BILL ANALYSIS Ó
AB 246
Page 1
Date of Hearing: March 24, 2015
Counsel: Sandra Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
246 (Roger Hernández) - As Amended March 19, 2015
SUMMARY: Makes the assassination, rape, and kidnap, as well as
an attempt to commit these crimes, a hate crime when the crime
is committed against a peace officer or an immediate family
member and the crime was knowingly committed because of that
status. Specifically, this bill:
1)States that a hate crime includes the assassination, rape, or
kidnap, or attempted assassination, rape or kidnap of a peace
officer, when the offense was knowingly committed because of
the victim's status as a peace officer, or of an immediate
family member of a peace officer, when the offense was
knowingly committed because of the victim's status as an
immediate family member of a peace officer.
2)Defines "assassination" as "murder, as defined in [Penal Code]
Section 187."
3)Defines "immediate family member" as "a spouse or domestic
partner, parent, or child of a peace officer."
4)Defines "peace officer" as "any person designated as a peace
officer pursuant to Chapter 4.5 (commencing with Section 830)
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of Title 3 of Part 2."
EXISTING LAW:
1)Defines "hate crime" as any criminal act committed, in whole
or in part, because of one or more of the following actual or
perceived characteristics of the victim:
a) Disability.
b) Gender.
c) Nationality.
d) Race or ethnicity.
e) Religion.
f) Sexual orientation.
g) Association with a person or group with one or more of
these actual or perceived characteristics. (Pen. Code, §
422.55, subd. (a).)
2)Provides that a hate crime includes, but is not limited to, a
violation of interference with the exercise of civil rights
because of actual or perceived characteristics of the victim.
(Pen. Code, § 422.55, subd. (b).)
3)Provides that a person who interferes with the exercise of
another's civil rights because of the actual or perceived
characteristics of the victim, or of defacing the property of
such a victim with the purpose intimidation or interference of
the exercise of civil rights, is guilty of a misdemeanor
punishable with imprisonment in a county jail not to exceed
one year, or by a fine not to exceed $5,000, or by both the
above imprisonment and fine, and requires the defendant to
perform community service, not to exceed 400 hours. (Pen.
Code, § 422.6.)
4)Provides that a person who commits a felony motived by bias,
or attempts to commit a bias-motivated felony, except as
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specified, shall receive an additional term of one, two, or
three years in the state prison, at the court's discretion.
(Pen. Code, § 422.75, subd. (a).)
5)Provides that a person who commits a felony motived by bias,
or attempts to commit a bias-motivated felony, except as
specified, and who voluntarily acted in concert with another
person in the commission of the crime shall receive an
additional term of two, three, or four years in the state
prison, at the court's discretion. (Pen. Code, § 422.75,
subd. (b).)
6)Provides that a person who commits first-degree murder that is
a hate crime shall be punished by imprisonment in the state
prison for life without the possibility of parole. (Pen.
Code, § 190.03, subd. (a).)
7)Provides that the penalty for a defendant who is found guilty
of murder in the first degree is death or imprisonment in the
state prison for life without the possibility of parole if 1
or more than 20 special circumstances is found to be true,
including:
a) The victim was a peace officer who, while engaged in the
course of the performance of his or her duties, was
intentionally killed, and the defendant knew, or reasonably
should have known, that the victim was a peace officer
engaged in the performance of his or her duties; or the
victim was a peace officer, as defined in the
above-enumerated sections, or a former peace officer under
any of those sections, and was intentionally killed in
retaliation for the performance of his or her official
duties;
b) The victim was a federal law enforcement officer or
agent who, while engaged in the course of the performance
of his or her duties, was intentionally killed, and the
defendant knew, or reasonably should have known, that the
victim was a federal law enforcement officer or agent
engaged in the performance of his or her duties; or the
victim was a federal law enforcement officer or agent, and
was intentionally killed in retaliation for the performance
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of his or her official duties;
c) The murder was committed for the purpose of avoiding or
preventing a lawful arrest, or perfecting or attempting to
perfect, an escape from lawful custody;
d) The defendant intentionally killed the victim by means
of lying in wait; and
e) The victim was intentionally killed because of his or
her race, color, religion, nationality, or country of
origin. (Pen. Code, § 190.2)
8)Provides that the penalty for the attempted murder of a peace
officer engaged in the performance of his or her duties, the
defendant shall be punished by imprisonment in the state
prison for life with the possibility of parole. (Pen. Code, §
664, subd. (e).)
9)Provides that the penalty for kidnapping is three, five, or
eight years in state prison. However, if a person kidnaps an
individual to commit a robbery, rape, or other specified sex
offenses, the punishment is life in prison with the
possibility of parole. (Pen. Code, §§ 208, subd. (a) and
209, subd. (b)(1).
10)Provides that the penalty for rape is three, six or eight
years in state prison. (Pen. Code, § 264, subd. (a).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "Police officers
across our state put their lives at risk daily when they
proudly put on their uniform. No one should be targeted for
wearing a badge. AB 246 will send a loud and clear message:
we value our law enforcement officers as those who stand
between our families and those who wish to harm them."
2)Hate Crime Laws: Hate crimes, more correctly referred to in
some jurisdictions as "bias crimes," are generally defined as
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crimes that are "committed not out of animosity toward the
victim as an individual, but out of hostility toward the group
to which the victim belongs." (Pendo, Recognizing Violence
Against Women: Gender and the Hate Crimes Statistics Act
(1994) 17 Harv. Women's L.J. 157, 159.) Looking at a more
specific definition, a hate crime is defined as "a crime in
which the defendant intentionally selects a victim because of
the actual or perceived race, color, religion, national
origin, ethnicity, gender, disability, or sexual orientation
of any person." (Violent Crime Control and Law Enforcement
Act of 1994, Pub. L. 103-322, 108 Stat. 1796 Section 280003
(1994) emphasis added (codified in part at 28 U.S.C. Section
994 (1994).)
Hate crime perpetrators target their victims based on
discrimination against immutable characteristics such as age,
color, disability, gender, gender identity, national origin,
race, sex, and sexual orientation. Immutability can be
characterized in one of two ways. Some characteristics, such
as age, disability, and race, cannot be altered by an
individual's voluntary act. However, other characteristics,
such as religion and gender, can only be altered with
substantial cost or difficulty to the individual. Although
not literally immutable, scholars contend that "the power of a
constructed category can be so overwhelming, and its terms,
assumptions, and normative social requirements so deeply
ingrained into the members of society, that it is experienced
at the individual level as immutable." [Marcosson,
Constructive Immutability (2001) 3 U. Pa. J. Const. L. 646,
650.] This implies that some characteristics that are
entirely possible for individuals to change, such as religion,
have such a powerful impact on the construction of individual
identity that they effectively operate as if they were
unchangeable.
This bill does not add "peace-officer status" to the list of
actual or perceived characteristics of a victim for
determining whether a criminal act qualifies as a hate crime.
Rather, it makes the assassination, rape, and kidnap, or the
attempted assassination, rape, and kidnap of a peace officer
or his or her immediate family member, a hate crime if the
offense was committed because the victim was a peace officer
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or an immediate family member of a peace officer. While the
hate crime statute applies to any crime motivated by bias
against a protected class, this bill limits application to the
six aforementioned crimes.
A survey of the California Department of Justice's annual
reports regarding hate crimes committed in California shows
that, fortunately, murder, attempted murder, rape and
kidnapping appear to occur infrequently as a bias-motivated
crime. From 2003-2013, there were 14 murders and 11 forcible
rapes committed as hate crimes. Kidnappings committed as hate
crimes were either not listed, or none occurred. Attempted
murders were also not listed (although arguably some might
have been classified as aggravated assaults which can involve
use of a weapon). Most of the violent hate crimes committed
are aggravated assaults, simple assaults, and intimidation.
And property crimes generally make up roughly 35-40% of hate
crimes. (See Hate Crime in California publications found at:
http://oag.ca.gov/cjsc/pubs#hate ) This bill would not capture
those crimes.
3)Necessity for this Bill: The murder of a peace officer is
already punishable by either the death penalty or life in
prison without the possibility of parole. Two of the
aggravating factors for capital punishment include that the
victim was a peace officers in the course of his or her
duties, and the defendant killed the victim while lying in
wait.
The Supreme Court has held that the trial court has the
authority to impose an enhancement when the underlying offense
is punishable by death or by life imprisonment without the
possibility of parole. (People v. Shabazz (2006) 38 Cal.4th
55 69, [trial court had authority to impose the
25-year-to-life enhancement firearm-use enhancement, even
though it imposed as the base term a longer term of
imprisonment, life without the possibility of parole].) The
court noted that a defendant sentenced to life without the
possibility of parole could have his or her sentence commuted
to life imprisonment with the possibility of parole or an even
lesser sentence. (Id. at p. 70, fn. 9, citing Cal. Const.,
art. V, § 8; and People v. Ward (2005) 36 Cal.4th 186, 220.)
Thus, it is technically possible for a defendant who
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"assassinates" a police officer to receive a three-year hate
crime enhancement on a sentence of death or life without
parole. Likewise, a defendant who attempts to "assassinate" a
police officer can receive a three-year enhancement on a
sentence of life without the possibility of parole. However,
practically speaking, it is extremely unlikely that a
defendant convicted of killing a police officer is going to
have his or her sentence commuted to something less than life
without the possibility of parole.
Admittedly, there are no aggravated penalties for the rape,
attempted rape, kidnap, or attempted kidnap of a law
enforcement officer. Yet, it has not been demonstrated that
that peace officers are targeted for these crimes because of
their employment status. The background material provided by
the author point to the 2013 case of Christopher Dorner who
targeted and shot law enforcement officers and their families
after he was fired from the Los Angeles Police Department as
an example of why additional penalties are necessary when the
enumerated crimes are committed against peace officers. Media
outlets reported that Dorner stalked the family members of
several peace officers. However, it was not alleged that he
raped or kidnapped any of his victims. (see e.g.,
< http://www.nbcnews.com/news/investigations/dorner-stalked-lapd
-chief-becks-dad-dads-dog-n247751 >.)
4)Trends in Killing of Police: Recently there have been several
intentional shootings committed against peace officers, some
of which, tragically, have resulted in the deaths of the
officers.
Nevertheless, a recent study conducted by Franklin Zimring,
Professor of Law at the University of California at Berkeley,
found that in the past four decades, there has been a downward
trend in the number of killings both of, and by, police.
Although the number of people employed as peace officers has
increased in the last generation, the violent killing of
officers has deceased by more than half. Since 1976, the
number of on-duty police officers killed in the United States
has dropped somewhere between 69 and 75 percent. This is
partly attributable to the use of the Kevlar vest. "Urban
policing is a substantially less dangerous job in 2015 than in
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1975." (Zimring and Arsiniega, Trends in Killings of and by
Police: A Preliminary Analysis, 2015, Ohio State Journal of
Criminal Law, Vol. 13.)
5)Argument in Support: According to the Los Angeles Deputy
Sheriffs, the sponsor of this bill, "The recent attacks on
police officers -occasioned only due to their status as police
officers- provides eloquent testimony to the need for this
bill. The gravamen of a hate crime is that the crime is
committed without any transactional motive; instead, the crime
is committed because of the status of the prospective victim.
The recent unprovoked and non-transactional shootings of
police officers are an example of exactly that activity."
6)Argument in Opposition: The Anti-Defamation League writes,
"At the outset, we want to acknowledge the importance of
efforts to protect our peace officers from violence. In the
wake of recent events across the country, tension and
aggression against law enforcement officers has been
heightened. Like Assemblymember Hernández, we believe
protection of peace officers is critically important. While
we understand AB 246 is intended to address this problem,
adding peace officers to the groups protected by hate crime
laws is not the approach we favor.
"Instead, we recommend providing enhanced penalties for
intentional crimes against peace officers through amending
alternate penal code sections. As you probably know,
California already has several statutes that enhance penalties
for intentional crimes against peace officers. These include
additional fines and imprisonment for assaulting a peace
officer, additional prison time for assault with a deadly
weapon against a peace officer, and the death sentence or life
without parole for murder in the first degree of a peace
officer.
"Existing California hate crime law provides enhancements for 'a
criminal act committed, in whole or in part, because of one or
more of the following actual or perceived characteristics of
the victim: disability, gender, nationality, race or
ethnicity, religion, and sexual orientation.' Even though the
law is commonly referred to as hate crime law, a more precise
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term would probably be 'bias crimes.' For a number of
reasons, we feel that adding peace officers to these hate
crimes law categories would not be appropriate because they
are not analogous to the existing groups protected by this
law.
"As you know, each of the existing bias crime law categories
represents personal characteristics inherent to the victim
that cannot or should not be changed. Moreover, historic
discrimination against members of each category has
demonstrated the need for inclusion in housing, workplace, and
public accommodation anti-discrimination statutes -- civil
parallels to criminal bias crime laws. In the direct context
of bias crime laws, inclusion of these categories has been
demonstrated to be necessary for instances in which local law
enforcement authorities were either unwilling or unable to
prosecute crimes against these groups. Bitter experience has
taught us that such crimes have a special emotional and
psychological impact, expanding beyond the individual victim
to intimidate others in the victim's community, making them
feel isolated, vulnerable, and unprotected. The inclusion of
each of these groups in hate crime legislation helps to raise
awareness of this terrible impact.
"On the other hand, an individual's status as a peace officer is
not a personal characteristic and, fortunately, peace officers
have not historically required specific protection against
discrimination. Furthermore, no one doubts the impact of
these odious crimes against police in the community. Crimes
committed against peace officers are already treated very
seriously and rightfully garner a lot of public attention.
Lastly, we are concerned that the specific language of the
amendment referring to the 'assassination or attempted
assassination' of a peace officer is more narrow than the
existing protections which cover 'criminal acts' generally and
may create needless confusion and raise doubts about existing
protections."
7)Related Legislation:
a) AB 242 (Salas) adds "peace-officer status" to the list
of actual or perceived characteristics of a victim for
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determining whether a criminal act qualifies as a hate
crime. AB 242 was pulled by the author.
b) AB 860 (Daly) adds "political affiliation" to the list
of actual or perceived characteristics necessary to
determine whether a criminal act qualifies as a hate crime.
AB 860 is pending referral by the Rules Committee.
8)Prior Legislation:
a) AB 1206 (Miller), of the 2009-2010 Legislative Session,
would have added political affiliation to the list of
actual or perceived characteristics qualifying for hate
crime status. AB 1206 was never heard in committee.
b) SB 122 (Steinberg), of the 2007-2008 Legislative
Session, would have added homelessness to the list of
actual or perceived characteristics qualifying for hate
crime status. SB 122 was held in the Senate Public Safety
committee without recommendation.
REGISTERED SUPPORT / OPPOSITION:
Support
Los Angeles Deputy Sheriffs (Sponsor)
California College and University Police Chiefs Association
California Fraternal Order of Police
California Narcotic Officers Association
Long Beach Police Officers Association
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League
Riverside Sheriffs Association
Sacramento County Deputy Sheriffs' Association
Santa Ana Police Officers Association
Opposition
American Civil Liberties Union of California
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Anti-Defamation League - California Offices
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children
Analysis Prepared
by: Sandy Uribe / PUB. S. / (916) 319-3744