Existing law prohibits a person from owning, possessing, keeping, or training a bird or other animal with the intent that it be used or engaged by themself, their vendee, or by any other person in an exhibition of fighting. Existing law authorizes a court, after a violation of that crime, to order all birds owned, possessed, kept, or trained in violation of that crime by the defendant to be forfeited and humanely disposed of.

This bill would make the possession of a specified number of roosters, as defined, prima facie evidence of a violation of that crime, subject to specified exceptions. By expanding the scope of a crime, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law prohibits a person from owning, possessing, keeping, or training a bird or other animal with the intent that it be used or engaged by themself, their vendee, or by any other person in an exhibition of fighting. Existing law authorizes a court, after a violation of that crime, to order all birds owned, possessed, kept, or trained in violation of that crime by the defendant to be forfeited and humanely disposed of.

This bill would make the possession of a specified number of roosters, as defined, prima facie evidence of a violation of that crime, subject to specified exceptions. By expanding the scope of a crime, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Date of Hearing: April 23, 2024

Chief Counsel: Gregory Pagan

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Kevin McCarty, Chair

ABPCA Bill Id:AB 2964

Author:(Hart) – As Amended Ver:March 21, 2024

SUMMARY:

Provides that it shall be prima facie evidence of an intent to engage in cockfighting if any person keeps or raises more than 3 roosters per acre of property, or more than 25 roosters on any property, except as specified. Specifically, this bill:

1. Creates a rebuttable presumption that any person who keeps or raises more than the specified number of roosters intends to engage in an exhibition of fighting does not apply to the following:
   
   1. Commercial poultry ranches registered with the Department of Food and Agriculture that primarily produces eggs or meat for commercial sale of food;
      
   2. Public or private schools registered with the State Department of education;
      
   3. Government operated animal shelters;
      
   4. Nonprofit animal welfare organizations, as specified; and,
      
   5. A 4-H or Future Farmers of America (FFA) project that involves roosters, if written approval has been provided 4-H or FFA.
      
2. Defines “rooster” as any male chicken that is any of the following:
   
   1. Is six months or older;
      
   2. Has full adult plumage; and,
      
   3. Is capable of crowing.

EXISTING LAW:

1. Provides that any person who causes any animal to fight with another animal, or permits the same to be done on any property under his or her control, or aids or abets the fighting of any animal is present as a spectator is guilty of a misdemeanor, punishable by up to six months in the county jail; a by a fine not to exceed $1,000; or both. (Pen. Code, § 597b, subd. (a).)
   
2. 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; by a fine not to exceed $5,000; or by both. (Pen. Code, § 597b, subd. (b).)
   
3. Provides that any person who owns, possesses, or trains any animal with the intent that the animal engaged in an exhibition of fighting is guilty of a misdemeanor, punishable by imprisonment in the county jail not to exceed six months; by a fine not to exceed $1,000; or by both. (Pen. Code, § 597c, subd. (a).)
   
4. Provides that any person who owns, possesses, or trains a cock, or other bird with the intent that the cock or other bird shall be engaged in an exhibition of fighting is guilty of a crime punishable by imprisonment in the county jail not to exceed one year; by a fine not to exceed $5,000; or by both. (Pen. Code, § 597c, subd. (b).)
   
5. Provides 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 six months; by a fine not to exceed $1,000; or by both. (Pen. Code, § 597j.)
   
6. Provides that any person who maliciously and intentionally maims, mutilates, tortures, or wounds a living animal or maliciously and intentionally kills an animal is guilty of either a misdemeanor or felony, punishable by imprisonment in a county jail for up to one year and/or by a fine up to $20,000; or by imprisonment in state prison for 16 months, 2 or 3 years and/or a fine up to $20,000. (Pen. Code, § 597, subd. (a).
   
7. Provides that any person who overdrives, overloads, overworks, tortures, torments, deprives of drink, cruelly beats, or mutilates an animal is guilty of either a misdemeanor or felony, punishable by imprisonment in a county jail for up to one year and/or by a fine up to $20,000; or by imprisonment in state prison for 16 months, 2 or 3 years and/or a fine up to $20,000. (Pen. Code, § 597, subd. (b).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "Assembly Bill 2964 will deter illegal cockfighting in California by setting a clear criminal standard of evidence to prosecute violations of the State's cockfighting ban. The bill creates a rebuttable presumption of cockfighting for criminal prosecution, if an individual owns more than three roosters per acre, or exceeds 25 roosters on any property. The owner must prove through evidence and arguments that they are not engaging in cockfighting activities. Top of FormAB 2964 will protect animal welfare and prevent the potential diseases associated with cockfighting.”
   
2. Presumption of Innocence and Burden of Proof: Penal Code Section 1096 provides, “A defendant in a criminal case is presumed innocent until the contrary is proved, and in case of a reasonable doubt whether his or her guilt is satisfactorily shown he or she is entitled to an acquittal, but the effect of this presumption is only to place upon the state the burden of proving him or guilty beyond a reasonable doubt.” It appears that the purpose of this bill is to shift the burden of proof from the prosecution to the defendant in cockfighting cases, as evidenced by the author’s statement, “This bill creates a rebuttable presumption for cockfighting prosecution if an individual owns more than 3 roosters per acre, or exceeds 25 roosters on any property. The owner must prove through evidence and argument that they are not engaged in cockfighting activities.” This is clearly an unconstitutional shift of the burden of proof from the state to the defendant. Due to the burden of proof in criminal cases being on the state, California criminal does not allow rebuttable presumptions that shift the burden of proof to the defendant. Also, the prosecution must prove each every element of the charged offense beyond a reasonable doubt, this bill unconstitutionally lightens that burden.
   
3. Argument in Support: According to the California District Attorneys Association, “I am writing in support of your measure, AB 2964, which would make possession of a specified number of roosters prima facie evidence of cockfighting in violation of Penal Code section 597(j).

“Despite existing law criminalizing cockfighting, breeders continue to raise and sell roosters for fighting. They typically maintain significant numbers of birds in unsanitary conditions, increasing the risk of disease transmission, which can be detrimental to commercial and backyard poultry and public health. Additionally, prosecuting illegal breeders can be difficult, requiring significant resources to prove that the birds are possessed for the purpose of fighting. By creating a rebuttable presumption that a certain number of birds is prima facie evidence of cockfighting, this bill will strengthen our animal welfare laws and aid in deterring this illegal and inhumane practice.”

1. Argument in Opposition: According to the California Attorneys for Criminal Justice, “CACJ disapproves of animal cruelty, including but not limited to cockfighting. However, CACJ also holds great respect for the presumption of innocence.

“The presumption of innocence is the “bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law.’” (In re Winship (1970) 397 U.S. 358, 363.) As the high court has explained, mandatory presumptions unconstitutionally shift to defendant the burden of persuasion on element of intent once the state has proven certain predicate facts. (Sandstrom v. Montana (1979) 442 U.S. 510; Ulster County Court v. Allen (1979). 442 U.S. 140, 157–163.) A mandatory presumption instructs the jury that it must infer the presumed fact if the State proves certain predicate facts. (Francis v. Franklin (1985) 471 U.S. 307, 314.). These mandatory presumptions impermissibly infringe on the presumption of innocence and violate the due process clause because they relieve the State of the burden of persuasion on an element of an offense. (Ibid.) Once a mandatory presumption is created, even the fact that jury was informed that the presumption “may be rebutted” will not cure the infirmity in rule. A mandatory rebuttable presumption is “perhaps less onerous from the defendant's perspective [than an irrebuttable presumption], but it is no less unconstitutional.” (Id. at p. 317.) Supreme Court law makes clear that “[s]uch shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause. [citation.]” (Ibid.)

“Penal Code section 597j has a clear requirement of intent that the animals be used for exhibition or fighting. By declaring that “It shall be prima facie evidence of a violation of this section [animal cruelty] for any person to keep or raise more than 3 roosters per acre of property, or more than 25 roosters on any property, regardless of total acreage” this law creates an unconstitutional presumption regarding animal cruelty by inferring unlawful criminal intent merely based on possessing three roosters on an acre of property. That this evidence only creates a “prima facie” case (and may be rebuttable) it still violates the presumption of innocence and the due process clause. (to say nothing of the fact that owning three roosters on an acre of property is hardly strong evidence of intent to engage in illegal cockfighting).”

REGISTERED SUPPORT / OPPOSITION:

Support

The Humane Society of the United State (Sponsor)
California Animal Welfare Association
California District Attorneys Association
California Farm Bureau
Eggs Unlimited LLC
Humane Society Veterinary Medical Association
San Diego Humane Society and Spca
Social Compassion in Legislation
Spca Monterey County

Oppose

California Attorneys for Criminal Justice
California Public Defenders Association

Analysis Prepared by:

Gregory Pagan / PUB. S. / (916) 319-3744