BILL ANALYSIS Ó
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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