Bill Text: CA SB318 | 2009-2010 | Regular Session | Chaptered
Bill Title: Dogfighting forfeitures.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2009-10-11 - Chaptered by Secretary of State. Chapter 302, Statutes of 2009. [SB318 Detail]
Download: California-2009-SB318-Chaptered.html
BILL NUMBER: SB 318 CHAPTERED
BILL TEXT
CHAPTER 302
FILED WITH SECRETARY OF STATE OCTOBER 11, 2009
APPROVED BY GOVERNOR OCTOBER 11, 2009
PASSED THE SENATE JUNE 1, 2009
PASSED THE ASSEMBLY AUGUST 24, 2009
AMENDED IN SENATE MAY 28, 2009
AMENDED IN SENATE MAY 5, 2009
INTRODUCED BY Senator Calderon
FEBRUARY 25, 2009
An act to add Section 598.1 to the Penal Code, relating to
dogfighting.
LEGISLATIVE COUNSEL'S DIGEST
SB 318, Calderon. Dogfighting forfeitures.
Existing law makes dogfighting, as specified, an offense.
This bill would provide forfeiture procedures for certain property
that was acquired through the crime of dogfighting, as specified.
The bill would state findings and declarations of the Legislature in
that regard, and the intent of the Legislature in connection with the
forfeiture proceeding provisions.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. (a) The Legislature finds and declares the following:
(1) Dogfighting is an insidious underground organized crime and,
notwithstanding its absolute prohibition in America, this crime has
reached epidemic proportions in all urban communities and continues
to thrive in many rural areas as well.
(2) Many communities have been morally, socially, and culturally
scarred by the continuing presence of dogfighting. Children who are
exposed to the unfathomable violence of dogfighting are conditioned
to believe that violence is normal and are systematically
desensitized to the consequential suffering.
(3) Dog fighters are violent criminals who engage in a whole host
of peripheral criminal activities. Many are heavily involved in
organized crime, racketeering, drug distribution, and gang-related
criminal activity, and they arrange and attend the fights as a forum
for gambling and drug trafficking. These activities, both
individually and collectively, present a clear and present danger to
public order and safety and are not constitutionally protected.
(4) An effective means of punishing and deterring the criminal
activities of dog fighters is through forfeiture of the property,
both personal and real, profits, proceeds, and the instrumentalities
acquired, accumulated, or used by dogfighting participants,
organizers, transporters of animals and equipment, property owners
who allow their premises to be used for dogfighting and other
activities in support of dogfighting, and breeders and trainers of
fighting dogs, and persons who steal and illegally obtain dogs and
other animals for fighting, including bait and sparring animals.
(5) Dogfighting not only encourages and furthers antisocial values
and violence but also results in the antisocialization of dogs,
thereby making them a danger to the community at large. Police
officers, firefighters, utility, and other municipal workers are at
increasing risk in the course of their employment on both public and
private property because of the epidemic number of dogs that have
been bred and trained to fight each other, as are other animals,
small children, and adults.
(6) Public animal shelters, humane societies, and nonprofit animal
rescue and adoption groups that rescue and care for animals bear
much of the social, economic, and moral burden caused by dogfighting.
Specialized multiagency law enforcement entities, such as
anticruelty task forces comprised of municipal animal control, local
police, sheriff, and city and district attorneys investigating,
arresting, and prosecuting dogfighting and other crimes against
animals, are a critical component of the goal of reducing and
eliminating this heinous crime in California, yet these agencies
suffer from limited resources.
(7) Forfeited property, profits, proceeds, and instrumentalities
acquired, accumulated, or used by dogfighting participants and others
acting in support of dogfighting should be sold to support efforts
to care for abused animals and the law enforcement entities specially
formed to address dogfighting and animal cruelty, wherever possible.
Distribution of the above should be determined by the state or local
governing bodies, depending upon which is responsible for the
prosecution as a result of which the proceeds were seized.
(b) It is the intent of the Legislature in enacting this act to
seek the eradication of dogfighting by systematically reducing the
economic resources available to those criminals who facilitate and
support the crime of dogfighting.
SEC. 2. Section 598.1 is added to the Penal Code, to read:
598.1. (a) The prosecuting agency in a criminal proceeding in
which the defendant has been charged with the commission of any of
the crimes listed in subdivision (a) of Section 597.5 may, in
conjunction with the criminal proceeding, file a petition for
forfeiture as provided in subdivision (c). If the prosecuting agency
has filed a petition for forfeiture pursuant to subdivision (c) and
the defendant is convicted of any of the crimes described in
subdivision (a) of Section 597.5, the assets listed in subdivision
(b) shall be subject to forfeiture upon proof of the elements of
subdivision (b) and in accordance with this section.
(b) (1) Any property interest, whether tangible or intangible,
that was acquired through the commission of any of the crimes listed
in subdivision (a) of Section 597.5 shall be subject to forfeiture,
including both personal and real property, profits, proceeds, and the
instrumentalities acquired, accumulated, or used by dogfighting
participants, organizers, transporters of animals and equipment,
breeders and trainers of fighting dogs, and persons who steal or
illegally obtain dogs or other animals for fighting, including bait
and sparring animals.
(2) Notwithstanding paragraph (1), the following property shall
not be subject to forfeiture under this section:
(A) Property solely owned by a bona fide purchaser for value, who
was without knowledge that the property was intended to be used for a
purpose which would subject it to forfeiture under this section, or
is subject to forfeiture under this section.
(B) Property used as a family residence and owned by two or more
inhabitants, one of whom had no knowledge of its unlawful use.
(c) (1) If the prosecuting agency proceeds under subdivision (a),
that agency shall, in conjunction with the criminal proceeding, file
a petition for forfeiture with the superior court of the county in
which the defendant has been charged with the commission of any of
the crimes listed in subdivision (a) of Section 597.5, that shall
allege that the defendant has committed those crimes and the property
is forfeitable pursuant to subdivision (a).
(2) The prosecuting agency shall make service of process of a
notice regarding that petition upon every individual who may have a
property interest in the alleged proceeds, which notice shall state
that any interested party may file a verified claim with the superior
court stating the amount of the party's claimed interest and an
affirmation or denial of the prosecuting agency's allegation.
(3) If the notices cannot be served by registered mail or personal
delivery, the notices shall be published for at least three
consecutive weeks in a newspaper of general circulation in the county
where the property is located.
(4) If the property alleged to be subject to forfeiture is real
property, the prosecuting agency shall, at the time of filing the
petition for forfeiture, record a lis pendens in each county in which
real property alleged to be subject to forfeiture is located.
(5) The judgment of forfeiture shall not affect the interest of
any third party in real property that was acquired prior to the
recording of the lis pendens.
(6) All notices shall set forth the time within which a claim of
interest in the property seized is required to be filed pursuant to
this section.
(d) Any person claiming an interest in the property or proceeds
seized may, at any time within 30 days from the date of the first
publication of the notice of seizure, or within 30 days after receipt
of the actual notice, file with the superior court of the county in
which the action is pending a verified claim stating his or her
interest in the property or proceeds. A verified copy of the claim
shall be given by the claimant to the Attorney General, or the
district or city attorney, whichever is the prosecuting agency of the
underlying crime.
(e) (1) If, at the end of the time set forth in subdivision (d),
an interested person, other than the defendant, has not filed a
claim, the court, upon a motion, shall declare that the person has
defaulted upon his or her alleged interest, and that interest shall
be subject to forfeiture upon proof of the elements of subdivision
(b).
(2) The defendant may admit or deny that the property is subject
to forfeiture pursuant to this section. If the defendant fails to
admit or deny, or fails to file a claim of interest in the property
or proceeds, the court shall enter a response of denial on behalf of
the defendant.
(f) (1) The forfeiture proceeding shall be set for hearing in the
superior court in which the underlying criminal offense will be
tried.
(2) If the defendant is found guilty of the underlying offense,
the issue of forfeiture shall be promptly tried, either before the
same jury or before a new jury in the discretion of the court, unless
waived by the consent of all parties.
(g) At the forfeiture hearing, the prosecuting agency shall have
the burden of establishing beyond a reasonable doubt that the
defendant was engaged in any of the crimes described in subdivision
(a) of Section 597.5 and that the property comes within the
provisions of subdivision (b).
(h) Concurrent with, or subsequent to, the filing of the petition,
the prosecuting agency may move the superior court for the following
pendente lite orders to preserve the status quo of the property
alleged in the petition of forfeiture:
(1) An injunction to restrain all interested parties and enjoin
them from transferring, encumbering, hypothecating, or otherwise
disposing of that property.
(2) Appointment of a receiver to take possession of, care for,
manage, and operate the assets and properties so that the property
may be maintained and preserved.
(i) No preliminary injunction may be granted or receiver appointed
without notice to the interested parties and a hearing to determine
that the order is necessary to preserve the property, pending the
outcome of the criminal proceedings, and that there is probable cause
to believe that the property alleged in the forfeiture proceedings
are proceeds or property interests forfeitable under subdivision (a).
However, a temporary restraining order may issue pending that
hearing pursuant to the provisions of Section 527 of the Code of
Civil Procedure.
(j) If the trier of fact at the forfeiture hearing finds that the
alleged property or proceeds are forfeitable pursuant to subdivision
(a), and that the defendant was convicted of a crime listed in
subdivision (a) of Section 597.5, the court shall declare that
property or proceeds forfeited to the state or local governmental
entity, subject to distribution as provided in subdivision (l).
(k) (1) If the trier of fact at the forfeiture hearing finds that
the alleged property is forfeitable pursuant to subdivision (a) but
does not find that a person holding a valid lien, mortgage, security
interest, or interest under a conditional sales contract acquired
that interest with actual knowledge that the property was to be used
for a purpose for which forfeiture is permitted, and the amount due
to that person is less than the appraised value of the property, that
person may pay to the state or the local governmental entity that
initiated the forfeiture proceeding the amount of the registered
owner's equity, which shall be deemed to be the difference between
the appraised value and the amount of the lien, mortgage, security
interest, or interest under a conditional sales contract. Upon that
payment, the state or local governmental entity shall relinquish all
claims to the property.
(2) If the holder of the interest elects not to make that payment
to the state or local governmental entity, the property shall be
deemed forfeited to the state or local governmental entity.
(3) The appraised value shall be determined as of the date
judgment is entered either by agreement between the legal owner and
the governmental entity involved, or if they cannot agree, then by a
court-appointed appraiser for the county in which the action is
brought.
(4) If the amount due to a person holding a valid lien, mortgage,
security interest, or interest under a conditional sales contract is
less than the value of the property and the person elects not to make
payment to the governmental entity, the property shall be sold at
public auction by the Department of General Services or by the local
governmental entity which shall provide notice of that sale by one
publication in a newspaper published and circulated in the city,
community, or locality where the sale is to take place. Proceeds of
the sale shall be distributed pursuant to subdivision (l).
(l) Notwithstanding that no response or claim has been filed
pursuant to subdivision (d), in all cases where property is forfeited
pursuant to this section and is sold by the Department of General
Services or a local governmental entity, the property forfeited or
the proceeds of the sale shall be distributed by the state or local
governmental entity, as follows:
(1) To the bona fide or innocent purchaser, conditional sales
vendor, or holder of a valid lien, mortgage, or security interest, if
any, up to the amount of his or her interest in the property or
proceeds, when the court declaring the forfeiture orders a
distribution to that person. The court shall endeavor to discover all
those lienholders and protect their interests and may, at its
discretion, order the proceeds placed in escrow for a period not to
exceed 60 additional days to ensure that all valid claims are
received and processed.
(2) To the Department of General Services or local governmental
entity for all expenditures made or incurred by it in connection with
the sale of the property, including expenditures for any necessary
repairs, storage, or transportation of any property seized under this
section.
(3) To local nonprofit organizations exempt under Section 501(c)
(3) of the Internal Revenue Code, the primary activities of which
include ongoing rescue, foster, or other care of animals that are the
victims of dogfighting, and to law enforcement entities, including
multiagency task forces, that actively investigate and prosecute
animal fighting crimes.
(4) Any remaining funds not fully distributed to organizations or
entities pursuant to paragraph (3) shall be deposited in an escrow
account or restricted fund to be distributed as soon as possible in
accordance with paragraph (3).
