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AB-28 Hate crimes.(2021-2022)

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Date Published: 04/29/2021 09:00 PM
AB28:v96#DOCUMENT

Amended  IN  Assembly  April 29, 2021
Amended  IN  Assembly  April 21, 2021
Amended  IN  Assembly  March 30, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 28


Introduced by Assembly Member Chau

December 07, 2020


An act to amend Sections 422.56, 422.6, 422.7, and 422.87 422.6 and 422.7 of the Penal Code, relating to hate crimes.


LEGISLATIVE COUNSEL'S DIGEST


AB 28, as amended, Chau. Hate crimes.
Existing law defines “hate crime” as a criminal act committed, in whole or in part, because of actual or perceived characteristics of the victim, including, among other things, race, religion, disability, and sexual orientation. Existing law defines, “in whole or in part because of” as meaning that the bias motivation must be a cause in fact of the offense. Existing law provides that the punishment for misdemeanor hate crimes is imprisonment in a county jail not to exceed one year or a fine of up to $5,000, or both imprisonment and that fine. Under existing law, hate crimes with specified underlying acts or other circumstances are punished by imprisonment in a county jail for not more then one year or for 18 months, or 2 or 3 years, or by a fine of up to $10,000, or by both imprisonment and that fine.

This bill would define “bias motivation” for this purpose as a preexisting negative attitude toward actual or perceived characteristics, including discriminatory selection, as defined. The bill would provide examples of acts that would demonstrate bias motivation, including use of a slur based on the actual or perceived characteristic of the victim, that occurred at, or shortly before or after, the time of the crime, and that was directed at the victim or at a person who shares the actual or perceived characteristic with the victim.

This bill would increase the fines for a person who is convicted of a hate crime by $2,500 and would require those funds to be used, upon appropriation, to fund classes or programs on racial or ethnic sensitivity, or other similar training in the area of civil rights, as specified.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.Section 422.56 of the Penal Code is amended to read:
422.56.

For purposes of this title, the following definitions shall apply:

(a)“Association with a person or group with these actual or perceived characteristics” includes, but is not limited to, advocacy for, identification with, participating in an event concerning, or being on the ground owned or rented by, or adjacent to, any of the following: a community center, educational facility, family, individual, office, meeting hall, place of worship, private institution, public agency, library, or other entity, group, or person that has, or is identified with people who have, one or more of those characteristics listed in the definition of “hate crime” under paragraphs (1) to (6), inclusive, of subdivision (a) of Section 422.55.

(b)“Bias motivation” means a preexisting negative attitude toward actual or perceived characteristics referenced in Section 422.55 and includes discriminatory selection. Depending on the circumstances of each case, bias motivation may include, but is not limited to, hatred, animosity, resentment, revulsion, contempt, unreasonable fear, paranoia, callousness, thrill-seeking, desire for social dominance, desire for social bonding with those of one’s “own kind,” perception that the person is responsible for a social ill because of the protected characteristic, or a perception of the vulnerability of the victim due to the victim being perceived as being weak, worthless, or fair game because of a protected characteristic, including, but not limited to, disability or gender. Bias motivation may be demonstrated by any of the following acts:

(1)The use of a slur based on the actual or perceived characteristic of the victim, that occurred at the time of, or shortly before or after, the crime, and that was directed at the victim or at a person who shares the actual or perceived characteristic with the victim.

(2)Vandalism of property that occurred at the time of, or shortly before or after, the crime, that used words or symbols that show bias against people who share the victim’s actual or perceived characteristic, including, but not limited to, words, phrases, or symbols commonly associated with a hate group.

(3)Posts on social media or other media, shortly before or after the crime, that blame the group that shares the victims actual or perceived characteristic for a societal problem, including, but not limited to, causing illness, crime, or economic harm.

(c)“Disability” includes mental disability and physical disability as defined in Section 12926 of the Government Code, regardless of whether those disabilities are temporary, permanent, congenital, or acquired by heredity, accident, injury, advanced age, or illness. This definition is declaratory of existing law.

(d)“Discriminatory selection” means to specifically choose to target a victim, or series of victims, based on the actual or perceived characteristic of the victim when committing a crime, when there were other targets available and the only apparently discernable difference in choosing the victim was the actual or perceived characteristic.

(e)“Gender” means sex, and includes a person’s gender identity and gender expression. “Gender expression” means a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.

(f)“In whole or in part 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 bias motivation must be a substantial factor in bringing about the particular result. There is no requirement that the bias motivation be a main factor, or that the crime would not have been committed but for the actual or perceived characteristic. 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.

(g)“Nationality” includes citizenship, country of origin, and national origin.

(h)“Race or ethnicity” includes ancestry, color, and ethnic background.

(i)“Religion” includes all aspects of religious belief, observance, and practice and includes agnosticism and atheism.

(j)“Sexual orientation” means heterosexuality, homosexuality, or bisexuality.

(k)“Victim” includes, but is not limited to, a community center, educational facility, entity, family, group, individual, office, meeting hall, person, place of worship, private institution, public agency, library, or other victim or intended victim of the offense.

SEC. 2.SECTION 1.

 Section 422.6 of the Penal Code is amended to read:

422.6.
 (a) A person, whether or not acting under color of law, shall not, by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of this state or by the Constitution or laws of the United States in whole or in part because of one or more of the actual or perceived characteristics of the victim listed in subdivision (a) of Section 422.55.
(b) A person, whether or not acting under color of law, shall not knowingly deface, damage, or destroy the real or personal property of any other person for the purpose of intimidating or interfering with the free exercise or enjoyment of any right or privilege secured to the other person by the Constitution or laws of this state or by the Constitution or laws of the United States, in whole or in part because of one or more of the actual or perceived characteristics of the victim listed in subdivision (a) of Section 422.55.
(c) (1) A person convicted of violating subdivision (a) or (b) shall be punished by imprisonment in a county jail not to exceed one year, or by a fine not to exceed seven thousand five hundred dollars ($7,500), or by both the above imprisonment and fine, and the court shall order the defendant to perform a minimum of community service, not to exceed 400 hours, to be performed over a period not to exceed 350 days, during a time other than the person’s hours of employment or school attendance. However, a person shall not be convicted of violating subdivision (a) based upon speech alone, except upon a showing that the speech itself threatened violence against a specific person or group of persons and that the defendant had the apparent ability to carry out the threat.
(2) Up to two thousand five hundred dollars ($2,500) of any fine received pursuant to paragraph (1) shall be placed in the Trial Court Trust Fund and may be used, upon appropriation of the Legislature, to fund classes or programs on racial or ethnic sensitivity, or other similar training in the area of civil rights, as provided in paragraph (1) of subdivision (a) of Section 422.85.
(d) Conduct that violates this and any other law, including, but not limited to, an offense described in Article 4.5 (commencing with Section 11410) of Chapter 3 of Title 1 of Part 4, may be charged under all applicable provisions. However, an act or omission punishable in different ways by this section and other provisions of law shall not be punished under more than one provision, and the penalty to be imposed shall be determined as set forth in Section 654.

SEC. 3.SEC. 2.

 Section 422.7 of the Penal Code is amended to read:

422.7.
 (a) Except in the case of a person punished under Section 422.6, a hate crime that is not made punishable by imprisonment in the state prison shall be punishable by imprisonment in a county jail not to exceed one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by a fine not to exceed twelve thousand five hundred dollars ($12,500), or by both that imprisonment and fine, if the crime is committed against the person or property of another for the purpose of intimidating or interfering with that other person’s free exercise or enjoyment of any right secured by the Constitution or laws of this state or by the Constitution or laws of the United States under any of the following circumstances, which shall be charged in the accusatory pleading:
(1) The crime against the person of another either includes the present ability to commit a violent injury or causes actual physical injury.
(2) The crime against property causes damage in excess of nine hundred fifty dollars ($950).
(3) The person charged with a crime under this section has been convicted previously of a violation of subdivision (a) or (b) of Section 422.6, or has been convicted previously of a conspiracy to commit a crime described in subdivision (a) or (b) of Section 422.6.
(b) Up to two thousand five hundred dollars ($2,500) of any fine received pursuant to subdivision (a) shall be placed in the Trial Court Trust Fund and may be used, upon appropriation of the Legislature, to fund classes or programs on racial or ethnic sensitivity, or other similar training in the area of civil rights, as provided in paragraph (1) of subdivision (a) of Section 422.85.

SEC. 4.Section 422.87 of the Penal Code is amended to read:
422.87.

(a)Each local law enforcement agency may adopt a hate crimes policy. A local law enforcement agency that updates an existing hate crimes policy or adopts a new hate crimes policy shall include, but not be limited to, all of the following:

(1)The definitions in Sections 422.55 and 422.56.

(2)The content of the model policy framework that the Commission on Peace Officer Standards and Training developed pursuant to Section 13519.6, and any content that the commission may revise or add in the future, including any policy, definitions, response and reporting responsibilities, training resources, and planning and prevention methods.

(3)(A)Information regarding bias motivation.

(B)(i)In recognizing suspected disability-bias hate crimes, the policy shall advise officers to consider whether there is any indication that the perpetrator was motivated by hostility or other bias, occasioned by factors such as, but not limited to, dislike of persons who arouse fear or guilt, a perception that persons with disabilities are inferior and therefore “deserving victims,” a fear of persons whose visible traits are perceived as being disturbing to others, or resentment of those who need, demand, or receive alternative educational, physical, or social accommodations.

(ii)In recognizing suspected disability-bias hate crimes, the policy also shall advise officers to consider whether there is any indication that the perpetrator perceived the victim to be vulnerable and, if so, if this perception is grounded, in whole or in part, in antidisability bias. This includes, but is not limited to, if a perpetrator targets a person with a particular perceived disability while avoiding other vulnerable-appearing persons such as inebriated persons or persons with perceived disabilities different than those of the victim, those circumstances could be evidence that the perpetrator’s motivations included bias against persons with the perceived disability of the victim and that the crime must be reported as a suspected hate crime and not a mere crime of opportunity.

(4)Information regarding the general underreporting of hate crimes, the more extreme underreporting of antidisability and antigender hate crimes, and a plan for the agency to remedy this underreporting.

(5)A protocol for reporting suspected hate crimes to the Department of Justice pursuant to Section 13023.

(6)A checklist of first responder responsibilities, including, but not limited to, being sensitive to effects of the crime on the victim, determining whether additional resources are needed on the scene to assist the victim or whether to refer the victim to appropriate community and legal services, and giving the victims and any interested persons the agency’s hate crimes brochure, as required by Section 422.92.

(7)A specific procedure for transmitting and periodically retransmitting the policy and any related orders to all officers, including a simple and immediate way for officers to access the policy in the field when needed.

(8)The title or titles of the officer or officers responsible for ensuring that the department has a hate crime brochure, as required by Section 422.92, and ensuring that all officers are trained to distribute the brochure to all suspected hate crime victims and all other interested persons.

(9)A requirement that all officers be familiar with the policy and carry out the policy at all times unless directed by the chief, sheriff, director, or other chief executive of the law enforcement agency or other command-level officer to whom the chief executive officer formally delegates this responsibility.

(b)A local law enforcement agency that updates an existing hate crimes policy or adopts a new hate crimes policy may include any of the provisions of a model hate crime policy and other relevant documents developed by the International Association of Chiefs of Police that are relevant to California and consistent with this chapter.