BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 1234| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 445-6614 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ UNFINISHED BUSINESS Bill No: SB 1234 Author: Kuehl (D), et al Amended: 8/17/04 Vote: 21 SENATE PUBLIC SAFETY COMMITTEE : 4-0, 4/27/04 AYES: Vasconcellos, Burton, Romero, Sher NO VOTE RECORDED: McPherson, Margett SENATE APPROPRIATIONS COMMITTEE : 8-5, 5/20/04 AYES: Alpert, Bowen, Burton, Escutia, Karnette, Machado, Murray, Speier NOES: Battin, Aanestad, Ashburn, Johnson, Poochigian SENATE FLOOR : 22-10, 5/25/04 AYES: Alarcon, Alpert, Bowen, Burton, Cedillo, Chesbro, Ducheny, Dunn, Escutia, Figueroa, Karnette, Kuehl, Machado, Murray, Perata, Romero, Scott, Sher, Soto, Speier, Torlakson, Vasconcellos NOES: Aanestad, Ackerman, Ashburn, Battin, Brulte, Denham, Hollingsworth, Margett, McClintock, Oller NO VOTE RECORDED: Florez, Johnson, McPherson, Morrow, Ortiz, Poochigian, Vincent, Vacancy ASSEMBLY FLOOR : 51-23, 8/23/04 - See last page for vote SUBJECT : Crimes: civil rights SOURCE : Equality California CONTINUED SB 1234 PageB DIGEST : This bill redrafts, reorganizes and expands laws relating to hate crimes. Assembly Amendments (1) add clarifying language relative to violations that occur in other provisions of law, and (2) add double-jointing language. ANALYSIS : This bill creates a uniform statutory definition of "hate crime" and includes in this definition "those associated with a person or group," expands and clarifies criminal penalties and penalty enhancements for hate crimes, requires the Commission on Peace Officer Standards and Training (POST) to develop hate-crime-specific content for law enforcement raining, requires the Judicial Council of California to issue a Rule of Court pertaining to hate crime sentencing, requires courts to take steps to protect the health, safety and privacy of alleged victims of hate crimes, requires the State Department of Corrections (DOC) and the State Department of the Youth Authority (DYA) to work with other law enforcement agencies to prevent hate crimes, within existing resources, requires local law enforcement agencies to report to the State Attorney General (AG) on crimes against victims who are homeless, thereby creating a state-mandated local program, requires the AG to report to the Legislature annually as to crimes against homeless victims, and makes conforming changes to the Civil, Education, Government and Penal Codes. Existing law provides that no person, whether or not acting under color of law, shall by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States because of the other person's race, color, religion, ancestry, national origin, disability, gender, or sexual orientation, or because he/she perceives that the other person has one or more of those characteristics. Existing law also provides that no person, whether or not acting under color of law, shall knowingly deface, damage, or destroy the real or personal property of any other person for the purpose of intimidating or interfering with the free exercise or enjoyment of any right or privilege secured to the other SB 1234 PageC person by the Constitution or laws of this state or by the Constitution or laws of the United States, because of the other person's race, color, religion, ancestry, national origin, disability, gender, or sexual orientation, or because he/she perceives that the other person has one or more of those characteristics. Existing law requires that any person who violates these provisions be punished by imprisonment in a county jail not to exceed one year, or by a fine not to exceed $5,000, or by both that fine and imprisonment. Existing law provides, except in the case of a person punished under the above provisions, that any crime that is not made punishable by imprisonment in the state prison shall be punishable by imprisonment in the state prison or in a county jail not to exceed one year, by a fine not to exceed $10,000, or by both that imprisonment and fine, if the crime is committed against the person or property of another for the purpose of intimidating or interfering with that other person's free exercise or enjoyment of any right secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States and because of the other person's race, color, religion, ancestry, national origin, disability, gender, or sexual orientation, or because the defendant perceives that the other person has one or more of those characteristics, under specified circumstances, including that the crime against property causes damage in excess of $500. This bill establishes a standard definition of a hate crime, applies that definition, reorganizes the laws relating to hate crimes, and makes other consistent changes to hate crime and bias-motivated laws. Revises State Commission on Peace Officer Standards (POST) training requirements, and makes other related changes. Specifically, this bill: 1. Defines "hate crime" for the purposes of state law, unless an explicit provision of law or the context clearly requires a different meaning, as a criminal act committed, in whole or in part, because the victim is perceived to have one or more of the following actual or perceived characteristics: disability, gender, nationality, race or ethnicity, religion, sexual orientation, or association with a person or group with SB 1234 PageD one or more of these actual or perceived characteristics. 2. Defines the terms "association with a person or group with these actual or perceived characteristics," "disability," "gender," "in whole or in part because of," "nationality," "race or ethnicity," "religion," "sexual orientation," and "victim." 3. Amends (a) the bias-motivated, first-degree murder statute, (b) the bias-motivated crime against a person or property statutes, (c) the bias-motivated enhancement, (d) the bias-motivated, sentencing aggravation, (d) the use of explosives to terrorize, and (e) Education Code non-discrimination statutes to incorporate the new hate crime definition. Provides that all state and local agencies shall use the new hate crime definition, except as specified. 4. Lowers the threshold amount of damage in the commission of a bias-motivated vandalism from $500 to $400, consistent with other vandalism statutes. 5. Provides that the revised definition of "gender" shall apply throughout the Penal Code, unless an explicit provision of law or context requires a different meaning, and changes the cross-reference in the definition of "sex" within the Fair Employment and Housing Act to reflect the revised definition of "gender." 6. States legislative intent regarding hate crime sentencing and directs Judicial Council of California to develop a rule of court guiding hate crime sentencing. 7. Amends and renumbers the existing provision establishing penalties for a willful and knowing violation of an order issued pursuant to specified Civil Code non-discrimination provisions and authorizes the court to order a person to perform a minimum of community service, as specified. Makes corresponding cross-reference changes to the Civil Code to reflect the relocation of the penalty provision in the Penal Code. Provides that the county prosecuting agency shall have primary responsibility for enforcement of orders issued SB 1234 PageE pursuant to this Civil Code provision and the criminal Civil Rights title. 8. Expands the list of offenses where a court may require the convicted person, as a condition of probation, to complete civil rights-related training, make payments to entities that provide services to victims of hate crimes, or reimburse the victim for counseling costs. 9. Provides in a hate crime case or alleged hate crime case, the court "shall take all actions reasonably required, including granting restraining orders, to safeguard the health, safety, or privacy of the alleged victim, or of a person who is a victim of, or at risk of becoming a victim of, a hate crime." 10.Provides that "whenever an individual who is a victim of or witness to a hate crime, or who otherwise can give evidence in a hate crime investigation, is not charged with or convicted of committing any crime under state law, a peace officer may not detain the individual exclusively for any actual or suspected immigration violation or report or turn the individual over to federal immigration authorities." 11.Provides that the DOC and DYA, subject to available funding, shall cooperate fully and participate actively with specified groups concerning hate crimes and gangs, as well as "strive to provide inmates with safe environments in which they are not pressured to join gangs or hate groups and do not feel a need to join them in self-defense." 12.Amends and renumbers the existing provision of law stating legislative intent that local governments, law enforcement, and school districts establish education and training programs to prevent civil rights violations and hate crimes to also add a victim assistance component. 13.Amends existing law requiring local law enforcement to report information regarding bias-motivated crimes to the AG to require information pursuant to the new hate crime definition. This information may include local department general orders or formal policies on hate SB 1234 PageF crimes. 14.Requires POST to revise courses on law enforcement interaction with developmentally disabled and mentally disabled persons, racial and cultural differences, and hate crimes, as specified. Also requires POST to develop a training course on crimes against homeless persons, as specified. 15.Repeals a statute making legislative findings regarding racial, ethnic and religious crimes that occur in California and stating intent to establish a statewide center to receive information on these crimes, as well as a statute that previously required the AG to report on racial, ethnic, and religious crimes. 16.Relocates and amends the existing statute requiring local law enforcement to provide hate-crime related brochures to direct the State Department of Fair Employment and Housing to work with other specified departments in assisting with this requirement. 17.Includes changes made by AB 1920 (La Malfa), Chapter 115, Statues of 2004. 18.Includes double-jointing language to avoid potential chaptering problems with AB 2428 (Chu). FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: Yes According to the Senate Appropriations Committee: Fiscal Impact (in thousands) Major Provisions 2004-05 2005-06 2006-07 Fund POST training $500 Special* Rule of Court Minor, absorbable costs General Court: victim safety Unknown, potentially SB 1234 PageG significant costs General Local: report to AG** Unknown, potentially significant costs General DOJ requirements $231 $165 $165General Criminal penalties Unknown costs, potentially in excess General of $150 for incarceration * Peace Officers' Training Fund ** State-mandated local program SUPPORT : (Verified 5/24/04) (Unable to re-verify at time of this writing) Equality California (source) Anti-Defamation League California Church Impact California Council for the Blind, San Bernardino California Council for the Blind, Inland Empire California NOW Commission on the Status of Women Community United Against Violence Crime Victims United of California Jewish Community Relations Council Los Angeles Coalition to End Hunger and Homelessness Metropolitan Community Church Los Angeles Mexican American Legal Defense and Educational Fund Muslim Public Affairs Council National Center for Lesbian Rights National Coalition for the Homeless Our Family Coalition Pride at Work, Southern California San Francisco Lesbian, Gay, Bisexual, and Transgender Community Center SoCal Pride at Work Transgender Law Caucus Western Center on Law and Poverty OPPOSITION : (Verified 5/24/04) (Unable to re-verify at time of this writing) SB 1234 PageH Capitol Resource Institute Campaign for California Families ARGUMENTS IN SUPPORT : According to the author's office, while California's hate crime statutes are among the strongest in the nation, there are a number of inconsistencies and ambiguities in California law that create difficulties with enforcement. One of the problems stems from the fact that the various hate crime statutes in California are inconsistent in their basic definition of a hate crime, this inconsistency leads to confusion on the part of state and local agencies. The law is also unclear about whether hate crime protections extend to victims who are targeted because of their association with a particular group. California law also does not have the same range of penalties available for hate crimes as it does for anti-religious and anti-reproductive crimes under the Freedom of Access to Clinics and Church Entrances Act. Also, there are no formal sentencing guidelines regarding hate crimes. Although general orders or formal policies on hate crimes increases an agency's propensity to report hate crime by approximately 25 percent, only 49 percent of California law enforcement and sheriff agencies had formal policies relating to hate crime in place. Neither the law nor police officer training has kept up-to-date in terms of responding to the most recent and likely future waves of anti-Arab and anti-Islamic hate crimes. Additionally, there are special problems associated with identifying and responding to certain types of hate crime that merit additional training to assist law enforcement officers in fully implementing California's hate crime statutes. Furthermore the specter of being turned over to Federal immigration authorities prevents out of status immigrants who are victims or witnesses to hate crime from fully cooperating with law enforcement. Much concern has been raised about the high rate of violent crime against the homeless and in particular mentally ill homeless persons. Many of these crimes might be based upon disability bias. While there is no consensus yet that housing status should be added as a characteristic protected by California's hate crime statutes it is clear that there should be further study of the issue and training for police officers on addressing crimes against the homeless. ARGUMENTS IN OPPOSITION : Opponents argue that, "ALL SB 1234 PageI intentionally perpetrated crimes involve an element of 'hate.' "The legislature should not hand-pick a few victims and elevate them above all other. For this reason, we strongly oppose SB 1234. "SB 1234 would also require a course of instruction for police officers on the possible future anti-Arab/Middle Eastern and anti-Islamic hate crime waves. Although Arab people in general should definitely not be lumped together with 9-11 terrorists, promoting this sort of language in SB 1234 is simply another tactic to patronize a certain class of people and reject and mitigation efforts to protect our borders and our national security." ASSEMBLY FLOOR : AYES: Berg, Bermudez, Calderon, Canciamilla, Chan, Chavez, Chu, Cohn, Corbett, Correa, Diaz, Dutra, Dymally, Firebaugh, Frommer, Garcia, Goldberg, Hancock, Jerome Horton, Shirley Horton, Jackson, Kehoe, Laird, Leno, Levine, Lieber, Liu, Longville, Lowenthal, Maldonado, Matthews, Montanez, Mullin, Nakano, Nation, Negrete McLeod, Oropeza, Parra, Pavley, Reyes, Richman, Ridley-Thomas, Salinas, Simitian, Steinberg, Vargas, Wesson, Wiggins, Wolk, Yee, Nunez NOES: Aghazarian, Bates, Benoit, Bogh, Campbell, Cogdill, Cox, Daucher, Dutton, Harman, Haynes, Houston, Keene, La Malfa, La Suer, Leslie, McCarthy, Nakanishi, Pacheco, Plescia, Runner, Strickland, Wyland NO VOTE RECORDED: Koretz, Maddox, Maze, Mountjoy, Samuelian, Spitzer RJG:mel 8/24/04 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END ****