BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1706


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          Date of Hearing:  March 15, 2016
          Consultant:          Matt Dean


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                       Reginald Byron Jones-Sawyer, Sr., Chair





          AB  
                        1706 (Chávez) - As Amended  March 8, 2016




          SUMMARY:  Adds to the list of misdemeanors punishable under the  
          California Stolen Valor Act.  Specifically, this bill: 

          1)Updates the California Stolen Valor Act to require a  
            conviction under the federal Stolen Valor Act of 2013 rather  
            than the 2005 version, which the U.S. Supreme Court ruled  
            unconstitutional.

          2)Clarifies the intent requirements for misdemeanors punishable  
            under the California Stolen Valor Act.

          3)Defines "district" as "any agency of the state formed pursuant  
            to general law or special act, for the local performance of  
            governmental or proprietary functions within limited  
            boundaries for purposes of the California Stolen Valor Act."

          4)Defines "tangible benefit" as "financial remuneration, an  
            effect on the outcome of a criminal or civil court proceeding,  
            or any benefit relating to service in the military that is  
            provided by a federal, state, or local governmental entity for  
            purposes of the California Stolen Valor Act."

          5)Adds the California National Guard, the State Military  








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            Reserve, the Naval Militia, the national guard of any other  
            state, or any other reserve component of the Armed Forces of  
            the United States to the list of military service branches  
            covered by the California Stolen Valor Act.

          6)Adds to the list of misdemeanors punishable under the  
            California Stolen Valor Act as any person who:

             a)   Forges documentation reflecting the awarding of any  
               military decoration that he or she has not received for the  
               purposes of obtaining money, property, or other tangible  
               benefit;

             b)   Wears a uniform or military decoration authorized for  
               use by the members or veterans of those forces for the  
               purposes of obtaining money, property, or receiving a  
               tangible benefit;

             c)   Knowingly utilizes falsified military identification for  
               the purposes of obtaining money, property, or receiving a  
               tangible benefit'

             d)   Knowingly, with the intent to impersonate, for the  
               purposes of promoting a business, charity, or endeavor,  
               misrepresents himself or herself as a member or veteran of  
               the Armed Forces of the United States, the California  
               National Guard, the State Military Reserve, or the Naval  
               Militia by wearing the uniform or military decoration  
               authorized for use by the members or veterans of those  
               forces; and

             e)   Knowingly, with the intent to gain an advantage for  
               employment purposes, misrepresents himself or herself as a  
               member or veteran of the Armed Forces of the United States,  
               the California National Guard, the State Military Reserve,  
               or the Naval Militia by wearing the uniform or military  
               decoration authorized for use by the members or veterans of  
               those forces.

          EXISTING LAW: 

          1)States that it is a misdemeanor for any person to falsely  








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            represent himself or herself as a veteran when soliciting aid  
            or selling property.  (Pen. Code, § 532b, subd. (a).)

          2)States that it is a misdemeanor for any person to falsely  
            represent himself or herself as a veteran in an attempt to  
            defraud.   (Pen. Code, § 532b, subd. (b).)

          3)States that it is a misdemeanor for any person to falsely  
            represent himself or herself as a recipient of any "military  
            decoration" in an attempt to defraud.  If the individual is a  
            veteran of any U.S. war, the individual is guilty of either an  
            infraction or a misdemeanor.  (Pen. Code, § 532b, subd. (c)(1)  
            & (2).)

          4)States that the California Stolen Valor Act does not apply to  
            face-to-face solicitations involving less than ten dollars.   
            (Pen. Code, § 532b, subd. (d).)

          5)Defines "military decoration" for the purpose of this  
            subdivision as" any decoration or medal from the Armed Forces  
            of the United States, the California National Guard, the State  
            Military Reserve, or the Naval Militia, or any colorable  
            imitation of that item."  (Pen. Code, § 532b, subd. (c)(3).)

          6)States that any elected officer of the state or a city,  
            county, city and county or district in this state forfeits his  
            or her office upon the conviction of a crime under the  
            California Stolen Valor Act.  (Gov. Code, § 3003, Pen. Code, §  
            532b.)

          7)States that any elected officer of the state or a city,  
            county, city and county or district in this state forfeits his  
            or her office upon the conviction of a crime under the federal  
            Stolen Valor Act of 2005 if the crime involves a false claim  
            to a "military decoration" or medal described in that Act.   
            (Gov. Code, § 3003, 18 U.S.C. § 704.)
          
          FISCAL EFFECT:   Unknown

          COMMENTS:   

          1)Author's Statement:  According to the author, "It is important  








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            to create conformity between state and federal law to ensure  
            elected officials are held accountable to be honest about  
            their service or lack thereof."

          2)Background:  Currently, California requires that an elected  
            officer forfeit their office upon conviction of a crime  
            pursuant to either the federal Stolen Valor Act of 2005 or the  
            California Stolen Valor Act.  The federal Stolen Valor Act was  
            updated in 2013 after the Supreme Court ruled it was  
            unconstitutional.  (See United States v. Alvarez (2012) 132  
            S.Ct. 2537, 2556 [183 L.Ed.2d 574].) This bill updates the  
            California Stolen Valor Act by requiring a conviction pursuant  
            to the federal Stolen Valor Act of 2013.

            This bill also adds new misdemeanors to the California Stolen  
            Valor Act and changes the intent requirement for a conviction  
            under the Act to also mirror federal law.
            
          3)First Amendment:  The First Amendment of the United States  
            Constitution protects the people's right to free speech from  
            Congressional action.  (U.S. Const., 1st Amend.)  State action  
            restricting free speech is likewise prohibited by the Due  
            Process Clause of the Fourteenth Amendment.  (First Nat. Bank  
            of Boston v. Bellotti (1978) 435 U.S. 765, 779.)  Not all  
            speech is protected, but categories of unprotected speech are  
            strictly limited.  For example, child pornography, obscenity  
            and criminal threats are considered unprotected speech.  (U.S.  
            v. Stevens (2010) 559 U.S. 460, 468-469.)  If speech does not  
            fall into one of these strictly defined categories, then that  
            speech enjoys at least some level of First Amendment  
            protection.  

            The threshold question in determining what level of protection  
            to give speech is whether the regulation is content-based or  
            content-neutral.  This reflects the understanding of the U.S.  
            Supreme Court that not all speech serves the purposes for  
            which the First Amendment was adopted.  Specifically, the  
            Court has said the highest rung of First Amendment protection  
            is reserved for discussion of public issues and debate over  
            the qualifications of candidates.  (McIntyre v. Ohio Elections  
            Comm'n (1995) 514 U.S. 334, 346-47.)  For this reason,  
            restrictions of speech based on the content of that speech  








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            receive the strictest level of scrutiny by the courts.  Such a  
            content-based speech restriction only survives strict scrutiny  
            if the government shows a compelling interest in regulating  
            such speech, and the regulative means employed must be the  
            least restrictive means available to achieve the government's  
            ends.  For content-neutral restrictions of speech, the less  
            restrictive intermediate scrutiny test applies.  (Ward v. Rock  
            Against Racism (1989) 491 U.S. 781, 798-800.)  Under  
            intermediate scrutiny, the government's interest need only be  
            legitimate, and their means chosen narrowly tailored so as to  
            be reasonably necessary to achieve the government's ends.  In  
            contrast to strict scrutiny, the means chosen need not be the  
            least restrictive means.  (Id. at 800.)

            The Supreme Court has ruled on the speech implicated in this  
            bill when it examined the federal Stolen Valor Act in the case  
            of United States v. Alvarez, supra, 132 S.Ct. 2537.  The  
            Supreme Court's ruling on the federal Stolen Valor Act centers  
            on the language used in the statute.  The relevant provision  
            of the federal Stolen Valor Act of 2005 reads:

            "Whoever falsely represents himself or herself, verbally or in  
            writing, to have been awarded any decoration or medal  
            authorized by Congress for the Armed Forces of the United  
            States, any of the service medals or badges awarded to the  
            members of such forces, the ribbon, button, or rosette of any  
            such badge, decoration, or medal, or any colorable imitation  
            of such item shall be fined under this title, imprisoned not  
            more than six months, or both."

            The plurality -that is, four Justices- held this provision  
            content-based and therefore subject to strict scrutiny.   
            (Alvarez, supra, 132 S.Ct. at p. 2543.)  Critical to their  
            holding is that the statute prohibited false claims without  
            any requirement of cognizable harm as a result of the false  
            claims.  The plurality stated that the government's interest  
            is compelling, but that other means exist to achieve their  
            ends without restricting protected speech.  In particular, the  
            Court held the combination of a database for medal recipients  
            coupled with public condemnation would serve just as well to  
            deter false claims regarding military service.  (Alvarez,  
            supra, at pp. 132 S.Ct. at pp.  2550-2551.)  Because  








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            alternative means exist to address the government's ends, the  
            Court held the statutory provision unconstitutional.  (Ibid.)

            The concurring Justices -here, two Justices- applied  
            intermediate scrutiny because they found the false speech to  
            be of limited value.  (Alvarez, supra, 132 S.Ct. at p. 2552.)   
            The false claims at issue here were easily verifiable, and  
            therefore unlikely to aid in the debate of public issues which  
            is the heart of the First Amendment's speech protections.   
            However, the Court still held the statutory provision  
            unconstitutional because of its potential to chill protected  
            speech.  Critical to the concurring Justices was the lack of  
            an intent to cause some legally cognizable harm, such as  
            obtaining unearned benefits from the VA or unearned employment  
            preferences.  (Id. at pp. 2555-2556.)  

            The dissent would have upheld the statute as constitutional.   
            (Alvarez, supra, 132 S.Ct. at p. 2557.)

            The language of the federal Stolen Valor Act has since been  
            amended to reflect the Court's interpretation.  An intent to  
            cause some legally cognizable harm has been added.  As of now,  
            there has not been a challenge to the federal Act.  Moreover,  
            the Court specifically addressed the receipt of unearned  
            benefits and the impacting of judicial proceedings in its  
            holding in Alvarez and stated that such restrictions are  
            likely constitutional.  This bill's language largely mirrors  
            the language of the federal Act.  

          4)Argument in Support:  According to the American G.I. Forum of  
            California and the AMVETS- Department of California, the  
            co-sponsors of this bill, "We do not believe elected officials  
            should benefit by lying about their military service and that  
            they should be removed from office."

          5)Prior Legislation:  

             a)   AB 167 (Cook), Chapter 69, Statutes of 2011, requires  
               that elected officers forfeit their office upon conviction  
               of any of the crimes specified in the California Stolen  
               Valor Act in addition to the federal Stolen Valor Act.









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             b)   AB 265 (Cook), Chapter 93, Statutes of 2009, expands the  
               provision requiring local elected officers to forfeit  
               office upon conviction of a crime pursuant to the federal  
               Stolen Valor Act to include elected state officers.

             c)   SB 1482 (Correa), Chapter 118, Statutes of 2008,  
               provides that an elected officer of a city, county, city  
               and county, or district in this state forfeits his or her  
               office upon the conviction of a crime pursuant to the  
               federal Stolen Valor Act, that involves a false claim of  
               receipt of a military decoration or medal described in that  
               Act.

          REGISTERED SUPPORT / OPPOSITION:   

          Support

          American G.I. Forum of California (Sponsor)
          AMVETS-Department of California (Sponsor)
          American Legion - Department of California 
          California Association of County Veterans Service Officers
          California State Commanders Veterans Council
          Military Officers Association of America, California Council of  
          Chapters
          VFW-Department of California
          Vietnam Veterans of America-California Council
          
          Opposition 

          None
          
          Analysis Prepared  
          by:              Matt Dean / PUB. S. / (916) 319-3744

















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