Existing law requires certain elected officers to forfeit their office upon the conviction of a crime pursuant to the federal Stolen Valor Act of 2005 that involves a false claim of receipt of any military decoration or medal, as specified, or the California Stolen Valor Act that involves a false claim, made with the intent to defraud, that the person is a veteran or a member of the Armed Forces of the United States. Existing law, the federal Stolen Valor Act of 2013, prohibits a person, with the intent to obtain money, property, or other tangible property, from fraudulently holding oneself out to be a recipient of a military decoration or medal, as specified.

This bill would instead require these elected officers to forfeit their office upon the conviction of a crime pursuant to the federal Stolen Valor Act of 2013 or the California Stolen Valor Act that involves a fraudulent claim, made with the intent to obtain money, property, or other tangible benefit, as defined, that the person is a veteran or a member of the Armed Forces of the United States, as prescribed in those acts.

Existing law makes it a misdemeanor for a person to falsely represent himself or herself as a veteran or member of the Armed Forces of the United States in connection with specified acts. Existing law provides that any person who, orally, in writing, or by wearing any military decoration, falsely represents himself or herself to have been awarded any military decoration, with the intent to defraud, is guilty of a misdemeanor.

This bill would conform those provisions to the federal Stolen Valor Act of 2013, and impose a misdemeanor only if the prescribed actions described above are made fraudulently with the intent to obtain money, property, or other tangible benefit, as defined. The bill would expand the above-described crime related to misrepresentation to include a person who fraudulently represents himself or herself as a veteran or member of other specified armed forces with the intent to obtain money, property, or other tangible benefit. The bill would additionally make it a misdemeanor for a person to misrepresent himself or herself as a member or veteran of specified armed forces in connection with certain acts, such as, among other things, the forgery or use of falsified military documentation, or for purposes of employment or promoting a business, charity, or other endeavor, as prescribed.

By creating new crimes, this bill would impose a state-mandated local program.

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.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law requires certain elected officers to forfeit their office upon the conviction of a crime pursuant to the federal Stolen Valor Act of 2005 that involves a false claim of receipt of any military decoration or medal, as specified, or the California Stolen Valor Act that involves a false claim, made with the intent to defraud, that the person is a veteran or a member of the Armed Forces of the United States. Existing law, the federal Stolen Valor Act of 2013, prohibits a person, with the intent to obtain money, property, or other tangible property, from fraudulently holding oneself out to be a recipient of a military decoration or medal, as specified.

This bill would instead require these elected officers to forfeit their office upon the conviction of a crime pursuant to the federal Stolen Valor Act of 2013 or the California Stolen Valor Act that involves a fraudulent claim, made with the intent to obtain money, property, or other tangible benefit, as defined, that the person is a veteran or a member of the Armed Forces of the United States, as prescribed in those acts.

Existing law makes it a misdemeanor for a person to falsely represent himself or herself as a veteran or member of the Armed Forces of the United States in connection with specified acts. Existing law provides that any person who, orally, in writing, or by wearing any military decoration, falsely represents himself or herself to have been awarded any military decoration, with the intent to defraud, is guilty of a misdemeanor.

This bill would conform those provisions to the federal Stolen Valor Act of 2013, and impose a misdemeanor only if the prescribed actions described above are made fraudulently with the intent to obtain money, property, or other tangible benefit, as defined. The bill would expand the above-described crime related to misrepresentation to include a person who fraudulently represents himself or herself as a veteran or member of other specified armed forces with the intent to obtain money, property, or other tangible benefit. The bill would additionally make it a misdemeanor for a person to misrepresent himself or herself as a member or veteran of specified armed forces in connection with certain acts, such as, among other things, the forgery or use of falsified military documentation, or for purposes of employment or promoting a business, charity, or other endeavor, as prescribed.

By creating new crimes, this bill would impose a state-mandated local program.

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.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law requires certain elected officers to forfeit their office upon the conviction of a crime pursuant to the federal Stolen Valor Act of 2005 that involves a false claim of receipt of any military decoration or medal, as specified, or the California Stolen Valor Act that involves a false claim, made with the intent to defraud, that the person is a veteran or a member of the Armed Forces of the United States. Existing law, the federal Stolen Valor Act of 2013, prohibits a person, with the intent to obtain money, property, or other tangible property, from fraudulently holding oneself out to be a recipient of a military decoration or medal, as specified.

This bill would instead require these elected officers to forfeit their office upon the conviction of a crime pursuant to the federal Stolen Valor Act of 2013 or the California Stolen Valor Act that involves a fraudulent claim, made with the intent to obtain money, property, or other tangible benefit, as defined, that the person is a veteran or a member of the Armed Forces of the United States, as prescribed in those acts.

Existing law makes it a misdemeanor for a person to falsely represent himself or herself as a veteran or member of the Armed Forces of the United States in connection with specified acts. Existing law provides that any person who, orally, in writing, or by wearing any military decoration, falsely represents himself or herself to have been awarded any military decoration, with the intent to defraud, is guilty of a misdemeanor.

This bill would conform those provisions to the federal Stolen Valor Act of 2013, and impose a misdemeanor only if the prescribed actions described above are made fraudulently with the intent to obtain money, property, or other tangible benefit, as defined. The bill would expand the above-described crime related to misrepresentation to include a person who fraudulently represents himself or herself as a veteran or member of other specified armed forces with the intent to obtain money, property, or other tangible benefit. The bill would additionally make it a misdemeanor for a person to misrepresent himself or herself as a member or veteran of specified armed forces in connection with certain acts, such as, among other things, the forgery or use of falsified military documentation, or for purposes of employment or promoting a business, charity, or other endeavor, as prescribed.

By creating new crimes, this bill would impose a state-mandated local program.

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.

This bill would provide that no reimbursement is required by this act for a specified reason.

 THIRD READING  

Bill No: AB 153

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/6/17

AYES: Skinner, Anderson, Bradford, Jackson, Mitchell, Stone, Wiener

SENATE VETERANS AFFAIRS COMMITTEE: 7-0, 6/27/17

AYES: Newman, Nielsen, Dodd, Hueso, Nguyen, Roth, Wilk

SENATE APPROPRIATIONS COMMITTEE: 7-0, 9/1/17

AYES: Lara, Bates, Beall, Bradford, Hill, Nielsen, Wiener

ASSEMBLY FLOOR: 74-0, 4/20/17 (Consent) - See last page for vote

SUBJECT:

SOURCE: American G.I. Forum of California

AMVETS- Department of California

DIGEST:

This bill modifies the language of the California Stolen Valor Act to conform to the federal Stolen Valor Act of 2013.

ANALYSIS: Existing federal law provides 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 shall be fined under this title, imprisoned not more than one year, or both.” (18 U.S.C. § 704 subd. (b).)

Existing state law:

1. Provides that an 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 pursuant to the federal Stolen Valor Act of 2005 or the California Stolen Valor Act, as specified. (Gov. Code, § 3003.)
2. Provides that it is a misdemeanor for any person to:
   
   1. Falsely represent himself or herself as a veteran or ex-serviceman of any war in which the United States was engaged, in connection with the soliciting of aid or the sale or attempted sale of any property. (Pen. Code § 532b, subd. (a).)
      
   2. Falsely claim, or present himself or herself, to be a veteran or member of the Armed Forces of the United States, with the intent to defraud. (Pen. Code § 532b subd. (b).)
      
   3. Orally, in writing, or by wearing any military decoration, falsely represents himself or herself to have been awarded any military decoration, with the intent to defraud. If the person is a veteran of the Armed Forces of the U.S., he or she is guilty of either an infraction or a misdemeanor. (Pen. Code § 532b, subd. (c)(1) & (2).)
      
3. Defines military decoration 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 service medals or badges awarded to the members of those forces, or the ribbon, button, or rosette of that badge, decoration, or medal, or any colorable imitation of that item.” (Pen. Code § 532b, subd. (c)(3).)
   
4. Provides that this section does not apply to face-to-face solicitations involving less than $10. (Pen. Code, § 532b, subd. (d).)

This bill:

1. 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.”
   
2. 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.”
   
3. Amends Penal Code Section 532b to include the California National Guard, the State Military Reserve, the Naval Militia, the national guard of any other state, and any other reserve component of the Armed Forces of the United States in the list of service branches covered by the California Stolen Valor Act.
   
4. Creates misdemeanors for any person who:
   1. Forges documentation reflecting the awarding of a military decoration that he or she has not received for the purposes of obtaining money, property, or receiving a tangible benefit;
   2. Knowingly, with the intent to impersonate and to deceive, for the purposes of obtaining money, property, or receiving a tangible benefit, 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;
      
   3. Knowingly utilizes falsified military identification for the purposes of obtaining money, property, or receiving a tangible benefit;
   4. Knowingly, with the intent to impersonate, for the purposes of promoting a business, charity, or endeavor, misrepresents himself or herself as a member 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
   5. 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, or the Naval Militia by wearing the uniform or military decoration authorized for use by the members or veterans of those forces.
5. Requires an officer to forfeit his or her office upon a conviction for a crime pursuant to the federal Stolen Valor Act of 2013 or California Stolen Valor Act that involves a fraudulent claim, made with the intent to obtain money, property, or other tangible benefit, that the person is a veteran or a member of the Armed Forces of the United States.
6. Makes other conforming changes.

Background

California currently requires an elected officer forfeit his or her office upon conviction of a crime pursuant to either the federal Stolen Valor Act of 2005 or the California Stolen Valor Act. In 2013, the federal Stolen Valor Act was updated in response to the U.S. Supreme Court’s ruling that the 2005 act was unconstitutional. (See United States v. Alvarez (2012) 132 S.Ct. 2537, 2556 [183 L.Ed.2d 547].)

Although the First Amendment of the U.S. Constitution protects free speech, not all speech is protected. For example, obscenity, defamation, fraud, incitement, and speech integral to criminal conduct are unprotected categories of speech. (U.S. v. Stevens (2010) 559 U.S. 460, 468-469.) If speech does not fall into one of these well-defined categories, then that speech enjoys at least some level of First Amendment protection.

The threshold question in determining what level of protection to give speech is whether the regulation is content-based or content-neutral. (Madsen v. Women’s Health Center, Inc., (1994) 512 U.S. 763, 763-764.) Content-based restrictions on speech receive the strictest level of scrutiny. Therefore, a content-based restriction will only survive if the government has a compelling interest in regulating the speech and the least restrictive means of regulating the speech is used. (McIntyre v. Elections Comm’n (1995) 514 U.S. 334, 346-47.) Conversely, content-neutral speech is subject to the less restrictive intermediate scrutiny test, which only requires that the government have a legitimate interest in regulating the speech and the means used to regulate the speech are narrowly tailored. In contrast to strict scrutiny, the means chosen need not be the least restrictive means. (Ward v. Rock Against Racism (1989) 491 U.S. 781, 798-800.)

The U.S. Supreme Court ruled on the speech implicated in this bill when it examined the federal Stolen Valor Act of 2005 in United States v. Alvarez, supra, 132 S.Ct. 2537. The relevant language of the Act 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.”

A plurality of the Court held that this provision was a restriction on content-based speech, and therefore subject to strict scrutiny. (Alvarez, supra, 132 S.Ct. at 2543.) Critical to the Court’s holding is that the statute prohibited false claims without any requirement of cognizable harm as a result of the false claims. The Court found that although the government’s interest in limiting this type of speech was compelling, other means exist to achieve its goal without restricting protected speech. In particular, the Court held the combination of a database for medal recipients coupled with public condemnation would serve just as well to deter false claims regarding military service. (Alvarez, supra, at pp. 132 S.Ct. at pp. 2550-2551.) Because alternative means exist to address the government’s goal, the Court held the statutory provision unconstitutional. (Ibid.)

Two Justices concurred, but applied intermediate scrutiny because they found the false speech to be of limited value. (Alvarez, supra, 132 S.Ct. at p. 2552.) The false claims at issue here were easily verifiable, and therefore unlikely to aid in the debate of public issues which is the heart of the First Amendment’s speech protections. However, the Court still held the statutory provision unconstitutional because of its potential to chill protected speech. Critical to the concurring Justices was the lack of intent to cause some legally cognizable harm, such as obtaining unearned benefits from the Veterans Administration 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 holding in Alvarez. For example, the intent to cause some legally cognizable harm has been added. Notably, the Court specifically addressed the receipt of unearned benefits in Alvarez and stated that such restrictions are likely constitutional. This bill largely mirrors the language of the federal Act.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

• Court: Unknown, potentially-significant cost pressure (General Fund*) to the court to adjudicate charges brought against defendants who commit conduct proscribed by this measure.
• Prosecution & incarceration: Unknown potential increase in non-reimbursable local enforcement and incarceration costs (local funds) to prosecute and incarcerate those charged with conduct proscribed by this bill. Costs would be offset, to a degree, by fee and assessment revenue.

*Trial Court Trust Fund

SUPPORT: (Verified 9/1/17)

American G.I. Forum of California (co-source)

AMVETS- Department of California (co-source)

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

San Diego Military Advisory Council

Vietnam Veterans of America, California State Council

OPPOSITION: (Verified 9/1/17)

None received

ARGUMENT IN SUPPORT: The San Diego Military Advisory Council supports this bill stating:

…[T]he United States Supreme Court struck down the Federal Stolen Valor Act of 2005 stating that the action of claiming military service is protected under free speech. Therefore, the Federal Stolen Valor act of 2005 was found to be unconstitutional. Congress then passed the Federal Stolen Valor Act of 2013 with a focus on intent to make profit, obtain money, property, or obtaining something with/of tangible benefit or value.

SDMAC sends this letter to you to indicate its strong support and endorsement for Assembly Bill 153 which would conform California law to Federal law when stolen valor is used to gain “tangible benefit.”

ASSEMBLY FLOOR: 74-0, 4/20/17

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bocanegra, Bonta, Burke, Caballero, Calderon, Cervantes, Chau, Chávez, Chen, Chiu, Chu, Cooley, Cooper, Cunningham, Dababneh, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gomez, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Brough, Choi, Gallagher, Mathis, Patterson, Ridley-Thomas

Prepared by: Stephanie Jordan / PUB. S. /

9/3/17 18:18:25

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

AB 153 (Chávez) - Military fraud

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 153 expands the crime of false representation as a war veteran or as a veteran or member of the Armed Forces and conforms the California Stolen Valor Act to the federal Stolen Valor Act of 2013, as specified.

Fiscal Impact:

• Court: Unknown, potentially-significant cost pressure (General Fund*) to the court to adjudicate charges brought against defendants who commit conduct proscribed by this measure.
• Prosecution & incarceration: Unknown potential increase in non-reimbursable local enforcement and incarceration costs (local funds) to prosecute and incarcerate those charged with conduct proscribed by this bill. Costs would be offset, to a degree, by fee and assessment revenue.

*Trial Court Trust Fund

Background:

Existing law requires certain elected officers to forfeit their office upon the conviction of a crime pursuant to the federal Stolen Valor Act of 2005 that involves a false claim of receipt of any military decoration or medal, as specified, or the California Stolen Valor Act that involves a false claim, made with the intent to defraud, that the person is a veteran or a member of the Armed Forces of the United States.

The federal Stolen Valor Act of 2013 prohibits a person, with the intent to obtain money, property, or other tangible property, from fraudulently holding oneself out to be a recipient of a military decoration or medal, as specified. California law makes it a misdemeanor for a person to falsely represent him or herself as a veteran or member of the Armed Forces of the United States in connection with specified acts. Additionally, existing law provides that any person who, orally, in writing, or by wearing any military decoration, falsely represents himself or herself to have been awarded any military decoration, with the intent to defraud, is guilty of a misdemeanor.

Proposed Law:

This bill would:

• Punish as a misdemeanor offense conduct that is fraudulent, with respect to false representation as a war veteran or as a veteran or member of the Armed Forces, with the intent to obtain money, property, or other tangible benefit, as defined.
• Expand the crime related to misrepresentation to include a person who fraudulently represents him or herself as a veteran or member of the California National Guard, the State Military Reserve, the Naval Militia, the national guard of any other state, or any other reserve component of the Armed Forces of the United States with the intent to obtain money, property, or other tangible benefit.
• Punish as a misdemeanor offense a person who misrepresents him or herself as a member or veteran of specified armed forces in connection with certain acts, such as, among other things, the forgery or use of falsified military documentation, or for purposes of employment or promoting a business, charity, or other endeavor, as prescribed.
• Require elected officers, as specified, to forfeit their office upon the conviction of a crime pursuant to the federal Stolen Valor Act of 2013 or the California Stolen Valor Act that involves a fraudulent claim, made with the intent to obtain money, property, or other tangible benefit, as defined, that the person is a veteran or a member of the Armed Forces of the United States, as prescribed in those acts.

Prior Legislation:

AB 1706 (Chavez, 2016) was substantially similar to this bill. AB 1706 was held on the Suspense File of this Committee.

AB 167 (Cook, Ch. 69, Stats. 2011) required that elected officers forfeit their office upon conviction of any of the crimes specified in the California Stolen Valor Act and the federal Stolen Valor Act of 2005.

AB 265 (Cook, Ch. 93, Stats. 2009) expanded the provision requiring local elected officers to forfeit office upon the conviction of a crime pursuant to the federal Stolen Valor Act of 2005 to include elected state officers.

SB 1482 (Correa, Ch. 118, Stats. 2008) provided 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 of 2005 that involves a false claim of receipt of a military decoration or medal described in that act.

Staff Comments:

The fiscal impact of this bill cannot be known with certainty, as the actual impact will be dependent on numerous factors, including, but not limited to, judicial and prosecutorial discretion, the criminal history of a defendant, and the factors unique to each case. As the crime expanded upon by this bill is punishable as a misdemeanor with the potential for incarceration, certain rights to the defendants are attached to the proceedings, including the right to a jury trial and the right to counsel (at public expense if the defendants are unable to afford the costs of representation). Consequently, to the extent that the court adjudicates a dozen or more of these new crimes, on average, that otherwise would not have been filed or resulted in a criminal action but for the alleged misrepresentation prohibited by this bill, court costs of this bill would surpass the Suspense File threshold.

-- END --

SENATE COMMITTEE ON VETERANS AFFAIRS

Senator Josh Newman, Chair

2017 - 2018 Regular

Bill No: AB 153 Hearing Date: 6/27/17

Subject: Military fraud

DESCRIPTION

Summary:

Generally conforms the California Stolen Valor Act to the federal Stolen Valor Act of 2013 (updates state law which conforms to the federal Stolen Valor Act of 2005).

Existing law:

1. Provides, under federal law, 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 shall be fined under this title, imprisoned not more than one year, or both.
   
2. States that an 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 pursuant to the federal Stolen Valor Act of 2005 or the California Stolen Valor Act, as specified.
   
3. States that it is a misdemeanor for any person to:
   
   1. Falsely represent oneself as a veteran or ex-serviceman of any war in which the United States was engaged, in connection with the soliciting of aid or the sale or attempted sale of any property;
      
   2. Falsely claim, or present oneself, to be a veteran or member of the Armed Forces of the United States, with the intent to defraud; and
      
   3. Orally, in writing, or by wearing any military decoration, falsely represent oneself to have been awarded any decoration, with the intent to defraud. If the person is an individual, he or she is guilty of either an infraction or a misdemeanor.
      
4. Defines “military decoration” 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 service medals or badges awarded to the members of those forces, or the ribbon, button, or rosette of that badge, decoration, or medal, or any colorable imitation of that item.”
   
5. Exempts face-to-face solicitations involving less than ten dollars.

This bill:

1. Requires an officer to forfeit their office under a conviction of the federal Stolen Valor Act of 2013 instead of the previous federal Stolen Valor Act of 2005.
   
2. Defines the intent for military fraud as “the intent to obtain money, property, or other tangible benefit.”
   
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.”
   
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.”
   
5. Includes the California National Guard (CNG), State Military Reserve (SMR), Naval Militia, the national guard of any other state, and any other reserve component of the Armed Forces of the United States in the list of service branches covered by the California Stolen Valor Act.
   
6. Creates the following misdemeanors for any person who:
   1. Forges documentation reflecting the awarding of a military decoration that he or she has not received for the purposes of obtaining money, property, or receiving a tangible benefit;
   2. Knowingly, with the intent to impersonate and to deceive, for the purposes of obtaining money, property, or receiving a tangible benefit, misrepresents oneself 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;
      
   3. Knowingly utilizes falsified military identification for the purposes of obtaining money, property, or receiving a tangible benefit, is guilty of a misdemeanor;
   4. Knowingly, with the intent to impersonate, for the purposes of promoting a business, charity, or endeavor, misrepresents oneself as a member 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
   5. Knowingly, with the intent to gain an advantage for employment purposes, misrepresents oneself 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.

BACKGROUND

AB 167 (2011) created California law modeled on the Federal Stolen Valor Act of 2005; the bill also established the requirement that elected officers vacate their office when convicted of stolen valor crimes. The federal Stolen Valor Act was updated in 2013 in response to the United States Supreme Court’s (USSC) ruling that the 2005 act was unconstitutional because it infringed upon free speech. (See United States v. Alvarez (2012) 132 S.Ct. 2537, 2556 [183 L.Ed.2d 547].) The new federal Act prohibits fraudulently wearing medals or other decorations with the intent to obtain money, property, or other tangible benefit.

The current California law 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. This means that the existing California Stolen Valor Act does not conform to the federal Stolen Valor Act of 2013.

COMMENT

Author Comments: “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.”

Committee Comments:

1. This bill is substantially similar to AB 1706 (Chávez, 2016). See below.
2. 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 the nation values 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, lawmakers chose to restrict and criminalize speech only when it uses military medals and decorations as currency, influence or leverage to obtain a tangible benefit.

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 USSC rulings.

Paraphrasing, should this bill become law the prohibited acts would be as follow:

• 1. Misrepresenting oneself as a member or veteran of the Armed Forces by wearing a uniform or military decoration.
  2. Forging documentation reflecting the award of any military decoration a person has not received.
  3. Misrepresenting as a member or veteran by wearing a uniform or decoration.
  4. Using falsified military identification.
  5. Promoting a business, charity, or endeavor by impersonating a member or veteran of the Armed Forces by wearing a uniform or military decoration.

Prior/Related Legislation:

AB 1706 (Chávez, 2016) would have modified the language of the California Stolen Valor Act to conform to the Stolen Valor Act of 2013. (Died suspense, Senate Appropriations Committee)

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.

AB 1829 (Cook), Chapter 366, Statutes of 2010) increases the penalty from an infraction to a misdemeanor for civilians who, orally, in writing, or by wearing any military decoration, falsely represents oneself to have been awarded any military decoration, with the intent to defraud.

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.

SB 1482 (Correa, Chapter 118, Statutes of 2008) provides that an elected officer of a city, county, city and county, or district in the 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.

AB 282 (Cook, Chapter 360, Statutes of 2007) makes it an infraction for a person to, orally, in writing, or by wearing any military decoration, as defined, falsely represent oneself to have been awarded any decoration, with the intent to defraud.

AB 787 (DeVore, Chapter 457, Statutes of 2005) provides that any person, who falsely claims, represents or presents oneself to be a veteran or member of the armed forces of the United States (U.S.) with the intent to defraud, is guilty of a misdemeanor. Exempts face-to-face solicitations involving less than $10.

POSITIONS

Co-Sponsors:

American G.I Forum of California

AMVETS-Department of California

Support:

American G.I. Forum of California

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

San Diego Military Advisory Council

Vietnam Veterans of America-California State Council

Oppose: None received.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: AB 153 Hearing Date: June 6, 2017

Subject: Military Fraud

HISTORY

Source: American G.I. Forum of California

AMVETS- Department of California

Prior Legislation: AB 1706 (Chavez) 2015-2016 Legislative Session, held in Senate Appropriations

AB 167 (Cook) Ch. 69, Stats. of 2011

AB 1829 (Cook), Ch. 366, Stats. of 2010

AB 265 (Cook) Ch. 93, Stats. of 2009

SB 1482 (Correa) Ch. 118, Stats. of 2008

AB 282 (Cook) Ch. 360, Stats. of 2007

AB 787 (DeVore) Ch. 457, Stats. of 2005

Support: 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; San Diego Military Advisory Council; Vietnam Veterans of America, California State Council

Opposition: None known

Assembly Floor Vote: 74 - 0

PURPOSE

The purpose of this bill is to modify the language of the California Stolen Valor Act to conform to the federal Stolen Valor Act of 2013.

Existing federal law provides 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 shall be fined under this title, imprisoned not more than one year, or both.” (18 U.S.C. § 704 subd. (b).)

Existing law provides that an 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 pursuant to the federal Stolen Valor Act of 2005 or the California Stolen Valor Act, as specified. (Gov. Code § 3003.)

Existing law provides that it is a misdemeanor for any person to:

• 1. Falsely represent himself or herself as a veteran or ex-serviceman of any war in which the United States was engaged, in connection with the soliciting of aid or the sale or attempted sale of any property. (Pen. Code § 532b subd. (a).)
     
  2. Falsely claim, or present himself or herself, to be a veteran or member of the Armed Forces of the United States, with the intent to defraud. (Pen. Code § 532b subd. (b).)
     
  3. Orally, in writing, or by wearing any military decoration, falsely represents himself or herself to have been awarded any military decoration, with the intent to defraud. If the person is a veteran of the Armed Forces of the U.S., he or she is guilty of either an infraction or a misdemeanor. (Pen. Code § 532b subd. (c)(1) & (2).)
     

Existing law defines military decoration 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 service medals or badges awarded to the members of those forces, or the ribbon, button, or rosette of that badge, decoration, or medal, or any colorable imitation of that item.” (Pen. Code § 532b subd. (c)(3).)

Existing law provides that this section does not apply to face-to-face solicitations involving less than ten dollars. (Pen. Code, § 532b subd. (d).)

This bill requires an officer to forfeit his or her office upon a conviction for a crime pursuant to the federal Stolen Valor Act of 2013 or California Stolen Valor Act that involves a fraudulent claim, made with the intent to obtain money, property, or other tangible benefit, that the person is a veteran or a member of the Armed Force of the United States.

This bill 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.”

This bill 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.”

This bill amends Penal Code section 532(b) to include the California National Guard, the State Military Reserve, the Naval Militia, the national guard of any other state, and any other reserve component of the Armed Forces of the United States in the list of service branches covered by the California Stolen Valor Act.

This bill creates the following misdemeanors for any person who:

• 1. Forges documentation reflecting the awarding of a military decoration that he or she has not received for the purposes of obtaining money, property, or receiving a tangible benefit;
  2. Knowingly, with the intent to impersonate and to deceive, for the purposes of obtaining money, property, or receiving a tangible benefit, 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;
     
  3. Knowingly utilizes falsified military identification for the purposes of obtaining money, property, or receiving a tangible benefit;
  4. Knowingly, with the intent to impersonate, for the purposes of promoting a business, charity, or endeavor, misrepresents himself or herself as a member 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
  5. 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, or the Naval Militia by wearing the uniform or military decoration authorized for use by the members or veterans of those forces.

This bill makes other conforming changes.

COMMENTS

1. Need for This Bill

According to the author:

AB 167 (2011) was based on the Federal Stolen Valor Act of 2005 and created the requirement to vacate an elected office when convicted of stolen valor crimes, which was later found to be unconstitutional and was replaced with the Federal Stolen Valor Act of 2013. There is now a need to conform state law to the updated federal law.

2. Background

California currently requires that an elected officer forfeit his or her 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 in response to the U.S. Supreme Court’s ruling that the 2005 act was unconstitutional. (See United States v. Alvarez (2012) 132 S.Ct. 2537, 2556 [183 L.Ed.2d 547].)

This bill updates the California Stolen Valor Act by requiring a conviction pursuant to the federal Stolen Valor Act of 2013 rather than the previous federal Stolen Valor Act of 2005. In addition, this bill creates new misdemeanors related to the California Stolen Valor Act and changes the intent requirement to mirror federal law.

3. First Amendment

The First Amendment of the U.S. Constitution prohibits Congress from passing laws prohibiting free speech. (U.S. Const., 1st Amend.) State action restricting free speech is likewise prohibited by the Due Process Clause of the Fourteenth Amendment. (First Nat. Bank of Boston v . Bellotti (1978) 435 U.S. 765, 779.) Not all speech is protected, but categories of unprotected speech are strictly limited. For example, obscenity, defamation, fraud, incitement, and speech integral to criminal conduct are unprotected categories of speech. (U.S. v. Stevens (2010) 559 U.S. 460, 468-469.) If speech does not fall into one of these well-defined categories, then that speech enjoys at least some level of First Amendment protection.

The threshold question in determining what level of protection to give speech is whether the regulation is content-based or content-neutral. (Madsen v. Women’s Health Center, Inc., (1994) 512 U.S. 763, 763-764.) Content-based restrictions on speech receive the strictest level of scrutiny. Therefore, a content-based restriction will only survive if the government has a compelling interest in regulating the speech and the restriction is the least restrictive means of regulating such speech. (McIntyre v. Elections Comm’n (1995) 514 U.S. 334, 346-47.) On the other hand, content-neutral speech is subject to the less restrictive intermediate scrutiny test, which only requires that the government have a legitimate interest and the means of regulating speech is narrowly tailored to achieve the government’s ends. In contrast to strict scrutiny, the means chosen need not be the least restrictive means. (Ward v. Rock Against Racism (1989) 491 U.S. 781, 798-800.)

The U.S. Supreme Court ruled on the speech implicated in this bill when it examined the federal Stolen Valor Act of 2005 in United States v. Alvarez, supra, 132 S.Ct. 2537. The relevant language of the Act 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.”

A plurality of the Court held that this provision was a restriction on content-based speech, and therefore subject to strict scrutiny. (Alvarez, supra, 132 S.Ct. at 2543.) Critical to the Court’s holding is that the statute prohibited false claims without any requirement of cognizable harm as a result of the false claims. The Court found that although the government’s interest is compelling, other means exist to achieve its ends without restricting protected speech. In particular, the Court held the combination of a database for medal recipients coupled with public condemnation would serve just as well to deter false claims regarding military service. (Alvarez, supra, at pp. 132 S.Ct. at pp. 2550-2551.) Because alternative means exist to address the government’s goal, the Court held the statutory provision unconstitutional. (Ibid.)

Two Justices concurred, but applied intermediate scrutiny because they found the false speech to be of limited value. (Alvarez, supra, 132 S.Ct. at p. 2552.) The false claims at issue here were easily verifiable, and therefore unlikely to aid in the debate of public issues which is the heart of the First Amendment’s speech protections. However, the Court still held the statutory provision unconstitutional because of its potential to chill protected speech. Critical to the concurring Justices was the lack of 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 holding in Alvarez. For example, the intent to cause some legally cognizable harm has been added. Notably, the Court specifically addressed the receipt of unearned benefits in Alvarez and stated that such restrictions are likely constitutional. This bill largely mirrors the language of the federal Act.

4. Argument in Support

The San Diego Military Advisory Council supports this bill stating:

…[T]he United States Supreme Court struck down the Federal Stolen Valor Act of 2005 stating that the action of claiming military service is protected under free speech. Therefore, the Federal Stolen Valor act of 2005 was found to be unconstitutional. Congress then passed the Federal Stolen Valor Act of 2013 with a focus on intent to make profit, obtain money, property, or obtaining something with/of tangible benefit or value.

SDMAC sends this letter to you to indicate its strong support and endorsement for Assembly Bill 153 which would conform California law to Federal law when stolen valor is used to gain “tangible benefit.”

-- END –

Date of Hearing: April 5, 2017

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 153

Author:(Chávez) – As Introduced Ver:January 11, 2017

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill adds to the list of misdemeanors punishable under the California Stolen Valor Act and updates the 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.

FISCAL EFFECT:

Minor nonreimbursable local costs for misdemeanor incarcerations, offset to a degree by fee revenue.

COMMENTS:

1. Background/Purpose: Currently, California law requires an elected officer to 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 states, “whoever, with intent to obtain money, property, or other tangible benefit, fraudulently holds oneself out to be a recipient of a decoration or medal shall be fined under this title, imprisoned not more than one year, or both. The federal Stolen Valor Act was updated in 2013 after the Supreme Court ruled it was unconstitutional in 2012.

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.

1. Support: According to the American G.I. Forum of California, “There have been numerous cases of Stolen Valor in California recently. It is an insult to the brave men and women who have served our country to have those who have not served or who have fabricated and/or enhanced their military service in order to obtain tangible benefits fraudulently.”
2. Prior Legislation:

AB 1706 (Chávez), of the 2015-2016 Legislative Session, was very similar to this bill; it was held in Senate Appropriations Committee.

Analysis Prepared by: Pedro Reyes / APPR. / 916 319-2081

Date of Hearing: March 21, 2017

ASSEMBLY COMMITTEE ON VETERANS AFFAIRS

Jacqui Irwin, Chair

ABPCA Bill Id:AB 153 (

Author:Chávez) – As Introduced Ver:January 11, 2017

SUBJECT: Military fraud

SUMMARY: Modifies the language of the California Stolen Valor Act to conform to the Stolen Valor Act of 2013. Specifically, this bill:

1. Requires an officer to forfeit their office under a conviction of the Stolen Valor Act of 2013 instead of the previous Stolen Valor Act of 2005.
   
2. Defines the intent for military fraud as “the intent to obtain money, property, or other tangible benefit.”
   
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.”
   
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.”
   
5. Includes the California National Guard, the State Military Reserve, the Naval Militia, the national guard of any other state, and any other reserve component of the Armed Forces of the United States in the list of service branches covered by the California Stolen Valor Act.
   
6. Creates the following misdemeanors for any person who:
   1. Forges documentation reflecting the awarding of a military decoration that he or she has not received for the purposes of obtaining money, property, or receiving a tangible benefit;
   2. Knowingly, with the intent to impersonate and to deceive, for the purposes of obtaining money, property, or receiving a tangible benefit, 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;
      
   3. Knowingly utilizes falsified military identification for the purposes of obtaining money, property, or receiving a tangible benefit, is guilty of a misdemeanor;
   4. Knowingly, with the intent to impersonate, for the purposes of promoting a business, charity, or endeavor, misrepresents himself or herself as a member 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
   5. 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, or the Naval Militia by wearing the uniform or military decoration authorized for use by the members or veterans of those forces.

EXISTING LAW:

1. Provides, under federal law, 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 shall be fined under this title, imprisoned not more than one year, or both. (18 U.S.C.A § 704)
   
2. States that an 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 pursuant to the federal Stolen Valor Act of 2005 or the California Stolen Valor Act, as specified (Gov. Code, § 3003.)
   
3. States that it is a misdemeanor for any person to:
   
   1. Falsely represent himself or herself as a veteran or ex-serviceman of any war in which the United States was engaged, in connection with the soliciting of aid or the sale or attempted sale of any property; (Pen. Code, § 532b, subd. (a).)
      
   2. Falsely claim, or present himself or herself, to be a veteran or member of the Armed Forces of the United States, with the intent to defraud; and(Pen. Code, § 532b, subd. (b).)
      
   3. Orally, in writing, or by wearing any military decoration, falsely represents himself or herself to have been awarded any military decoration, with the intent to defraud. If the person is an individual, he or she is guilty of either an infraction or a misdemeanor. (Pen. Code, § 532b, subd. (c)(1) & (2).)
      
4. Defines “military decoration” 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 service medals or badges awarded to the members of those forces, or the ribbon, button, or rosette of that badge, decoration, or medal, or any colorable imitation of that item.” (Pen. Code, § 532b, subd. (c)(3).)
5. States that this section does not apply to face-to-face solicitations involving less than ten dollars. (Pen. Code, § 532b, subd. (d).)

FISCAL EFFECT: A similar bill, AB 1706 (Chávez), of the 2015-2016 Legislative Session was found by the Assembly Appropriations Committee to have minor nonreimbursable local costs for incarceration, offset to a degree by fee revenue.

COMMENTS:

AB 167 (2011) created California law based on the Federal Stolen Valor Act of 2005 and created the requirement to vacate an elected office when convicted of stolen valor crimes. The Federal Stolen Valor Act was updated in 2013 in response to the Supreme Court’s ruling that the 2005 act was unconstitutional. (See United States v. Alvarez (2012) 132 S.Ct. 2537, 2556 [183 L.Ed.2d 547].) The current California law 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. This bill updates the California Stolen Valor Act by requiring a conviction pursuant to the federal Stolen Valor Act of 2013.

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.

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:

• 1. Misrepresenting oneself as a member or veteran of the Armed Forces by wearing a uniform or military decoration.
  2. Forging documentation reflecting the award of any military decoration a person has not received.
  3. Misrepresenting oneself as a member or veteran by wearing a uniform or military decoration.
  4. Using falsified military identification.
  5. 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 adds new misdemeanors to the California Stolen Valor Act and changes the intent requirement for a conviction under the Act to mirror federal law.

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.”

Prior Legislation:

• 1. AB 1706 (Chávez), of the 2015-2016 Legislative Session, would have modified the language of the California Stolen Valor Act to conform to the Stolen Valor Act of 2013, the same as this proposed bill. AB 1706 was held in Senate Appropriations Committee.
  2. 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.
  3. 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.
  4. SB 1482 (Correa), Chapter 118, Statutes of 2008, provides that an elected officer of a city, county, city and county, or district in the 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:

Support

American G.I. Forum of California (Sponsor)
AMVETS-Department of California (Sponsor)

American Legion – Department of California
California Association of County Veterans Services Officers
California State Commanders Veterans Council
Military Officers Association of America, California Council of Chapters

San Diego Military Advisory Council

Vietnam Veterans of America – California State Council

Opposition

None on File.

Analysis Prepared by: Jenny Callison /John Spangler V.A. / 916-319-3550

Date of Hearing: February 28, 2017

Consultant: Adam Smith

ASSEMBLY COMMITTEE ON

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:

Author:() – As Ver:January 11, 2017

SUMMARY: Modifies the language of the California Stolen Valor Act to conform to the Stolen Valor Act of 2013. Specifically, this bill:

1. Requires an officer to forfeit their office under a conviction of the Stolen Valor Act of 2013 instead of the previous Stolen Valor Act of 2005.
   
2. Defines the intent for military fraud as “the intent to obtain money, property, or other tangible benefit.”
   
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.”
   
4. Defines “tangible benefit” as “financial remuneration, an affect 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.”
   
5. Includes the California National Guard, the State Military Reserve, the Naval Militia, the national guard of any other state, and any other reserve component of the Armed Forces of the United States in the list of service branches covered by the California Stolen Valor Act.
   
6. Creates the following misdemeanors for any person who:
   1. Forges documentation reflecting the awarding of a military decoration that he or she has not received for the purposes of obtaining money, property, or receiving a tangible benefit;
   2. Knowingly, with the intent to impersonate and to deceive, for the purposes of obtaining money, property, or receiving a tangible benefit, 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;
      
   3. Knowingly utilizes falsified military identification for the purposes of obtaining money, property, or receiving a tangible benefit, is guilty of a misdemeanor;
   4. Knowingly, with the intent to impersonate, for the purposes of promoting a business, charity, or endeavor, misrepresents himself or herself as a member 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
   5. Knowingly, with the intent to gain and 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, or the Naval Militia by wearing the uniform or military decoration authorized for use by the members or veterans of those forces.

EXISTING LAW:

1. Provides, under federal law, 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 shall be fined under this title, imprisoned not more than one year, or both. (18 U.S.C.A § 704)
   
2. States that an 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 pursuant to the federal Stolen Valor Act of 2005 or the California Stolen Valor Act, as specified (Gov. Code, § 3003.)
   
3. States that it is a misdemeanor for any person to:
   
   1. Falsely represent himself or herself as a veteran or ex-serviceman of any war in which the United States was engaged, in connection with the soliciting of aid or the sale or attempted sale of any property; (Pen. Code, § 532b, subd. (a).)
      
   2. Falsely claim, or present himself or herself, to be a veteran or member of the Armed Forces of the United States, with the intent to defraud; and(Pen. Code, § 532b, subd. (b).)
      
   3. Orally, in writing, or by wearing any military decoration, falsely represents himself or herself to have been awarded any military decoration, with the intent to defraud. If the person is an individual, he or she is guilty of either an infraction or a misdemeanor. (Pen. Code, § 532b, subd. (c)(1) & (2).)
      
4. Defines “military decoration” 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 service medals or badges awarded to the members of those forces, or the ribbon, button, or rosette of that badge, decoration, or medal, or any colorable imitation of that item.” (Pen. Code, § 532b, subd. (c)(3).)
   
5. States that this section does not apply to face-to-face solicitations involving less than ten dollars. (Pen. Code, § 532b, subd. (d).)
   

FISCAL EFFECT: Unknown.

COMMENTS:

1. 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.”
2. Background: California currently 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 in response to the Supreme Court’s ruling that the 2005 act was unconstitutional. (See United States v. Alvarez (2012) 132 S.Ct. 2537, 2556 [183 L.Ed.2d 547].) This bill updates the California Stolen Valor Act by requiring a conviction pursuant to the federal Stolen Valor Act of 2013.

In addition, this bill adds new misdemeanors to the California Stolen Valor Act and changes the intent requirement for a conviction under the Act to mirror federal law.

1. First Amendment: The First Amendment of the United States Constitution prohibits Congress from passing laws prohibiting free speech. (U.S. Const., 1st Amend.) State action restricting free speech is likewise prohibited by the Due Process Clause of the Fourteenth Amendment. (First Nat. Bank of Boston b. Bellotti (1978) 435 U.S. 765, 779.) Not all speech is protected but categories of unprotected speech should be well-defined and narrowly limited. For example, obscenity, defamation, fraud, incitement, and speech integral to criminal conduct are unprotected categories of speech. (U.S. v. Stevens (2010) 559 U.S. 460, 468-469.) If speech does not fall into one of these well-defined categories, then that speech enjoys at least some level of First Amendment protection.

To determine what level of protection certain speech is given, a court must first determine whether the speech is content-based or content-neutral. (Madsen v. Women’s Health Center, Inc., (1994) 512 U.S. 763, 763-764.) Content-based restrictions on speech receive the strictest level of scrutiny. Therefore, a content-based restriction will only survive if the government has a compelling interest in regulating the speech and the restriction is the least restrictive means of regulating such speech. (McIntyre v. Elections Comm’n (1995) 514 U.S. 334, 346-47.) On the other hand, content-neutral speech is subject to the less restrictive intermediate scrutiny test, which only requires that the government have a legitimate interest and the means of regulating speech is narrowly tailored to achieve the government’s ends. In contrast to strict scrutiny, the means chosen need not be the least restrictive means. (Ward v. Rock Against Racism (1989) 491 U.S. 781, 798-800.)

The Supreme Court has ruled on the speech implicated in this bill when it examined the federal Stolen Valor Act of 2005 in the case of United States v. Alvarez, supra, 132 S.Ct. 2537. The relevant language of the Act 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.”

The plurality held this provision content-based and therefore subject to strict scrutiny. (Alvarez, supra, 132 S.Ct. at p. 2543.) Critical to their holding is that the statute prohibited false claims without any requirement of cognizable harm as a result of the false claims. The plurality stated that the government’s interest is compelling, but that other means exist to achieve their ends without restricting protected speech. In particular, the Court held the combination of a database for medal recipients coupled with public condemnation would serve just as well to deter false claims regarding military service. (Alvarez, supra, at pp. 132 S.Ct. at pp. 2550-2551.) Because alternative means exist to address the government’s ends, the Court held the statutory provision unconstitutional. (Ibid.)

The concurring Justices applied intermediate scrutiny because they found the false speech to be of limited value. (Alvarez, supra, 132 S.Ct. at p. 2552.) The false claims at issue here were easily verifiable, and therefore unlikely to aid in the debate of public issues which is the heart of the First Amendment’s speech protections. However, the Court still held the statutory provision unconstitutional because of its potential to chill protected speech. Critical to the concurring Justices was the lack of 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 dissent would have upheld the statute as constitutional. (Alvarez, supra, 132 S.Ct. at p. 2557.)

The language of the federal Stolen Valor Act has since been amended to reflect the Court’s interpretation. The intent to cause some legally cognizable harm has been added. As of now, there has not been a challenge to the federal Act. Moreover, the Court specifically addressed the receipt of unearned benefits and the impacting of judicial proceedings in its holding in Alvarez and stated that such restrictions are likely constitutional. This bill’s language largely mirrors the language of the federal Act.

1. Argument in Support: According to the American G.I. Forum of California, “There have been numerous cases of Stolen Valor in California recently. It is an insult to the brave men and women who have served our country to have those who have not served or who have fabricated and/or enhanced their military service in order to obtain tangible benefits fraudulently.”
2. Prior Legislation:
   1. AB 1706 (Chávez), of the 2015-2016 Legislative Session, would have modified the language of the California Stolen Valor Act to conform to the Stolen Valor Act of 2013, the same as this proposed bill. AB 1706 was held in Senate Appropriations Committee.
   2. 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.
   3. 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.
   4. SB 1482 (Correa), Chapter 118, Statutes of 2008, provides that an elected officer of a city, county, city and county, or district in the 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:

Support

American G.I. Forum of California
American Legion – Department of California
AMVETS-Department of California
California Association of County Veterans Services Officers
California State Commanders Veterans Council
Military Officers Association of America, California Council of Chapters

Veterans of Foreign Wars
Vietnam Veterans of America – California State Council

Opposition

None

Analysis Prepared by: