BILL NUMBER: AB 1999	CHAPTERED
	BILL TEXT

	CHAPTER   933
	FILED WITH SECRETARY OF STATE   SEPTEMBER 28, 1998
	APPROVED BY GOVERNOR   SEPTEMBER 28, 1998
	PASSED THE ASSEMBLY   AUGUST 27, 1998
	PASSED THE SENATE   AUGUST 26, 1998
	AMENDED IN SENATE   AUGUST 24, 1998
	AMENDED IN SENATE   AUGUST 24, 1998
	AMENDED IN SENATE   JUNE 30, 1998
	AMENDED IN ASSEMBLY   MAY 22, 1998
	AMENDED IN ASSEMBLY   APRIL 2, 1998

INTRODUCED BY   Assembly Member Kuehl
   (Principal coauthor:  Assembly Member Shelley)

                        FEBRUARY 18, 1998

   An act to amend Sections 186.21, 422.75, 11410, 13023, and 13519.6
of, and to add Section 422.76 to, the Penal Code, relating to
gender.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 1999, Kuehl.  Hate crimes:  gender.
   (1) Existing law punishes as a misdemeanor, a person who uses
force or threat of force to willfully injure, intimidate, interfere
with, oppress, or threaten any person in the free exercise or
enjoyment of a right or privilege because of that person's race,
color, religion, ancestry, national origin, disability, gender, or
sexual orientation.  Similarly, existing law imposes an enhanced
penalty on a person who, while acting in concert with another person,
commits or attempts to commit a felony because of the victim's
membership in one or more of the above specified groups.  An enhanced
penalty is also imposed on any person who commits or attempts to
commit a felony against the property of a public agency or private
institution because the property is identified or associated with a
person who is a member of, or a group that is included within, one of
the groups specified above.  Additionally, existing law imposes
enhanced penalties on a person who commits or attempts to commit a
felony because of the victim's race, color, religion, nationality,
country of origin, ancestry, disability, or sexual orientation, and
on a person for each prior felony conviction committed because of the
victim's membership in any of the groups just specified.
   This bill would amend the last 2 provisions summarized above, and
an intent section of an act relating to the prevention of street
terrorism, by adding gender to the list of groups in which the victim'
s membership entitles the victim to protection under those statutes.
This bill would also define "gender" for purposes of the provisions
summarized in this digest and other specified provisions, to mean the
victim's actual sex or the defendant's perception of the victim's
sex, and includes the defendant's perception of the victim's identity
or appearance, whether or not that identity or appearance is
different from that traditionally associated with the victim's sex at
birth.  By expanding the definition of an enhancement, this bill
would impose a state-mandated local program.  The bill would state
that this definition section does not constitute a change in, but is
declaratory of, existing law.
   (2) Existing law expresses the Legislature's intent that every
person regardless of race, color, creed, religion, or national
origin, has the right to be secure and protected from fear,
intimidation, and physical harm caused by the activities of violent
groups and individuals.
   This bill would add a person's gender to the above list of
characteristics that are protected by law.
   (3) Existing law requires the Attorney General to direct local law
enforcement agencies to report to the Department of Justice,
information regarding physical injury, emotional suffering, or
property damage where there is a reasonable cause to believe that the
crime was motivated, in whole or in part, by the victim's race,
ethnicity, religion, sexual orientation, or physical or mental
disability.
   This bill would add gender to the list of victim characteristics
in the above reporting provision.  By increasing the reporting duties
of local officials, this bill would impose a state-mandated local
program.
   (4) This bill would incorporate additional changes in Section
422.75 of the Penal Code proposed by SB 2168, to be operative if SB
2168 and this bill are both enacted and become effective on or before
January 1, 1999, and this bill is enacted last.
   (5) This bill would incorporate a cross reference to Section
190.03 of the Penal Code that would be added by AB 2324, to be
operative only if both this bill and AB 2324 are enacted and become
operative on or before January 1, 1999, and AB 2324 adds Section
190.03 to the Penal Code.
  (6)  The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state.  Statutory provisions establish procedures for making that
reimbursement, including the creation of a State Mandates Claims Fund
to pay the costs of mandates that do not exceed $1,000,000 statewide
and other procedures for claims whose statewide costs exceed
$1,000,000.
   This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
   With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 186.21 of the Penal Code is amended to read:
   186.21.  The Legislature hereby finds and declares that it is the
right of every person, regardless of race, color, creed, religion,
national origin, gender, age, sexual orientation, or handicap, to be
secure and protected from fear, intimidation, and physical harm
caused by the activities of violent groups and individuals.  It is
not the intent of this chapter to interfere with the exercise of the
constitutionally protected rights of freedom of expression and
association.  The Legislature hereby recognizes the constitutional
right of every citizen to harbor and express beliefs on any lawful
subject whatsoever, to lawfully associate with others who share
similar beliefs, to petition lawfully constituted authority for a
redress of perceived grievances, and to participate in the electoral
process.
   The Legislature, however, further finds that the State of
California is in a state of crisis which has been caused by violent
street gangs whose members threaten, terrorize, and commit a
multitude of crimes against the peaceful citizens of their
neighborhoods.  These activities, both individually and collectively,
present a clear and present danger to public order and safety and
are not constitutionally protected.  The Legislature finds that there
are nearly 600 criminal street gangs operating in California, and
that the number of gang-related murders is increasing.  The
Legislature also finds that in Los Angeles County alone there were
328 gang-related murders in 1986, and that gang homicides in 1987
have increased 80 percent over 1986.  It is the intent of the
Legislature in enacting this chapter to seek the eradication of
criminal activity by street gangs by focusing upon patterns of
criminal gang activity and upon the organized nature of street gangs,
which together, are the chief source of terror created by street
gangs.  The Legislature further finds that an effective means of
punishing and deterring the criminal activities of street gangs is
through forfeiture of the profits, proceeds, and instrumentalities
acquired, accumulated, or used by street gangs.
  SEC. 2.  Section 422.75 of the Penal Code is amended to read:
   422.75.  (a) Except in the case of a person punished under Section
422.7, a person who commits a felony or attempts to commit a felony
because of the victim's race, color, religion, nationality, country
of origin, ancestry, disability, gender, or sexual orientation, or
because he or she perceives that the victim has one or more of those
characteristics, shall receive an additional term of one, two, or
three years in the state prison, at the court's discretion.
   (b) Except in the case of a person punished under Section 422.7 or
subdivision (a) of this section, any person who commits a felony or
attempts to commit a felony against the property of a public agency
or private institution, including a school, educational facility,
library or community center, meeting hall, place of worship, or
offices of an advocacy group, or the grounds adjacent to, owned, or
rented by the public agency or private institution, because the
property of the public agency or private institution is identified or
associated with a person or group of an identifiable race, color,
religion, nationality, country of origin, ancestry, gender,
disability, or sexual orientation, shall receive an additional term
of one, two, or three years in the state prison, at the court's
discretion.
   (c) Except in the case of a person punished under Section 422.7 or
subdivision (a) or (b) of this section, any person who commits a
felony, or attempts to commit a felony, because of the victim's race,
color, religion, nationality, country of origin, ancestry, gender,
disability, or sexual orientation, or because he or she perceives
that the victim has one or more of those characteristics, and who
voluntarily acted in concert with another person, either personally
or by aiding and abetting another person, shall receive an additional
two, three, or four years in the state prison, at the court's
discretion.
   (d) For the purpose of imposing an additional term under
subdivision (a) or (c), it shall be a factor in aggravation that the
defendant personally used a firearm in the commission of the offense.
  Nothing in this subdivision shall preclude a court from also
imposing a sentence enhancement pursuant to Section 12022.5 or
12022.55, or any other law.
   (e) A person who is punished pursuant to this section also shall
receive an additional term of one year in the state prison for each
prior felony conviction on charges brought and tried separately in
which it was found by the trier of fact or admitted by the defendant
that the crime was committed because of the victim's race, color,
religion, nationality, country of origin, ancestry, disability,
gender, or sexual orientation, or that the crime was committed
because the defendant perceived that the victim had one or more of
those characteristics.  This additional term shall only apply where a
sentence enhancement is not imposed pursuant to Section 667 or
667.5.
   (f) Any additional term authorized by this section shall not be
imposed unless the allegation is charged in the accusatory pleading
and admitted by the defendant or found to be true by the trier of
fact.
   (g) Any additional term imposed pursuant to this section shall be
in addition to any other punishment provided by law.
   (h) Notwithstanding any other law, the court may strike any
additional term imposed by this section if the court determines that
there are mitigating circumstances and states on the record the
reasons for striking the additional punishment.
   (i) (1) "Because of" means that the bias motivation must be a
cause in fact of the offense, whether or not other causes also exist.
  When multiple concurrent motives exist, the prohibited bias must be
a substantial factor in bringing about the particular result.
   (2) This subdivision does not constitute a change in, but is
declaratory of, existing law under In Re M.S. (1995) 10 Cal. 4th 698
and People v.  Superior Court (Aishman) (1995) 10 Cal. 4th 735.
  SEC. 2.5.  Section 422.75 of the Penal Code is amended to read:
   422.75.  (a) Except in the case of a person punished under Section
422.7, a person who commits a felony or attempts to commit a felony
because of the victim's race, color, religion, nationality, country
of origin, ancestry, disability, gender, or sexual orientation, or
because he or she perceives that the victim has one or more of those
characteristics, shall receive an additional term of one, two, or
three years in the state prison, at the court's discretion.
   (b) Except in the case of a person punished under Section 422.7 or
subdivision (a) of this section, any person who commits a felony or
attempts to commit a felony against the property of a public agency
or private institution, including a school, educational facility,
library or community center, meeting hall, place of worship, or
offices of an advocacy group, or the grounds adjacent to, owned, or
rented by the public agency or private institution, because the
property of the public agency or private institution is identified or
associated with a person or group of an identifiable race, color,
religion, nationality, country of origin, ancestry, gender,
disability, or sexual orientation, shall receive an additional term
of one, two, or three years in the state prison, at the court's
discretion.
   (c) Except in the case of a person punished under Section 422.7 or
subdivision (a) or (b) of this section, any person who commits a
felony, or attempts to commit a felony, because of the victim's race,
color, religion, nationality, country of origin, ancestry, gender,
disability, or sexual orientation, or because he or she perceives
that the victim has one or more of those characteristics, and who
voluntarily acted in concert with another person, either personally
or by aiding and abetting another person, shall receive an additional
two, three, or four years in the state prison, at the court's
discretion.
   (d) For the purpose of imposing an additional term under
subdivision (a) or (c), it shall be a factor in aggravation that the
defendant personally used a firearm in the commission of the offense.
  Nothing in this subdivision shall preclude a court from also
imposing a sentence enhancement pursuant to Section 12022.5,
12022.53, or 12022.55, or any other law.
   (e) A person who is punished pursuant to this section also shall
receive an additional term of one year in the state prison for each
prior felony conviction on charges brought and tried separately in
which it was found by the trier of fact or admitted by the defendant
that the crime was committed because of the victim's race, color,
religion, nationality, country of origin, ancestry, disability,
gender, or sexual orientation, or that the crime was committed
because the defendant perceived that the victim had one or more of
those characteristics.  This additional term shall only apply where a
sentence enhancement is not imposed pursuant to Section 667 or
667.5.
   (f) Any additional term authorized by this section shall not be
imposed unless the allegation is charged in the accusatory pleading
and admitted by the defendant or found to be true by the trier of
fact.
   (g) Any additional term imposed pursuant to this section shall be
in addition to any other punishment provided by law.
   (h) Notwithstanding any other provision of law, the court may
strike any additional term imposed by this section if the court
determines that there are mitigating circumstances and states on the
record the reasons for striking the additional punishment.
   (i) (1) "Because of" means that the bias motivation must be a
cause in fact of the offense, whether or not other causes also exist.
  When multiple concurrent motives exist, the prohibited bias must be
a substantial factor in bringing about the particular result.
   (2) This subdivision does not constitute a change in, but is
declaratory of, existing law under In Re M.S. (1995) 10 Cal. 4th 698
and People v.  Superior Court (Aishman)(1995) 10 Cal. 4th 735.
  SEC. 3.  Section 422.76 is added to the Penal Code, to read:
   422.76.  For purposes of Section 186.21, subdivisions (a) and (b)
of Section 422.6, Section 422.7, subdivisions (a), (b), (c), and (e)
of Section 422.75, Sections 1170.75 and 11410, paragraph (9) of
subdivision (b) of Section 11413, Section 13023, subdivision (c) of
Section 13519.4, and subdivision (a) of Section 13519.6, "gender"
means the victim's actual sex or the defendant's perception of the
victim's sex, and includes the defendant's perception of the victim's
identity, appearance, or behavior, whether or not that identity,
appearance, or behavior is different from that traditionally
associated with the victim's sex at birth.
  SEC. 3.1.  Section 422.76 is added to the Penal Code, to read:
   422.76.  For purposes of Sections 186.21, 190.03, subdivisions (a)
and (b) of Section 422.6, Section 422.7, subdivisions (a), (b), (c),
and (e) of Section 422.75, Sections 1170.75 and 11410, paragraph (9)
of subdivision (b) of Section 11413, Section 13023, subdivision (c)
of Section 13519.4, and subdivision (a) of Section 13519.6, "gender"
means the victim's actual sex or the defendant's perception of the
victim's sex, and includes the defendant's perception of the victim's
identity, appearance, or behavior, whether or not that identity,
appearance, or behavior is different from that traditionally
associated with the victim's sex at birth.
  SEC. 4.  Section 11410 of the Penal Code is amended to read:
   11410.  The Legislature finds and declares that it is the right of
every person regardless of race, color, creed, religion, gender, or
national origin, to be secure and protected from fear, intimidation,
and physical harm caused by the activities of violent groups and
individuals.  It is not the intent of this chapter to interfere with
the exercise of rights protected by the Constitution of the United
States.  The Legislature recognizes the constitutional right of every
citizen to harbor and express beliefs on any subject whatsoever and
to associate with others who share similar beliefs.  The Legislature
further finds however, that the advocacy of unlawful violent acts by
groups against other persons or groups under circumstances where
death or great bodily injury is likely to result is not
constitutionally protected, poses a threat to public order and safety
and should be subject to criminal and civil sanctions.
  SEC. 5.  Section 13023 of the Penal Code is amended to read:
   13023.  Commencing July 1, 1990, subject to the availability of
adequate funding, the Attorney General shall direct local law
enforcement agencies to report to the Department of Justice, in a
manner to be prescribed by the Attorney General, any information that
may be required relative to any criminal acts or attempted criminal
acts to cause physical injury, emotional suffering, or property
damage where there is a reasonable cause to believe that the crime
was motivated, in whole or in part, by the victim's race, ethnicity,
religion, gender, sexual orientation, or physical or mental
disability.  On or before July 1, 1992, and every July 1 thereafter,
the Department of Justice shall submit a report to the Legislature
analyzing the results of the information obtained from local law
enforcement agencies pursuant to this section.
  SEC. 6.  Section 13519.6 of the Penal Code is amended to read:
   13519.6.  (a) The commission shall, on or before December 31,
1993, develop guidelines and a course of instruction and training for
law enforcement officers who are employed as peace officers, or who
are not yet employed as a peace officer but are enrolled in a
training academy for law enforcement officers, addressing hate
crimes.  "Hate crimes," for purposes of this section, means any act
of intimidation, harassment, physical force, or the threat of
physical force directed against any person, or family, or their
property or advocate, motivated either in whole or in part by the
hostility to the real or perceived ethnic background, national
origin, religious belief, gender, age, disability, or sexual
orientation, with the intention of causing fear and intimidation.
   (b) The course shall make maximum use of audio and video
communication and other simulation methods and shall include
instruction in each of the following procedures and techniques:
   (1) Indicators of hate crimes.
   (2) The impact of these crimes on the victim, the victim's family,
and the community.
   (3) Knowledge of the laws dealing with hate crimes and the legal
rights of, and the remedies available to, victims of hate crimes.
   (4) Law enforcement procedures, reporting, and documentation of
hate crimes.
   (5) Techniques and methods to handle incidents of hate crimes in a
noncombative manner.
   (c) The guidelines developed by the commission shall incorporate
the procedures and techniques specified in subdivision (b).
   (d) The course of training leading to the basic certificate issued
by the commission shall, not later than July 1, 1994, include the
course of instruction described in subdivision (a).
   (e) As used in this section, "peace officer" means any person
designated as a peace officer by Section 830.1 or 830.2.
  SEC. 7.  Section 422.76 of the Penal Code as added by Section 3 of
this act does not constitute a change in, but is declaratory of,
existing law.
  SEC. 8.  Section 2.5 of this bill incorporates amendments to
Section 422.75 of the Penal Code proposed by both this bill and SB
2168.  It shall only become operative if (1) both bills are enacted
and become effective on or before January 1, 1999, (2) each bill
amends Section 422.75 of the Penal Code, and (3) this bill is enacted
after SB 2168, in which case Section 422.75 of the Penal Code as
amended by SB 2168, shall remain operative only until the operative
date of this bill, at which time Section 2.5 of this bill shall
become operative, and Section 2 of this bill shall not become
operative.
  SEC. 9.  Section 3.1 of this bill shall become operative only if
(1) both this bill and AB 2324 are enacted and become effective on or
before January 1, 1999, and (2) AB 2324 adds Section 190.03 to the
Penal Code, in which case Section 3 of this bill shall not become
operative.
  SEC. 10.  No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution for certain
costs that may be incurred by a local agency or school district
because in that regard this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.
   However, notwithstanding Section 17610 of the Government Code, if
the Commission on State Mandates determines that this act contains
other costs mandated by the state, reimbursement to local agencies
and school districts for those costs shall be made pursuant to Part 7
(commencing with Section 17500) of Division 4 of Title 2 of the
Government Code.  If the statewide cost of the claim for
reimbursement does not exceed one million dollars ($1,000,000),
reimbursement shall be made from the State Mandates Claims Fund.
   Notwithstanding Section 17580 of the Government Code, unless
otherwise specified, the provisions of this act shall become
operative on the same date that the act takes effect pursuant to the
California Constitution.