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 requires the bias motivation to be a cause in fact of the offense, whether or not other causes also exist.

This bill would specify that discriminatory selection of a victim because of a protected characteristic is a type of bias motivation for purposes of determining whether the crime was committed, in whole or in part, because of the protected characteristic. By expanding the definition of a crime, this bill would impose a state-mandated local program.

Existing law requires law enforcement to adopt a hate crimes policy, by July 1, 2024, that includes information on bias motivation. For this purpose, existing law defines bias motivation to include, among other things, hatred, discriminatory selection of victims, animosity, or resentment.

This bill would remove the requirement that law enforcement adopt a policy that includes information on discriminatory selection of victims.

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.

Date of Hearing: April 23, 2024

Counsel: Liah Burnley

ASSEMBLY COMMITTEE ON

Kevin McCarty, Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY: Changes the definition of “in whole or in part because of,” as the term relates to hate crimes, to mean that the bias motivation of the offense may include discriminatory selection of a victim based on a protected characteristic.

EXISTING LAW:

1. Defines “Hate crime” as a criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim:
   
   1. Disability;
   2. Gender;
   3. Nationality;
   4. Race or ethnicity;
   5. Religion; or,
   6. Sexual orientation; or,
   7. Association with a person or group with one or more of these actual or perceived characteristics. (Pen. Code, § 422.55, subd. (a).)

1. Defines “in whole or in part because of” as 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. There is no requirement that the bias be a main factor, or that the crime would not have been committed but for the actual or perceived characteristic. (Pen. Code, § 422.56, subd. (d).)
   
2. Requires all state and local law enforcement agencies to adopt a hate crimes policy that shall include, among other things, the above-listed definitions and information regarding “bias motivation.” (Pen. Code, § 422.87, subd. (a).)

1. Provides, for the purposes of law enforcement hate crime policies, that “bias motivation” is a preexisting negative attitude toward actual or perceived characteristics listed above. Depending on the circumstances of each case, “bias motivation” may include, but is not limited to, hatred, animosity, discriminatory selection of victims, resentment, revulsion, contempt, unreasonable fear, paranoia, callousness, thrill-seeking, desire for social dominance, desire for social bonding with those of one’s “own kind,” 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. (Pen. Code, § 422.87, subd. (a)(3)(B).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “Consistently, we are seeing these attacks rooted in racism and xenophobia against the AAPI community. Action has to be taken to protect our communities. I am proud to author this bill as chair of the AAPI Legislative Caucus as we work to protect the AAPI community from these hate crimes.”
   
2. Effect of This Bill: To be convicted of a hate crime, a defendant must intend to interfere with another person’s constitutional rights and act “in whole or in part” because of the other person’s actual or perceived protected characteristic. (CALCRIM 1355; Pen. Code, § 422.7.) Under existing law, a defendant acts in whole or in part because of the actual or perceived characteristics of the other person if the defendant was biased against the other person based on their actual or perceived characteristic AND the bias motivation caused the defendant to commit the alleged acts. (Ibid.) If a defendant had more than one reason to commit the alleged acts, the bias motivation must have been a substantial motivating factor. (Ibid.) This bill would change the definition of “in whole or in part” to include “discriminatory selection of a victim.” In other words, this bill would make discriminatory selection of a victim part of the motivation needed to prove that a crime is a hate crime. For example, a defendant could be charged with a hate crime for simply choosing a victim with a protected characteristic, even if they were motivated by opportunity and not hate. In so doing, this bill could turn any crime committed against a person with a protected characteristic a hate crime.
   
   Selection of the victim because of one or more of the protected characteristics is already inherent in the crime. For example, in People v. Superior Court (Aishman), (1995) 10 Cal.4th 735, 738, the Supreme Court noted that “As evidence of a bias motivation in the selection of the victims, the People relied on various [racist] statements purportedly made by [the defendants].” Penal Code section 422.56, subdivision (d) expressly states This subdivision is declaratory of, existing law under People v. Superior Court (Aishman) (1995) 10 Cal.4th 735, 738.
3. Hate Crimes: Hate crimes severely impact victims. The emotional effect can be significant, with victims experiencing more psychological distress than victims of other violent crimes. Experts have observed that “[e]xperiences of hate are associated with poor emotional well-being such as feelings of anger, shame, and fear. Moreover, victims tend to experience poor mental health, including depression, anxiety, posttraumatic stress, and suicidal behavior.”^[1] The physical health of victims also suffers. The “impacts include poor overall physical health, physical injury, stress, and difficulty accessing medical care.”^[2]
   
   Hate crimes also impact the victim’s community. According to the California State Auditor, “these crimes likely had a significant impact on the groups to which victims belonged… [by] communicat[ing] to members of the victims’ groups that they are unwelcome and unsafe in their communities.”^[3] Indeed, “Entire communities can feel the impacts of victimization. Members of the targeted community may experience vicarious trauma symptoms resulting from witnessing others being victimized. In addition, a review of structural discrimination shows that for a targeted vulnerable group, long-standing, systemic inequalities can be seen in economic, housing, and educational disparities.”^[4]
   
   Although hate crimes make a small percentage of total reported crimes, the number of reported hate crimes in California has increased. In 2020, the Department of Justice (DOJ) reported hate crime events increased 31.0% from 1,015 in 2019 to 1,330 in 2020. The report also found hate crime offenses increased 23.9%from 1,261 in 2019 to 1,563 in 2020.^[5] According to DOJ’s 2021 report on hate crimes, “hate crime events” reported to law enforcement “increased 32.6% from 1,330 in 2020 to 1,763 in 2021,” and “hate crime offense increased 42.1% from 1,563 in 2020 to 2,221 in 2021.”^[6] Specifically, the DOJ found that “[v]iolent [hate] crime offenses increased 47.4%from 1,088 in 2020 to 1,604 in 2021.”^[7]
   

A 2018 report by the California State Auditor found that law enforcement had not taken sufficient action to identify, report, and respond to hate crimes. According to the report, “Officers at…law enforcement agencies might have been better equipped to identify hate crimes if their agencies had implement better methods for doing so and provided periodic training.”^[8]It added, “At local law enforcement agencies we reviewed, a lack of hate crime training and protocols, in addition to little proactive guidance and oversight from DOJ, have contributed to the underreporting of hate crimes.”^[9]

1. Argument in Support: According to The Arc & United Cerebral Palsy California Collaborative, “Inflammatory political rhetoric beginning in 2015 concerning immigration, the COVID pandemic and LGBTQ rights and, more recently, also due to the Israel-Hamas war and other conflicts in countries and regions abroad have led to the continuing crime wave of hate crimes in California and the United States. These crimes are being committed both by hate groups that have seized these opportunities and by individuals whose biases have been aroused. This surge and, at least in California, some significant improvements in reporting brought about by several important bills and state and federal leadership have been reflected in official statistics, but hate crimes remain grossly under-reported. Anti-disability hate crimes in particular remain the invisible hate crimes.
   
   “One reason for this appalling under-reporting is that the law is unclear that crimes committed because of the selective targeting of victims due to the seven protected characteristics may constitute hate crimes depending on the evidence in each case. Examples include when a criminal commits repeated crimes against victims with a particular protected characteristic, ignoring other equally available and vulnerable potential victims. This legal oversight is despite AB 57 (Gabriel) of 2021 that made discriminatory selection an indicator of suspected hate crimes.
   
   “AB 2604 corrects this by clearly establishing that discriminatory selection of victims may constitute bias motivation, making the crimes hate crimes.”
   
2. Argument in Opposition: According to the California Public Defenders Association (CPDA), “The phrase in that definition, “[committed] in whole or in part because of” is explained in “Penal Code section 422.56, subdivision (d), which currently reads “ ‘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. . . .”

“AB 2604, section 1, amends that explanation to read, “ ‘In whole or in part because of’ means that the bias motivation, which may include discriminatory selection of a victim because of a protected characteristic referenced in Section 422.55, must be a cause in fact of the offense, whether or not other causes also exist.”

“While well-intentioned, AB 2604 is bad public policy because it is unnecessary, duplicative of existing law and overbroad. […]

“By including “discriminatory selection of a victim” with any of the following characteristics: disability, gender, nationality, race or ethnicity, religion, and sexual orientation, in application AB 2604 would mean longer sentences and hate crime enhancements for conduct that does not have the requisite hate or animus. In other words, any crime against someone in the protected groups could be labeled a hate crime regardless of someone’s motivation.

“Examples include a purse snatching of someone with limited English language proficiency, stealing a wheelchair, or stealing from a wheelchair accessible van.

“Ultimately, AB 2604 could result in a blanket one-year enhancement on many offenses that fall outside of what the law has defined as “hate crimes.”

“Historically, all criminal laws, including hate crime legislation such as AB 2604, have been disproportionately weaponized against Black people.

“Most of the people convicted for hate crimes are the people that hate crime legislation allegedly protects: Black people, poor people, disabled people, queer and trans people.” In 2019, though Black people make up about 13 percent of the U.S. population, they were accused of nearly 24 percent of hate crimes by law enforcement. […]

“AB 2604 does not fill any “gap” in the penal code. If an individual commits a robbery, regardless of whether it’s a hate crime or not, and receives a conviction, they will face criminal legal system consequences.”

1. Related Legislation: AB 3231 (Villapudua) would define felony hate crimes as a violent felony. AB 3231 is pending in this Committee.
   
2. Prior Legislation:
   
   1. AB 1064 (Low), of the 2023-2024 Legislative Session, was substantially similar to this bill. AB 1064 was held under submission Assembly Appropriations Committee.
      
   2. AB 57 (Gabriel) Chapter 691, Statutes of 2021, requires any local law enforcement agency that adopts or updates a hate crime policy to include specified information on recognizing religion-bias hate crimes, and would require those policies to include the discriminatory selection of victims as a form of bias motivation.
      
   3. AB 1947 (Ting), of the 2021-2022 Legislative Session, would have required each local law enforcement agency to adopt a hate crimes policy and requires the POST to develop a model hate crimes policy. AB 1947 was held on the Senate inactive file.
      
   4. AB 485 (Nguyen), Chapter 852, Statutes of 2022, requires local law enforcement agencies to post information relative to hate crimes on their internet websites on a monthly basis.
      
   5. AB 2282 (Bauer-Kahan), Chapter 397, Statutes of 2022, expanded existing hate crimes offenses to include specified conduct on the premises of public properties and increase the associated fines imposed for committing such offenses.
      
   6. AB 300 (Chu), of the 2019-2020 Legislative Session, would have required a law enforcement agency to indicate in an incident report if the underlying incident is a “hate crime” or “hate incident.” AB 300 was held in Senate Appropriations Committee.
      
   7. AB 301 (Chu), of the 2019-2020 Legislative Session, would have required the DOJ to carry out various duties related to documenting and responding to hate crimes. AB 301 was held in Assembly Appropriations Committee.
      

REGISTERED SUPPORT / OPPOSITION:

Support

Asian Law Alliance
California Church Impact
California District Attorneys Association
California Lulac State Organization
Hindu American Foundation, INC.
Japanese American Citizens League - San Jose Chapter
Sikh American Legal Defense and Education Fund (SALDEF)
The Arc and United Cerebral Palsy California Collaboration

Oppose

Buen Vecino
California Coalition for Women Prisoners
California Public Defenders Association
Californians United for A Responsible Budget
Communities United for Restorative Youth Justice (CURYJ)
Felony Murder Elimination Project
Legal Services for Prisoners With Children
San Francisco Public Defender
Silicon Valley De-bug
Team Justice
Uncommon Law
Young Women's Freedom Center

Analysis Prepared by:

1. Cramer et al., Hate-Motivated Behavior: Impacts, Risk Factors, and Interventions, Health Affairs (Nov. 9, 2020) <https://www.healthaffairs.org/do/10.1377/hpb20200929.601434/>. ↑

2. Ibid. ↑

3. California State Auditor, supra, at p. 11; see e.g., Brown et al., How hate crime affects a whole community, BBC (Jan. 12, 2018) <https://www.bbc.com/news/uk-42622767>. ↑

4. Cramer et al., supra. ↑

5. DOJ, Hate Crime in California 2020. Available at: <https://data‌-openjustice.doj‌‌.ca.gov/sites/‌default/files/2021-06/Hate%20Crime%20In%20CA%202020.pdf>. ↑

6. DOJ, Hate Crime in California 2021. Available at: <https://oag.ca.gov/system/files/attachments/press-docs/Hate Crime In CA 2021 FINAL.pdf. ↑

7. Ibid. ↑

8. California State Auditor, Hate Crimes in California (May 2018) https://www.auditor.ca.gov/pdfs/reports/2017-131.pdf. ↑

9. Id. at 26. ↑