BILL ANALYSIS                                                                                                                                                                                                    



                                                                    AB 2052


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          Date of Hearing:  April 19, 2016
          Chief Counsel:     Gregory Pagan


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                       Reginald Byron Jones-Sawyer, Sr., Chair





          AB  
                      2052 (Williams) - As Amended  April 13, 2016




          SUMMARY:  Requires a person convicted of two or more violations  
          of animal cruelty, dog fighting, transporting an animal in a  
          cruel or inhuman manner, or cockfighting to be sentenced to  
          consecutive terms of imprisonment.   

          EXISTING LAW:  

          1)Provides that every person who maliciously and intentionally  
            maims, mutilates, tortures, or wounds a living animal, or  
            maliciously and intentionally kills an animal is guilty of a  
            criminal offense and as a felony is punishable by imprisonment  
            in a county jail for 16 months, two, or three years, or by a  
            fine up to $20,000, or by both that fine and imprisonment, or  
            alternatively, as a misdemeanor by imprisonment in a county  
            jail, or by a fine up to $20,000, or by both that fine and  
            imprisonment. (Pen. Code,  597, subd, (a).)

          2)States that when a person overdrives, overloads, drives when  
            overloaded, overworks, tortures, torments, deprives of  
            necessary sustenance, drink, or shelter, cruelly beats,  
            mutilates, or cruelly kills any animal, or causes or procures  
            any animal to be so overdriven, overloaded, driven when  
            overloaded, overworked, tortured, tormented, deprived of  








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            necessary sustenance, drink, shelter, or to be cruelly beaten,  
            mutilated, or cruelly killed; and whoever, having the charge  
            or custody of any animal, either as owner or otherwise,  
            subjects any animal to needless suffering, or inflicts  
            unnecessary cruelty upon the animal, or in any manner abuses  
            any animal, or fails to provide the animal with proper food,  
            drink, or shelter or protection from the weather, or who  
            drives, rides, or otherwise uses the animal when unfit for  
            labor is guilty of a criminal offense and as a felony is  
            punishable by imprisonment in a county jail for 16 months,  
            two, or three years, or by a fine up to $20,000, or by both  
            that fine and imprisonment, or alternatively, as a misdemeanor  
            by imprisonment in a county jail, or by a fine up to $20,000,  
            or by both that fine and imprisonment.  (Pen. Code,  597,  
            subd. (b).)
            
          3)Specifies that  a person who maliciously and intentionally  
            maims, mutilates, or tortures any mammal, bird, reptile,  
            amphibian, or fish, is a criminal offense and as a felony is  
            punishable by imprisonment in a county jail for 16 months,  
            two, or three years, or by a fine up to $20,000, or by both  
            that fine and imprisonment, or alternatively, as a misdemeanor  
            by imprisonment in a county jail, or by a fine up to $20,000,  
            or by both that fine and imprisonment. (Pen. Code,  597,  
            subd. (c).)

          4)Provides that any person that does any of the following is  
            guilty of a felony and is punishable by imprisonment in a  
            county jail for 16 months, two or three years, or by a fine  
            not to exceed $50,000, or by both imprisonment and a fine:

             a)   Owns, possesses, keeps, or trains any dog, with the  
               intent that the dog shall be engaged in an exhibition of  
               fighting with another dog;

             b)   For amusement or gain, causes any dog to fight with  
               another dog, or causes any dogs to injure each other; and,

             c)   Permits any of the above acts to be done on any premises  
               under his or her control, or aid or abets that act.  (Pen.  
               Code,  597.5, subd. (a).)









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          5)States that any person that intentionally causes injury to or  
            the death of any guide, signal or service dog, as defined,  
            while the dog is in the discharge of its duties, is guilty of  
            a misdemeanor punishable by imprisonment in a county jail not  
            to exceed one year, by a fine not exceeding 10,000, or by both  
            a fine and imprisonment.  (Pen. Code  600.2.)

          6)Provides that any person who maliciously strikes, beats,  
            kicks, stabs, shoots, or throws, hurls, or projects any rock  
            or object at any horse being used by a peace officer, or any  
            dog being supervised by a peace officer in the performance of  
            his or her duties is a public offense.  If the injury  
            inflicted is a serious injury, as specified, the person shall  
            be punished as a felony by imprisonment in a county jail for  
            16 months, two or three years, and as a misdemeanor by  
            imprisonment in a county jail for a term not exceeding one  
            year, or by a fine not exceeding two thousand dollars, or by  
            both a fine and imprisonment.  If the injury inflicted is not  
            a serious injury, the person shall be punished by imprisonment  
            in the county jail for not exceeding one year, or by a fine  
            not exceeding one thousand dollars, or by both a fine and  
            imprisonment. (Pen. Code,  600, subd. (a).)

          7)Requires that if a defendant is granted probation for a  
            conviction of animal cruelty, the court shall order the  
            defendant to pay for, and successfully complete, counseling,  
            as determined by the court, designed to evaluate and treat  
            behavior or conduct disorders. If the court finds that the  
            defendant is financially unable to pay for that counseling,  
            the court may develop a sliding fee schedule based upon the  
            defendant's ability to pay. The counseling shall be in  
            addition to any other terms and conditions of probation,  
            including any term of imprisonment and any fine. If the court  
            does not order custody as a condition of probation for a  
            conviction under this section, the court shall specify on the  
            court record the reason or reasons for not ordering custody.  
            This does not apply to cases involving police dogs or horses  
            as described in Section 600. (Pen. Code,  597, subd. (h).)

          8)Provides that any person who causes any animal, not including  
            a dog, to fight with another animal, or permits the same to be  
            done on any property under his or her control, or aids or  








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            abets the fighting of any animal is guilty of a misdemeanor,  
            punishable by up to one year in the county jail or by a fine  
            not to exceed $10,000, or both imprisonment and a fine.  (Pen.  
            Code  597b, subd. (a).)

          9)Provides that any person who causes a cock to fight with  
            another cock, or permits the same to be done on any property  
            under his or her control, and any person who aid or abets the  
            fighting of any cock or is present as a spectator is guilty of  
            a misdemeanor, punishable by imprisonment in the county jail  
            not to exceed one year, or by a fine not to exceed $10,000, or  
            by both imprisonment and a fine.  (Pen. Code,  597b, subd.  
            (b).)




          10)Provides that any person who owns, possesses, keeps or trains  
            any bird or other animal with the intent that that it be used  
            an exhibition of fighting is guilty of a misdemeanor,  
            punishable by imprisonment in the county jail not to exceed  
            one year; by a fine not to exceed $10,000, or by both  
            imprisonment and a fine.  (Penal Code Section 597j.)

          11)States that it is misdemeanor for any person to tie or attach  
            or fasten any live animal to any machine or device propelled  
            by any power for the purpose of causing such animal to be  
            pursued by a dog or dogs and the offense is punishable by up  
            to one year in a county jail, by a fine not to exceed $2,500,  
            or by both imprisonment and a fine.  (Pen. Code,  597h.)

          12)Directs that any person who owns, possesses, or trains any  
            bird or animal with the intent that the cock or other bird  
            shall be engaged in an exhibition of fighting by his or her  
            vendee or any other person is guilty of a misdemeanor,  
            punishable by imprisonment in the county jail not exceed one  
            year, by a fine not to exceed $10,000; or by both imprisonment  
            and a fine.  (Pen. Code,  597j.), 

          13)States that ever person who willfully abandons any animal is  
            guilty of a misdemeanor punishable by imprisonment in a county  
            jail not to exceed six months, by a fine not to exceed $1,000,  








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            or by both a fine and imprisonment (Penal Code Section 597s.)

          FISCAL EFFECT:  Unknown

          COMMENTS:  

          1)Author's Statement:  According to the author, "This bill was  
            sparked by a shocking case of animal cruelty and domestic  
            violence in Santa Barbara where a 19-year old foreign exchange  
            student strangled his girlfriend and beat, burned and raped  
            her five-month old puppy. The community was outraged that the  
            suspect only received one year in jail and six months of  
            probation when the maximum sentence allowed under state law is  
            seven and a half years.  This sentence also included domestic  
            violence and other mental health treatment.
            "AB 2052 will ensure that animal cruelty cases are  
            appropriately sentenced. Far too many times we hear cases  
            where repeat animal abusers get slaps on the wrist and  
            continue to hurt animals. This bill would require a person who  
            sentenced for two or more current convictions for animal abuse  
            offenses to be sentenced to consecutive terms. Consecutive  
            sentencing reflects the violent nature of these actions that  
            all too often spill over from violence to animals to violent  
            actions towards other humans including loved ones."


          2)Limits Court's Discretion:  When a person is convicted of two  
            or more crimes whether in the same proceeding or court or in  
            different proceedings or courts, and whether by judgment  
            rendered by the same judge or by different judges, the second  
            or other subsequent judgment upon which sentence is ordered to  
            be executed shall direct whether the terms of imprisonment or  
            any them to which he or she is sentenced shall run  
            concurrently or consecutively (Penal Code Section 669).  This  
            bill contradicts this section by limiting the court's  
            discretion to impose either concurrent or consecutive sentence  
            in order to achieve a just and appropriate sentence.

          By limiting the court's discretion, this bill could lead to  
            wildly disproportionate sentences.  For example, Penal Code  
            Section 597 (b) (animal neglect) makes it a felony punishable  
            by 16 months, two, or three years in a county jail, or a  








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            misdemeanor punishable by up to one year in county jail to  
            fail to provide an animal with "proper food, drink, or  
            shelter, or protection from the weather".  A person could fail  
            to properly care for twenty cats and be charged and convicted  
            of twenty counts of animal abuse and neglect.  This bill, by  
            requiring that each conviction be sentenced consecutively,  
            would result in a minimum sentence of twenty years in a county  
            jail, and that would be if the crimes were charged as a  
            misdemeanor.  Is it a good policy to limit the court's  
            discretion in these types of cases?
           
          3)Double Punishment for the Same Act.  An act or omission that  
            is punishable in different way by different provisions of law  
            shall be punished under the provision that provides for the  
            longest potential term of imprisonment, but in no case shall  
            the act or omission be punished by more than one provision  
            (Penal Code Section 654).  An example, where this provision  
            would a be applicable, is if a person convicted under the  
            general animal abuse statute (Penal Code Section 597 subd. a)  
            was, also, convicted of the more specific statute prohibiting  
            dog fighting (Penal Code Section 597.5) for fighting a dog.   
            Penal Code Section 654 prohibits sentencing for more than one  
            of these provisions because it would be an unconstitutional  
            double punishment for the same act (dog fighting) made  
            punishable by different code sections.  This bill requires  
            that these crimes be sentenced consecutively which, in this  
            instance, would be an unconstitutional double punishment.



          4)Argument in Opposition:  According to the American Civil  
            Liberties Union, " Penal Code section 654 states in relevant  
            part:



               (a) An act or omission that is punishable in different ways  
               by different provisions of law shall be punished under the  
               provision that provides for the longest potential term of  
               imprisonment, but in no case shall the act or omission be  
               punished under more than one provision.









                                                                    AB 2052


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           "The courts have held "[t]he purpose of the statute is 'to  
           prevent multiple punishment for a single act or omission, even  
           though that act or omission violates more than one statute and  
           thus constitutes more than one crime.'" (People v. Davey (2005)  
           133 Cal.App.4th 384, 389.) In addition, Penal Code section 654  
           "has long been interpreted also to preclude multiple punishment  
           for more than one violation of a single Penal Code section, if  
           the violations all arise out of a single criminal act." (Ibid.)  
           Thus, in Neal v. State of California (1960) 55 Cal.2d 11, 19, the  
           California Supreme Court held that section 654 precluded  
           consecutive sentence for arson committed for the purpose of  
           killing people in the building. And in Wilkoff v. Superior Court  
           (1985) 38 Cal.3d 345, 349, the Court held that section 654 bars  
           multiple convictions for driving under the influence based on one  
           incident, even if driver causes injury to several people. 

           "In addition, the U.S. Constitution also protects against double  
           punishment for the same criminal conduct. "The Fifth Amendment  
           guarantee against double jeopardy protects not only against a  
           second trial for the same offense, but also 'against multiple  
           punishments for the same offense.'" (  Whalen v. U.S.  (1980) 445  
           U.S. 684, 688 [quoting North Carolina v. Pearce (1969) 395 U.S.  
           711, 717.]) 

           "AB 2052 is contrary to the basic due process protections  
           provided by the Fifth Amendment and Penal Code section 654 by  
           mandating consecutive sentences for the same course of conduct.



           "Judges already have discretion to impose consecutive sentences  
           in appropriate cases when it does conflict with due process.  
           Specifically, "multiple crimes that arise from a single course  
           of criminal conduct may be punished separately, notwithstanding  
            section 654  , if the acts constituting the various crimes serve  
           separate criminal objectives." (People v. Davey, 133  
           Cal.App.4th at 390.) Similarly, there is an exception to the  
           bar on multiple punishments "for acts of violence against a  
           person with multiple victims." (Ibid.). Under these exceptions,  
           the courts currently have jurisdiction to impose concurrent  
           sentences when warranted and consistent with due process. By  
           mandating consecutive sentences even when these exceptions do  








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           not apply, AB 2052 will lead to sentencing errors, additional  
           litigation and ultimately reversals of sentences found to be  
           barred by Penal Code section 654 and unconstitutional under the  
           Due Process Clause of the Fifth Amendment."
          REGISTERED SUPPORT / OPPOSITION:

          Support

          None

          Opposition

          American Civil Liberties Union
          California Attorneys for Criminal Justice
            
          Analysis Prepared  
          by:              Gregory Pagan / PUB. S. / (916) 319-3744