW: 1)States it is 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 to maliciously or intentionally kill an animal. ÝPenal Code Section 597(a).] 2)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. ÝPenal Code Section 597(b).] 3)States that ever person who willfully abandons any animal is guilty of a misdemeanor. (Penal Code Section 597s.) 4)Provides that any peace officer, humane society officer, or animal control officer shall take possession of a 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. ÝPenal Code Section 597.1(a).] 5)Provides for hearings prior to seizure of an animal in some instances, and after seizure in other instances. (Penal Code Section 597.1.) AB 1117 Page 4 6)Sets forth the notice requirements and the procedure for a hearing after an animal has been seized. ÝPenal Code Section 597.1(f) to (j).] 7)States that the owner of a seized animal is liable for the cost of caring and treating the animal, that these costs will be considered a lien on the animal, and that the animal will not be returned until the charges are paid. ÝPenal Code Section 597.1(a), (b), and (c).] 8)States that if the animal owner fails to pay charges within 14 days, the animal is deemed abandoned and can be disposed of by the impounding officer. ÝPenal Code Section 597.1(h).] 9)Imposes a duty on specified officers to take charge of an abandoned or neglected animal and to convey it to a veterinarian for proper care or to euthanize it, as specified. (Penal Code Section 597f.) 10)Allows the court to order a convicted defendant to repay the appropriate public entity for the costs incurred in the impoundment, housing, care, feeding, and treatment of the animals. ÝPenal Code Sections 597(f)(1), 597.1(k), and 599aa(f).] 11)Provides that when a defendant is convicted for a violation of animal abuse, the court may also order, as a condition of probation, that the person be prohibited from owning, possessing, caring for, or having any contact with animals of any kind and require the 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. ÝPenal Code Section 597.1(k).] 12)Allows the court to impose all reasonable conditions of probation as it may determine are fitting and proper so that justice may be done, society may be amended for the breach of the law, for the reformation and rehabilitation of the probationer. ÝPenal Code Section 1203.1(j).] FISCAL EFFECT : Unknown COMMENTS : AB 1117 Page 5 1)Author's Statement : According to the author, "Animal abuse is a pervasive problem that continues to impact animals, law enforcement, and animal shelters throughout the state. This bill seeks to prevent future instances of animal abuse and seeks to assist local animal control agencies in their efforts to serve abused animals. To meet this goal the bill outlines two simple solutions to problems associated with animal abuse and the restrictive nature of the hearing process associated with animal abuse cases. "First, this bill will mandate that misdemeanor and felony animal abuse convictions result in probation terms that prohibit animal ownership for 5 or 10 years, respectively. The increased restriction on ownership post-conviction will assist in protecting animals against abuse. "Second, this bill will streamline the hearing process for animal abuse cases, allowing prosecuting attorneys to petition to sever ownership rights to abused animals. This will allow animal control agencies or shelters to effectively serve abused animals in cases where is unlikely, or not possible, that the afflicted animals would be returned to their abusive owner." 2)Necessity of the Probation Condition Provision : A court has broad discretion to prescribe conditions of probation so long as the conditions serve the purpose of the probation statute. ÝPeople v. Birkett (1999) 21 Cal.4th 226, 235.] "A condition of probation will not be held invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.' " ÝPeople v. Lent (1975) 15 Cal.3d 481, 486.] Although an ownership-prohibition condition relates to conduct which is not criminal, when a person is convicted of animal cruelty, such a condition will have a relationship to the crime and will be reasonably related to future criminality. In light of this nexus and given the broad discretion of the sentencing court, it is questionable whether the probation condition provision is necessary. Moreover, the California Supreme Court has held that a probation condition requiring a defendant to notify a probation officer of the presence of any pets at his or her place of residence is valid even when it has no relationship to the charged crime AB 1117 Page 6 because the probation condition is reasonably related to the supervision of a defendant and hence to his or her rehabilitation and potential future criminality. ÝPeople v. Olguin (2008) 45 Cal.4th 375, 378.] 3)Prohibiting Pet Ownership beyond the Period of Probation or Parole : In addition to the mandatory probation condition, this bill requires a court to prohibit a person convicted of misdemeanor animal abuse or neglect from owning or residing with an animal for five years. A felony conviction mandates a 10-year ownership or residency prohibition. This bill also creates a new misdemeanor offense for a person found to be in violation of the animal-possession injunction. Although this provision may not create enforcement issues when the person is on probation or parole, from a practical standpoint it is difficult to see how this provision would be enforced when the person is no longer on probation or parole. This provision differs from a driver's license restriction or a weapon's ban because there is no administrative agency with which one has to register an animal. Similarly, this provision differs from a restraining order in that an animal is not going to call law enforcement to advise that the person is violating the injunction. The only way to ensure compliance with this provision is to send officers to confirm, thereby diverting them from other duties. Although the court has discretion to reduce the duration of the mandatory ownership prohibition if the defendant makes the requisite showing, the court can nevertheless require the person to be subject to unannounced inspections by animal control or law enforcement. Undoubtedly, a person on probation or parole has a lesser expectation of privacy for Fourth Amendment purposes. ÝGriffin v. Wisconsin (1987) 483 U.S. 868, 873-874.] However, as the ownership restriction can last longer than the period of probation or parole, this provision would appear to violate the Fourth Amendment since the person affected may no longer be on conditional liberty and because the intrusion need not even be based on individualized suspicion. 4)Is the Animal Ownership Prohibition Subject to "As Applied" Overbreadth Challenges ? As previously note, this bill enjoins convicted persons from owning, possessing, maintaining having custody of, residing with, or caring for any animal for a AB 1117 Page 7 certain period of time. This bill provides no exceptions and removes all judicial discretion. Thus, a person convicted of animal cruelty or neglect cannot reside in his or her own home if another family member happens to have an animal on the property. The family may face the choice between ousting a family member or giving away the family pet or livestock. As applied to some individuals, the provision will require a Hobson's choice. 5)Repeal of Penal Code Section 597f : Penal Code Section 597f does not have a hearing provision, and to that extent has been found unconstitutional. (Carrera v. Bertaini (1976) 63 Cal.App.3d 721, 726-730.) This bill repeals that section in its entirety. 6)Governor's Veto Message of Prior Similar Legislation : In 2009, Governor Schwarzenegger vetoed similar legislation prohibiting animal ownership after conviction of animal abuse or animal cruelty. The Governor stated: "This bill would require a judge to make an order prohibiting a person convicted of specified animal-related crimes from owning, possessing, or caring for any animals for a minimum period of time. This measure is unnecessary. Judges already have the discretion to enter an order forbidding persons from caring for animals if it's warranted. Making this order mandatory could unjustly impact individuals who make a living working with or caring for animals. Consequently, I am unable to sign this bill." 7)Argument in Support : According to The Humane Society of the United States (the sponsor of this bill), "The present animal seizure system is unclear for both the accused and law enforcement. This confusion leads to higher expenses for all parties and creates very serious welfare problems for the animals involved. Examples abound across California of cases where seized animals were held for months and sometimes years while cases are litigated. Agencies rarely recoup the costs of such holding and the animals suffer and degrade. AB 1117's provisions clarify Penal Code SecÝtion] 597.1 for all stakeholders and will dramatically reduce the cost of enforcing California's animal laws while improving outcomes for animals. . . . "Animals must be protected from those who have failed to provide AB 1117 Page 8 them with the basic care required by law. People convicted of harming animals must be considered capable of violence towards other animals." 8)Argument in Opposition : According to the California Judges Association , "Upon a conviction for animal abuse, the court is currently authorized to enjoin the defendant from owning, possessing, or having contact with animals of any kind. This bill would remove the court's discretion and require it to enter such an enjoining order. "An enjoining order would probably be appropriate in most cases of animal abuse, but exceptional cases can arise. The bill tries to anticipate such exceptions, notably in cases where a defendant would suffer substantial hardship were her livestock confiscated (see proposed Penal Code section 597.9(d)), but there might still be other limited set of codified exceptions. For example, under AB 1117, if a blind defendant were convicted under an animal abuse statute for starving her parakeet to death, the court would have no choice but to order the defendant to give up her seeing-eye dog. Courts need flexibility to make orders appropriate to the case at hand. By taking away a court's discretion to do so, AB 1117 goes too far." 9)Related Legislation : a) SB 917 (Lieu) increases the penalty for overloading, torturing, tormenting, et cetera, an animal from up to six months to up to one year. SB 917 is pending hearing by the Senate Appropriations Committee. b) SB 248 (Wyland) would have required persons convicted of misdemeanor animal cruelty to provide DNA samples. SB 248 failed passage in Senate Public Safety Committee. 10)Prior Legislation : AB 243 (Nava), of the 2009-10 Legislative Session, sought to establish a period prohibiting animal ownership after a misdemeanor or felony conviction of animal abuse. AB 243 was vetoed. REGISTERED SUPPORT / OPPOSITION : Support AB 1117 Page 9 Humane Society of the United States (Sponsor) State Humane Association of California (Co-Sponsor) Society for the Prevention of Cruelty to Animals Los Angeles (Co-Sponsor) American Society for the Prevention of Cruelty to Animals Animal Issues Movement Animal Place Butte County Public Health California District Attorneys Association City of Rancho Cucamonga Haven Humane Society Humane Society of the North Bay Animal Services Division Lake Tahoe Humane Society Public Interest Coalition Shasta County District Attorney Santa Cruz SPCA SPCA for Monterey County Opposition Agricultural Council of California Alliance of Western Milk Producers American Civil Liberties Union American Herd Breeding Association Association of California Egg Farmers California Attorneys for Criminal Justice California Grain and Feed Association California Judges Association California Responsible Pet Owners Coalition International Cat Association, Inc. Western United Dairymen Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744