BILL ANALYSIS                                                                                                                                                                                                    




                                                                       


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                              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






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           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  







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          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
                                                                  
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             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  







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            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  







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          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

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