BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 1080       Hearing Date:    April 19, 2016    
          
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          |Author:    |Morrell                                              |
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          |Version:   |February 17, 2016                                    |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|JM                                                   |
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                                 Subject:  Memorials



          HISTORY

          Source:   American G.I. Forum

          Prior Legislation:None 

          Support:  American Legion - Department of California; AMVETS -  
                    Department of California; California Association of  
                    County Veterans Service Officers; California State  
                    Commanders Veterans Council; Los Angeles County  
                    Professional Peace Officers Association; Military  
                    Officers Association of America, California Council of  
                    Chapters; VFW - Department of California; Vietnam  
                    Veterans of America - California State Council

          Opposition:American Civil Liberties Union

           


          PURPOSE

          The purpose of this bill is to define an alternate  
          felony-misdemeanor committed where a person does any of the  
          following: 1) receives, retains or disposes of a stolen grave  







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          marker or memorial structure of a military veteran, peace  
          officer, firefighter or first responder; 2)  damages, defaces  
          destroys, mutilates or removes an American flag, veteran's  
          commemorative flag holder, veteran's grave marker or metal  
          plaque, or commemorative flag holder representing service in the  
          police and fire department, from the grave of a veteran, peace  
          officer, firefighter, or other first responder; or 3) damages,  
          defaces destroys, mutilates or removes any object or structure  
          memorializing a veteran, peace officer, firefighter or other  
          first responder. 

          Existing law includes numerous vandalism and vandalism-related  
          crimes committed where a person defaces with graffiti, damages  
          or destroys and personal or real property.  (Pen. Code  594 et  
          seq.)  Generally, vandalism that causes less than $400 in damage  
          is a misdemeanor, punishable by a jail term of up to one year,  
          $1,000, or both.  Vandalism that causes at least $400 in damage  
          is an alternate felony-misdemeanor, punishable by a misdemeanor  
          jail term of up to one year, or by an executed sentence of 16  
          months, two years or three years pursuant to Penal Code Section  
          1170, subdivision (h).  The fine for either a misdemeanor or  
          felony conviction 


          under the wobbler provision is a fine of up to $10,000, except  
          that where the damage exceeds $10,000, the maximum fine is  
          $50,000.    (Pen. Code  594 (a)-(b)(1)-(2).)  


          Existing law provides that where the vandalism damage is less  
          than $400, but the defendant has a prior conviction for  
          vandalism or a specified vandalism-related offense, the crime is  
          a misdemeanor, with a maximum jail term of one year, a fine of  
          up to $5,000, or both.  (Pen. Code  594 (a)-(b)(1).)  


          Existing law provides that any person who maliciously destroys  
          any property in a mortuary or cemetery shall be punished by  
          imprisonment in the state prison for 16 months, 2 or 3 years, or  
                     by imprisonment in the county jail for up to one  
          year.  (Health  and Saf. Code  8101.)


          Existing law provides that it is an alternate  








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          felony-misdemeanor, punishable by a misdemeanor jail term of up  
          to one year, a fine of up to $1,000, or both, or by an executed  
          felony sentence of 16 months, two years or three years pursuant  
          to Penal Code Section 1170, subdivision (h), and a fine of up to  
          $10,000 where a person does any of the following at, or in  
          relation to, a cemetery, mortuary or its operation:


                 Destroys, cuts, mutilates, effaces, injures, tears down,  
               or removes any tomb, monument, memorial, or marker in a  
               cemetery, or any gate, door, fence, wall, post or railing,  
               or any enclosure that protects cemetery or mortuary  
               property.

                 Obliterates any grave, vault, niche, or crypt.

                 Destroys, cuts, breaks or injures any mortuary building  
               or any building, statuary, or ornamentation within the  
               limits of a cemetery.

                 Disturbs, obstructs, detains or interferes with a person  
               carrying or accompanying human remains to a cemetery or  
               funeral establishment, or engaged in a service or  
               interment.  (Pen. Code  594.35.)

          Existing law provides that it is an alternate felony-misdemeanor  
          to knowingly receive stolen property exceeding $950 in value,  
          and a misdemeanor in other circumstances.  A felony conviction  
          for receiving stolen property is punished pursuant to Penal Code  
          Section 1170, subdivision (h).  (Pen. Code  496.)  

          This bill describes an alternate felony-misdemeanor, punishable  
          by imprisonment in a county jail for up to one year, a fine of  
          up to $5,000, or both, or by an executed felony sentence  
          pursuant to Penal Code  1170, subdivision (h), for 16 months,  
          two years or three years and a fine of up to $10,000, that is  
          committed where a person any of does the following:


                 Receives, retains or disposes of a grave marker or  
               memorial structure at the grave of a veteran, peace  
               officers, firefighter or first responder, as specified,  
               that the person knows or should know has been stolen.  The  
               crime does not apply if the person received the marker or  








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               memorial for the purpose of returning the item to a  
               cemetery, law enforcement, the Department of Veterans  
               Affairs, a veterans' service organization, a town or court  
               veteran's agent, or to someone who performs a similar  
               function.


                 Damages, defaces, destroys, mutilates or removes an  
               American flag, veteran's grave marker, metal plaque,  
               veteran's commemorative flag holder or commemorative flag  
               holder representing service in both the police and fire  
               department.


                 Damages, defaces, destroys, mutilates or removes any  
               object or structure memorializing a veteran, peace officer,  
               firefighter or other first responder.


                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past several years this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In December of 2015 the administration reported that as "of  
          December 9, 2015, 112,510 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  








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          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  
          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 2015 Status Report in Response to  
          February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge  
          Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  
          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 Status Report in Response to February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).)  
           
          While significant gains have been made in reducing the prison  
          population, the state must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.


          COMMENT

          1.Need for This Bill










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          According to the author:


               Veteran, peace officer, firefighter, or other first  
               responders risk their lives in order to protect their  
               communities, California and the nation.  Vandalism to  
               their memorials or grave markers impacts the community  
               because of the high regard that they are held in.  An  
               example, is when the Mexican-American Soldier Memorial  
               in Sacramento was vandalized last summer.  The  
               community was devastated because of what the memorial  
               meant to the community.  The statue was commissioned  
               by a group of Mexican-American mothers whose sons died  
               during World War II.  Law enforcement needs to have a  
               way to not only to penalize the vandals but also to  
               track the amount of vandalism to these specific  
               memorials and grave markers.  By creating a separate  
               code section, SB 1080 will allow law enforcement to  
               track any patterns of vandalism against Veteran, peace  
               officer, firefighter, or other first responders'  
               memorials or grave markers, which mean so much to the  
               community.  

          2.  Substantial Overlap with Existing Law


          Existing law includes alternate felony-misdemeanor penalties for  
          vandalism generally and for vandalism and related acts at a  
          cemetery or mortuary facility.  Existing law also includes the  
          crime of receiving stolen property.  This bill substantially  
          overlaps with those crimes, although the existing cemetery  
          vandalism statute is broader in some regards than this bill  
          would be.  It appears that virtually all of the acts covered by  
          this bill could be prosecuted under existing law.


          3.  Malice Element is not Included in the new Vandalism Crimes;  
               and There is No Element 
               of Criminal Intent or Knowledge in any of the New Crimes

          Existing vandalism and cemetery desecration laws include an  
          element that the defendant acted "maliciously" in causing damage  
          or a related harm.  Malice means a "wish to vex, annoy, or  
          injure another person, or an intent to do a wrongful act."   








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          (Pen. Code 7.) The jury instruction on vandalism (CALCRIM 2900)  
          defines malice as follows:  "Someone acts maliciously when he or  
          she intentionally does a wrongful act or when he or she acts  
          with the unlawful intent to annoy or injure someone else."   
          Malice does not require the intent to cause a specific harm or  
          result.  The vandalism and related offenses in this crime do not  
          include a malice element.


          None of the crimes defined by the bill include an element of  
          wrongful intent or guilty knowledge.  A crime is essentially a  
          combination of a wrongful act and a culpable state of mind,  
          generally the intent to do wrong or criminal knowledge  
          "scienter."  People v. McCoy (2001) 24 Cal.4th 1111, 1117. )   
          The only scienter requirement in the new form of receiving  
          stolen veterans' memorials, markers or structures is that the  
          defendant knew or should have known that the item was stolen.  
          There is no element that the receiver of the property would  
          should have known that the property commemorated a veteran,  
          peace officer, firefighter or first responder?  


          The lack of a malice element and the lack of a requirement that  
          the defendant acted with wrongful intent or guilty knowledge  
          would essentially make the vandalism crimes defined by this bill  
          strict liability offenses.  Negligent or accidental damage would  
          be covered by the bill.  The lack of a requirement that a  
          defendant received stolen property related to a veteran's  
          memorial or gravesite adds a measure of strict liability to this  
          new offense.  Strict liability crimes concern matters of  
          widespread harm or danger to public health and welfare, not  
          individual fault and harm.  (People v. Chevron Chemical (1983)  
          143 Cal.App.3d 50, 53-54.)  They carry relatively "light  
          penalties and no moral obloquy or damage to reputation." (People  
          v. Vogel (1956) 46 Cal.2d 798, 801, fn. 2; see Morissette v.  
          United States (1952) 342 U.S. 246, 26.)  Imposing substantial  
          penalties and assigning serious culpability through strict  
          liability principles is disfavored and contrary to prevailing  
          trends in the law.   (In re Jennings (2004) 34 Cal.4th 254,  
          267.)  


          4.  Tracking Vandalism and Receiving Stolen Property Related to  
               Veterans' Memorials 








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               and Gravesites.

          The author's statement indicates that one of the purposes of  
          this bill is to track the extent of vandalism of memorials and  
          related structures or items honoring veterans and public safety  
          personnel.  Law enforcement agencies report crimes by arrest.   
          It is not known if law enforcement would actually arrest  
          defendants under these new crimes, rather than under existing  
          law.  The fact that vandalized or stolen property had any  
          connection to a veteran or public safety officer might not be  
          known until well after arrest.  Further, it is unclear whether  
          convictions data for these offenses will be collected and  
          organized.  It appears that there is no systematic collection of  
          conviction data in California.  


          It is thus unclear whether these new crimes will be accurately  
          reported and tracked.  Limited reporting would undercount the  
          incidence of these offenses, frustrating the author's intent.


          5.  Drafting and other Technical Issues


          Subdivision (b) of the new crime statute defined by this bill -  
          Penal Code Section 594.38 - describes new or separate forms of  
          vandalism of the gravesite of a veteran, peace officer,  
          firefighter and "other first responder."  The provision is  
          unclear and confusing to read.  It is not entirely clear which  
          forms of vandalism apply to the gravesites of the specified  
          decedents.  However, it does appear that the vandalism of a  
          commemorative flag holder at the grave of a peace officer,  
          firefighter or first responder would have to occur at the  
          gravesite of a person who served in both the police and fire  
          departments, not either the police department or the fire  
          department.  This provision specifically refers to a "police"  
          department, so it would apparently exclude someone who served in  
          a sheriff's department/


          This new vandalism crime refers to items at the gravesite of a  
          first responder.  The term "first responder" is not defined,  
          perhaps leading to a constitutional vagueness challenge. Without  









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          6.  Possible Free Speech Claims


          Any law that concerns the destruction of or damage to a flag or  
          military symbol will likely bring to mind cases concerning free  
          speech and flag burning or other activities.  A claim that  
          destruction of damage to a flag, memorial or symbol is protected  
          by the First Amendment when offered as a defense to the crime  
          defined by this bill would almost certainly be unavailing. The  
          United States Supreme Court, in a landmark decision upholding a  
          criminal law prohibiting destruction or damage to a draft card  
          held:


               We cannot accept the view that an apparently limitless  
               variety of conduct can be labeled "speech" whenever  
               the person engaging in the conduct intends thereby to  
               express an idea. However, even on the assumption that  
               the alleged communicative element in O'Brien's conduct  
               is sufficient to bring into play the First Amendment,  
               it does not necessarily follow that the destruction of  
               a registration certificate is constitutionally  
               protected activity. This Court has held that, when  
               "speech" and "nonspeech" elements are combined in the  
               same course of conduct, a sufficiently important  
               governmental interest in regulating the nonspeech  
               element can justify incidental limitations on First  
               Amendment freedoms.  (United State v. O'Brien (1968)  
               391 U.S. 367, 375.)

          The United States Supreme Court has clearly held that burning of  
          an American flag as an act of political protest is expressive  
          conduct protected by the First Amendment.  (United States v.  
          Eichman (1990) 496 U.S. 310.)  Protection for expressive conduct  
          does not extend to a defendant's taking or damaging of a flag or  
          other emblem that is the property of another, regardless of  
          whether the flag was displayed as a symbol of some government  
          action that the defendant was protesting.  In Texas v. Johnson  
          (1989) 491 U.S. 397, a case in which the court reversed a Texas  
          flag burning conviction the court stated:  "There was no  
          evidence that Johnson himself stole the flag he burned? nor did  
          the prosecution or the arguments urged in support of it depend  








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          on the theory that the flag was stolen.  [O]ur analysis does not  
          rely on the way in which the flag was acquired, and nothing in  
          our opinion should be taken to suggest that one is free to steal  
          a flag so long as one later uses it to communicate an idea. We  
          also emphasize that Johnson was prosecuted only for flag  
          desecration -- not for trespass, disorderly conduct, or arson.   
          (Id., at p. 412, fn8.)


            


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