BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1706


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          Date of Hearing:  March 29, 2016


                       ASSEMBLY COMMITTEE ON VETERANS AFFAIRS


                                 Jacqui Irwin, Chair


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


          SUBJECT:  Military fraud


          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,  








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               or the Naval Militia by wearing the uniform or military  
               decoration authorized for use by the members or veterans of  
               those forces.

          EXISTING FEDERAL LAW: 

          Title 18 United States Code Section 704 States that, "Whoever,  
          with intent to obtain money, property, or other tangible  
          benefit, fraudulently holds oneself out to be a recipient of a  
          decoration or medal described in subsection ? shall be fined  
          under this title, imprisoned not more than one year, or both."

          EXISTING STATE LAW: 

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









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          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:   
          
          Author's Statement:  According to the author, "It is important  
          to create conformity between state and federal law to ensure  
          elected officials are held accountable to be honest about their  
          service or lack thereof."

          This bill makes changes to the California Stolen Valor Act to  
          reflect the United States Supreme Court's ruling on the 2005  
          federal Stolen Valor Act. 

          The current, 2013 federal act prohibits fraudulently wearing  
          medals or other decorations with the intent to obtain money,  
          property, or other tangible benefit. The underlying policy is  
          that we value military service and sacrifice, often shown by  
          military medals and decorations, extremely highly as a Nation.   
          While we also value freedom of speech highly as a country,  
          indeed as a fundamental principle of the Nation; with the  
          federal Stolen Valor Act we choose to restrict and criminalize  
          speech that uses military medals and decorations as currency,  
          influence or leverage to obtain a tangible benefit.  

          Existing California law and policy are grounded in the same  








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          general idea that it should be a crime to misrepresent military  
          service for the purpose of obtaining a benefit. California law,  
          however, already calls out more instances of prohibited speech  
          than the federal code and this bill makes additions to the  
          existing list of prohibited conduct.  

          The additional acts are set forth below; each section either  
          arguably describes a situation in which a tangible benefit is  
          inherent or the section includes language (omitted below) which  
          is intended to explicitly add a requirement that the act be done  
          to obtain money, property, or other tangible benefit in  
          conformity with United States Supreme Court rulings.   
          Paraphrasing, the prohibited acts in California should this bill  
          become law are:

             a)   Misrepresenting oneself as a member or veteran of the  
               Armed Forces by wearing a uniform or military decoration.
             b)   Forging documentation reflecting the award of any  
               military decoration a person has not received. 
             c)   Misrepresenting oneself as a member or veteran by  
               wearing a uniform or military decoration.
             d)   Using falsified military identification.
             e)   Promoting a business, charity, or endeavor by  
               impersonating a member or veteran of the Armed Forces by  
               wearing a uniform or military decoration.

          This bill was previously heard by the Assembly Committee on  
          Public Safety.  It is important to note the constitutional  
          context and litigation which motivated most of the changes this  
          bill would make in California law.  According to the Committee  
          on Public Safety:    

               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  








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               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.
               
               ?  The First Amendment of the United States  
               Constitution protects the people's right to free  
               speech from Congressional action.  (U.S. Const., 1st  
               Amend.)  ?  Not all speech is protected, but  
               categories of unprotected speech are strictly limited.  
                ?  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 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."

               [F]our Justices- held ? that the government's interest  
               is compelling, but that other means exist to achieve  
               their ends without restricting protected speech? the  








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               Court held the statutory provision unconstitutional.   
               (Alvarez, supra, at pp. 132 S.Ct. at pp.  2550-2551.)   


               ?[T]wo Justices? [concurred and] 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 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.  ?  This bill's language largely mirrors  
               the language of the federal Act.  

          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.

             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:   








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          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:John Spangler / V.A. / (916) 319-3550