AB 3231: Violent felonies: hate crimes.
- Session Year: 2023-2024
- House: Assembly
- Latest Version Date: 2024-02-16
Current Status:
Failed
(2024-04-23: In committee: Hearing postponed by committee.)
Introduced
In Committee
First Chamber
In Committee
Second Chamber
Enacted
Existing law classifies certain felonies as violent felonies for purposes of various provisions of the Penal Code. Existing law imposes an additional one-year term for a sexually violent felony and a 3-year term for a violent felony for each prior separate prison term served for a violent felony.
This bill would additionally define felony hate crimes as a violent felony, as specified. By increasing the punishment for a crime, 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.
Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows:
(a)If one of the new offenses is one of the violent felonies specified in subdivision (c), in addition to and consecutive to any other prison terms therefor, the court shall impose a three-year term for each prior separate prison term served by the defendant when if the prior offense was one of the violent felonies specified in subdivision (c). However, an additional term shall not be imposed under this subdivision for any a prison term served prior to a period of 10 years in which the defendant remained free of both prison custody and the commission of an offense that results in a felony conviction.
(b)Except when if subdivision (a) applies, if the new offense is any a felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense offense, as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code, provided that an additional term shall not be imposed under this subdivision for any a prison term served prior to a period of five years in which the defendant remained free of both the commission of an offense that results in a felony conviction, conviction and prison custody or the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or any a felony sentence that is not suspended.
(c)The Legislature finds and declares that the following specified crimes merit special consideration when imposing a sentence to display societys condemnation for these extraordinary crimes of violence against the person. For the purpose of this section, violent felony means any of the following:
(1)Murder or voluntary manslaughter.
(2)Mayhem.
(3)Rape as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of former Section 262.
(4)Sodomy as defined in subdivision (c) or (d) of Section 286.
(5)Oral copulation as defined in subdivision (c) or (d) of Section 287 or of former Section 288a.
(6)Lewd or lascivious act as defined in subdivision (a) or (b) of Section 288.
(7)Any A felony punishable by death or imprisonment in the state prison for life.
(8)Any A felony in which the defendant inflicts great bodily injury on a person other than an accomplice, which accomplice that has been charged and proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or after July 1, 1977, or as specified prior to July 1, 1977, in Sections 213, 264, and 461, or any a felony in which the defendant uses a firearm which use that has been charged and proved as provided in subdivision (a) of Section 12022.3, 12022.3 or Section 12022.5 or 12022.55.
(9)Any robbery. Robbery.
(10)Arson, Arson in violation of subdivision (a) or (b) of Section 451.
(11)Sexual penetration as defined in subdivision (a) or (j) of Section 289.
(12)Attempted murder.
(13)A violation of Section 18745, 18750, or 18755.
(14)Kidnapping.
(15)Assault with the intent to commit a specified felony, felony in violation of Section 220.
(16)Continuous sexual abuse of a child, child in violation of Section 288.5.
(17)Carjacking, Carjacking as defined in subdivision (a) of Section 215.
(18)Rape or sexual penetration, in concert, in violation of Section 264.1.
(19)Extortion, as defined in Section 518, which that would constitute a felony violation of Section 186.22.
(20)Threats to victims or witnesses, as defined in Section 136.1, which that would constitute a felony violation of Section 186.22.
(21)Any burglary Burglary of the first degree, as defined in subdivision (a) of Section 460, wherein if it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.
(22)Any A violation of Section 12022.53.
(23)A violation of subdivision (b) or (c) of Section 11418.
(24)A felony violation of Section 422.7 or a felony for which an additional term was imposed pursuant to Section 422.75.
(d)For the purposes of this section, the defendant shall be deemed to remain in prison custody for an offense until the official discharge from custody, including any a period of mandatory supervision, or until release on parole or postrelease community supervision, whichever first occurs, including any time during which the defendant remains subject to reimprisonment or custody in county jail for escape from custody or is reimprisoned on revocation of parole or postrelease community supervision. The additional penalties provided for prior prison terms shall not be imposed unless they are charged and admitted or found true in the action for the new offense.
(e)The additional penalties provided for prior prison terms shall not be imposed for any a felony for which the defendant did not serve a prior separate term in state prison or in county jail under subdivision (h) of Section 1170.
(f)A prior conviction of a felony shall include a conviction in another jurisdiction for an offense which, that, if committed in California, is punishable by imprisonment in the state prison or in county jail under subdivision (h) of Section 1170 if the defendant served one year or more in prison for the offense in the other jurisdiction. A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense that includes all of the elements of the particular felony as defined under California law if the defendant served one year or more in prison for the offense in the other jurisdiction.
(g)A prior separate prison term for the purposes of this section shall mean a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes, including any reimprisonment on revocation of parole that is not accompanied by a new commitment to prison, and including any reimprisonment after an escape from incarceration.
(h)Serving a prison term includes any confinement time in any a state prison or federal penal institution as punishment for commission of an offense, including confinement in a hospital or other institution or facility credited as service of prison time in the jurisdiction of the confinement.
(i)For the purposes of this section, a commitment to the State Department of Mental Health, or its successor the State Department of State Hospitals, as a mentally disordered sex offender following a conviction of a felony, which commitment exceeds one year in duration, shall be deemed a prior prison term.
(j)For the purposes of this section, when if a person subject to the custody, control, and discipline of the Secretary of the Department of Corrections and Rehabilitation is incarcerated at a facility operated by the Division of Juvenile Justice, that incarceration shall be deemed to be a term served in state prison.
(k)(1)Notwithstanding subdivisions (d) and (g) or any other law, when one of the new offenses is committed while the defendant is temporarily removed from prison pursuant to Section 2690 or while the defendant is transferred to a community facility pursuant to Section 3416, 6253, or 6263, or while the defendant is on furlough pursuant to Section 6254, the defendant shall be subject to the full enhancements provided for in this section.
(2)This subdivision does not apply when if a full, separate, and consecutive term is imposed pursuant to any other law.
SEC. 2.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
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Date
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Status
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|---|---|
| Apr 23, 2024 | In committee: Hearing postponed by committee. |
| Mar 11, 2024 | Referred to Com. on PUB. S. |
| Feb 17, 2024 | From printer. May be heard in committee March 18. |
| Feb 16, 2024 | Read first time. To print. |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
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Organization
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Position
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Date
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|---|---|---|
| Aclu California Action | ** Against | |
| Arcadia Police Officers' Association | ** Support | |
| Asian Americans Advancing Justice - Asian Law Caucus | ** Against | |
| Association For Los Angeles Deputy Sheriffs | ** Support | |
| Bend the Arc California | ** Against | |
| Buen Vecino | ** Against | |
| Burbank Police Officers' Association | ** Support | |
| California Alliance for Youth and Community Justice | ** Against | |
| California District Attorneys Association | ** Support | |
| California Public Defenders Association | ** Against | |
| California Reserve Peace Officers Association | ** Support | |
| Californians United for a Responsible Budget | ** Against | |
| Children's Defense Fund - CA | ** Against | |
| CLAREMONT POLICE OFFICERS ASSOCIATION | ** Support | |
| Corona Police Officers Association | ** Support | |
| Culver City Police Officers' Association | ** Support | |
| Deputy Sheriffs Association of Monterey County | ** Support | |
| Ella Baker Center For Human Rights | ** Against | |
| Felony Murder Elimination Project | ** Against | |
| Friends Committee On Legislation Of California | ** Against | |
| Fullerton Police Officers' Association | ** Support | |
| Immigrant Legal Resource Center | ** Against | |
| Initiate Justice | ** Against | |
| Initiate Justice Action | ** Against | |
| LA Defensa | ** Against | |
| Legal Services for Prisoners with Children | ** Against | |
| Los Angeles School Police Management Association | ** Support | |
| Murrieta Police Officers' Association | ** Support | |
| Newport Beach Police Association | ** Support | |
| Novato Police Officers Association | ** Support | |
| Pacific Juvenile Defender Center | ** Against | |
| Palos Verdes Police Officers Association | ** Support | |
| Peace Officers Research Association Of California | ** Support | |
| Placer County Deputy Sheriffs' Assocation | ** Support | |
| Pomona Police Officers' Association | ** Support | |
| RIVERSIDE POLICE OFFICERS ASSOCIATION | ** Support | |
| Riverside Sheriffs' Association | ** Support | |
| San Francisco Public Defender | ** Against | |
| San Joaquin County District Attorney | ** Support | |
| Santa Ana Police Officers Association | ** Support | |
| Smart Justice California, a project of Tides Advocacy | ** Against | |
| south bay people power | ** Against | |
| Team Justice | ** Against | |
| Uncommon Law | ** Against | |
| Upland Police Officers Association | ** Support | |
| Vera Institute Of Justice | ** Against | |
| Young Women's Freedom Center | ** Against |
Date of Hearing: April 23, 2024
Counsel: Andrew Ironside
ASSEMBLY COMMITTEE ON
Kevin McCarty, Chair
ABPCA Bill Id:
Author:() – As Ver:
SUMMARY:
Adds felony hate crimes, or any felony in which a hate crime enhancement is imposed, to the list of violent felonies subject to additional penalties.
EXISTING LAW:
- Defines a “violent felony” as any of the following:
- Murder or voluntary manslaughter;
- Mayhem;
- Rape accomplished by means of force or threats of retaliation;
- Sodomy by force or fear of immediate bodily injury on the victim or another person or with a child under the age of 14 years, as specified;
- Oral copulation by force or fear of immediate bodily injury on the victim or another person or with a child under the age of 14 years, as specified;
- Lewd acts on a child under the age of 14 years, as defined;
- Any felony punishable by death or imprisonment in the state prison for life;
- Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice, or any felony in which the defendant has used a firearm, as specified;
- Any robbery;
- Arson of a structure, forest land, or property that causes great bodily injury or that causes an inhabited structure or property to burn;
- Arson that causes an inhabited structure or property to burn;
- Sexual penetration accomplished against the victim's will by means of force, menace or fear of immediate bodily injury on the victim or another person, by threats of retaliation, or of a child under the age of 14 years, as specified;
- Attempted murder;
- Explosion or attempted explosion of a destructive device with the intent to commit murder;
- Explosion or ignition of any destructive device or any explosive which causes bodily injury to any person;
- Explosion of a destructive device which causes death or great bodily injury;
- Kidnapping;
- Assault with intent to commit mayhem or specified sex offenses;
- Continuous sexual abuse of a child;
- Carjacking, as defined;
- Rape or sexual penetration in concert;
- Felony extortion;
- Threats to victims or witnesses, as specified;
- First degree burglary, as defined, where it is proved that another person other than an accomplice, was present in the residence during the burglary;
- Use of a firearm during the commission of specified crimes; and,
- Possession, development, production, and transfers of weapons of mass destruction. (Pen. Code § 667.5, subd. (c).)
- Murder or voluntary manslaughter;
- Provides that where the current offense is one of the specified violent felonies, in addition and consecutive to any other prison terms, the court must impose a three-year term for each prior separate prison term served by the defendant where the prior offense was one of the specified violent felonies. However, no additional term shall be imposed for any prison term served prior to a period of 10 years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction. (Pen. Code, § 667.5, subd. (a).)
- Provides that where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under realignment is imposed or is not suspended, in addition and consecutive to any other sentence, the court must impose a one-year term for each prior separate prison term for a sexually violent offense, as defined, provided that no additional term can be imposed for any prison term served prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody or the imposition of a term of jail custody imposed under realignment or any felony sentence that is not suspended. (Pen. Code, § 667.5, subd. (b).)
- Defines “hate crimes” as a criminal at committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim:
- Disability;
- Gender;
- Nationality;
- Race or ethnicity;
- Religion;
- Sexual orientation; and,
- Association with a person or group with one or more of these actual or perceived characteristics. (Pen. Code, § 422.55, subd. (a)(1)-(7).)
- Disability;
- Makes any other hate crime that is not punishable by imprisonment in the state prison a wobbler (punishable alternatively as a misdemeanor or county jail felony) 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 constitutional right under any of the following circumstances:
- The crime against the person either includes the present ability to commit a violent injury or causes actual physical injury;
- The crime against property causes damage in excess of $950; or,
- The person charged with a crime under this provision has been convicted previously of a hate crime or conspiracy to commit a hate crime, as specified. (Pen. Code, § 422.7.)
- Provides that a person who commits a felony that is a hate crime or attempts to commit a felony that is a hate crime, shall receive an additional term of one, two, or three years in the state prison, at the court’s discretion. (Pen. Code, § 422.75, subd. (a).)
- Provides that any person who commits a felony that is a hate crime, or attempts to commit a felony that is a hate crime, and who voluntarily acted in concert with another person, either personally or by aiding and abetting another person, shall receive an additional two, three, or four years in the state prison, at the court’s discretion. (Pen. Code, § 422.75, subd. (b).)
FISCAL EFFECT:
Unknown
COMMENTS:
- Author's Statement: According to the author, “Hate crimes have intentions deeply rooted in misguided hatred for somebody’s constitutional protections; those committing these crimes need ample time go through effective and necessary rehabilitation. By constituting that felony hate crimes are considered a violent felony, offenders will be limited in their access to early release. These malicious acts of hate have lasting impacts on a population that may deter them from fully participating and engaging in our society. We must reject this form of intimidation in full force.”
- Hate Crime Laws: Hate crimes, referred to in some jurisdictions as “bias crimes,” are generally defined as crimes that are “committed not out of animosity toward the victim as an individual, but out of hostility toward the group to which the victim belongs.” (Pendo, Recognizing Violence Against Women: Gender and the Hate Crimes Statistics Act (1994) 17 Harv. Women's L.J. 157, 159.)
According to Los Angeles County’s 2021 Hate Crime Report, the county had 786 reported hate crimes, a 23% increase from the prior year; hate crimes have been trending upwards since 2013. (https://hrc.lacounty.gov/stop-violence-2.) The executive director of the county’s Commission on Human Relations attributed part of the increase to having made it easier to report hate crimes in recent years. For example, the county launched its hate crimes reporting hot line in 2020. However, political polarization and violence likely also contributed to the uptick. (https://www.latimes.com/california/story/2022-12-07/hate-crimes-la-county.)
While the county’s report focuses on 2021, according to Los Angeles Police Department data analyzed by the Center for the Study of Hate and Extremism at Cal State San Bernardino, hate crimes in Los Angeles rose by 12% in the first 10 months of 2022 over the same period in 2021. Hate crimes targeting Black people rose 38% — to 168 from 122 — and anti-Jewish hate crimes went up 13%, to 80 from 71. (https://www.latimes.com/california/story/2022-12-07/hate-crimes-la-county.) - California’s Hate Crime Penalties: Under Penal Code section 422.55, a hate crime is defined as a criminal act committed because of the victim’s actual or perceived: disability, gender, nationality, race or ethnicity, religion, sexual orientation, or association with a person or group with one or more of these actual or perceived characteristics. These offenses can serve as a stand-alone crime (Pen. Code, § 422.6), as an aggravating factor (Pen. Code, § 422.7), or as a sentence enhancement (Pen. Code, § 422.75).
California has serious penalties directed at hate crimes. For felony hate crimes, sentence increases can range from two, three, or four years in state prison up to life without parole for first degree murder that is a hate crime.
- Three Strikes Implications: In general, violent felonies as specified in Penal Code section 667.5 are considered “strikes” for purposes of California’s Three Strikes law. However, Proposition 36, which was passed by California voters on November 6, 2012, specifies that only the crimes that were included in the “violent felonies” list as of November 7, 2012, shall be treated as strikes for purposes of the Three Strikes law.
Notwithstanding subdivision (h) of Section 667, for all offenses committed on or after November 7, 2012, all references to existing statutes in subdivisions (c) to (g), inclusive, of Section 667 (Three Strikes Law), are to those statutes as they existed on November 7, 2012.
(Pen. Code, § 667.1.)
This bill would not make felony hate crimes a “strike” under California law because the bill would not amend the date that defines the list of strikes to include the provisions of this bill.
- Proposition 57: In November 2016, California voters overwhelmingly approved Proposition 57. (Cal. Sect. of State, Statement of Vote Summary Pages (2016) p. 12; https://elections.cdn.sos.ca.gov/sov/2016-general/sov/06-sov-summary.pdf; https://www.cdcr.ca.gov/proposition57/ [as of November 30, 2021].) As relevant here, Proposition 57, authorized earlier parole consideration for people who are serving state prison terms for nonviolent offenses, and gave them more opportunities to earn sentence-reduction credits for good behavior.
(https://ballotpedia.org/California_Proposition_20,_Criminal_Sentencing,_Parole,_and_DNA_Collection_Initiative_(2020); see Cal. Const, Art. I, § 32.) For purposes of Proposition 57, violent offenses are those specified in Penal Code section 667.5, subdivision (c). (Cal. Code Regs., tit. 15, §§ 3490, subd. (c) & 3495, subd. (c).)
This bill would make all felony hate crimes violent offenses under Penal Code section 667.5, subdivision (c), and subject to a state prison term, including offenses otherwise punishable as a county jail felony. (Pen. Code, § 1170, subd. (h)(3).) This would be so even if the felony hate crime involved no actual physical violence or injury. (See e.g., Pen. Code, § 422.7, subd. (b) [property damage in excess of $950].)
As prison offenses, all felony hate crimes would be excluded from the CDCR’s nonviolent parole consideration process under Proposition 57. A defendant convicted of a felony hate crime would be excluded from this early parole regardless of whether they had also been convicted of a nonviolent felony. (In re Mohammad (2022) 12 Cal.5th 518.)
- Credit Limitations for Violent Felonies with State Prison Sentences: Under Penal Code section 2933.1, a defendant convicted of a violent felony as defined by Penal Code section 667.5, subdivision (c), has their presentence conduct credits limited to 15 percent of actual confinement time. (Cal. Code Regs., tit. 15, § 3043.1; People v. Brown (2012) 54 Cal.4th 314, 321.)
A violent felony conviction also affects post-sentence credits. As previously discussed, Proposition 57 gave incarcerated persons in state prison the ability to earn additional, nonstatutory credits for sustained good behavior and for approved rehabilitative or educational achievements. The increased credit-earning opportunities incentivizes incarcerated people to take responsibility for their own rehabilitation. (https://www.cdcr.ca.gov/proposition57/, supra.) Under CDCR regulations, a violent felony limits good conduct credits (GCC) to 33.3 percent of the total incarceration time, as opposed to 50 percent for a non-violent felony. (Ibid; 15 Cal. Code of Regs. § 3043.2.)
Additionally, under CDCR regulations, persons convicted of nonviolent crimes earn 66.6 percent GCC while housed in camp or Minimum Support Facility (MSF) settings. People convicted of violent crimes, however, earn 50 percent GCC in fire camp settings and 33.3 percent in MSF settings. (See (https://www.cdcr.ca.gov/proposition57/, supra.)
By adding all felony hate crimes to the list of violent felonies in Penal Code section 667.5, subdivision (c), these offenses would be subject to the violent felony credit limitations. Again, this would be so even if the felony hate crime involved no actual physical violence or injury. (See e.g., Pen. Code, § 422.7, subd. (b) [property damage in excess of $950].)
- Proposition 20: Proposition 20 was a ballot initiative of the November 2020 election which, among other things, would have defined 51 crimes and sentence enhancements as violent in order to exclude them from Proposition 57's nonviolent offender parole program. Hate crimes were on this list. Californians voters overwhelming rejected Proposition 20, by almost 62 percent. (https://ballotpedia.org/California_Proposition_20,_Criminal_Sentencing,_Parole,_and_DNA_Collection_Initiative_(2020), supra.) Arguably, this bill would ignore the will of the voters.
- Increased Penalties – Lack of Deterrent Effect: The National Institute of Justice (NIJ) has looked into the concept of improving public safety through increased penalties. (https://nij.ojp.gov/about-nij.) As early as 2016, the NIJ has been publishing its findings that increasing punishment for given offenses does little to deter criminals from engaging in that behavior. (“Five Things About Deterrence,” NIJ, May 2016, available at: https://www.ojp.gov/pdffiles1/nij/247350.pdf].) The NIJ has found that increasing penalties are generally ineffective and may exacerbate recidivism and actually reduce public safety. (Ibid.) These findings are consistent with other research from national institutions of renown. (See Travis, The Growth of Incarceration in the United States: Exploring Causes and Consequences, National Research Council of the National Academies of Sciences, Engineering, and Medicine, April 2014, at pp. 130 -150 available at: https://academicworks.cuny.edu/cgi/viewcontent.cgi?article=1026&context=jj_pubs, [as of Feb. 25, 2022].) Rather than penalty increases, the NIJ, advocates for polices that “increase the perception that criminals will be caught and punished” because such perception is a vastly more powerful deterrent than increasing the punishment. (“Five Things About Deterrence,” supra.)
- Prison Overcrowding: In January 2010, a three-judge panel issued a ruling ordering the State of California to reduce its prison population to 137.5% of design capacity because overcrowding was the primary reason that CDCR was unable to provide inmates with constitutionally adequate healthcare. (Coleman/Plata vs. Schwarzenegger (2010) No. Civ S-90-0520 LKK JFM P/NO. C01-1351 THE.) The United State Supreme Court upheld the decision, declaring that “without a reduction in overcrowding, there will be no efficacious remedy for the unconstitutional care of the sick and mentally ill” inmates in California’s prisons. (Brown v. Plata (2011) 131 S.Ct. 1910, 1939; 179 L.Ed.2d 969, 999.)
After continued litigation, on February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows: 143% of design bed capacity by June 30, 2014; 141.5% of design bed capacity by February 28, 2015; and, 137.5% of design bed capacity by February 28, 2016.
CDCR’s December 2022 quarterly report on the prison population notes that the state prison population is at 110.8% of design capacity. (https://www.cdcr.ca.gov/3-judge-court-update/ [as of January 31, 2023].)
While CDCR is currently in compliance with the three-judge panel’s order on the prison population, the state needs to maintain a “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14).)
Notably, Proposition 57 was a response to federal court orders requiring California to implement measures to reduce its prison population. (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) argument in favor of Prop. 57, p. 58.) This bill would create new violent felonies that are excluded from Proposition 57’s nonviolent parole process and impose limitations on sentence-reduction credits.
- Argument in Support: According to the Association for Los Angeles Deputy Sheriffs, “Existing law classifies certain felonies as violent felonies for purposes of various provisions of the Penal Code. Existing law imposes an additional one-year term for a sexually violent felony and a 3-year term for a violent felony for each prior separate prison term served for a violent felony.
“This bill would additionally define felony hate crimes as a violent felony.” - Argument in Opposition: According to the Ella Baker Center for Human Rights, “Hate crimes are a scourge on our democracy and the civil freedoms we cherish as Americans. We share in the author’s anger about the rising tide of hate crimes in our state and nationwide, which have in recent months and years disproportionately impacted the transgender community, Asian American and Pacific Islander (AAPI) communities, Palestinian and Arab Muslim communities, and Jewish communities. But we are steadfastly opposed to failed carceral approaches, especially ones that curtail the incentive for incarcerated people to invest in rehabilitation and education programming, which will undoubtedly lead to more prison overcrowding and lengthy sentences largely for Black and brown Californians. We must be focused on real solutions that prevent and respond to hate crimes such as community-based education, trauma services for survivors, expansion of restorative justice programming, and stronger labor and whistleblower protections.
“The commission of a hate crime can already carry steep penalties. Under Penal Code §422.6(a), which is the “stand-alone” hate crime provision, the penalty is up to one year in county jail and/or a $5,000 fine. Furthermore, there are also separate misdemeanor hate crime penalties under CPC §422.7, and felony hate crime penalties under CPC §422.75, which can carry up to a 3-year prison term and a fine of $10,000. This makes such crimes a wobbler, with additional enhancements possible depending on the degree of the crime.
“For example, depending on the context of the crime, prosecutors can tack on simple assault charges and simple battery charges, each of which carry an additional term of six months in county jail and $1,000 fines. If the hate crime was committed while disturbing a religious meeting, it can carry another 1 year jail sentence under CPC §302. Furthermore, if criminal threats were made in the commission of the hate crime, then a separate charge under CPC §422(a) can be brought, which carries up to an additional 3-year prison term and is also a strikeable offense under the Three Strikes Law.
“Indeed, we are also concerned by how AB 3231 may undermine the intent and efforts of the Commission on the State of Hate, established under AB 1126 (Bloom, Ch. 712, Stat. 2021). That law, which outlined the responsibilities of the Commission, also charged it with developing comprehensive policy recommendations towards reducing hate crimes. In fact, the Commission’s 2022-2023 Annual Report highlighted how “...the Commission is cognizant of the well-documented harms of incarceration and the criminal legal system, particularly for Black, Latin(x), and LGBTQ communities… As a result, the Commission will explore innovative practices for reducing recidivism, particularly non-carceral solutions.”
“AB 3231 will not support hate crime survivors - it is yet another ill-advised attempt at degrading Proposition 57 and the will of the majority of California voters who support rehabilitation. Under Proposition 57, someone with a violent felony conviction is limited to good conduct credits equaling 33.3% of their total sentence, as opposed to 50% for serious or other non-violent felonies (Tit. 15 Cal. Code of Regs. § 3043.2.). Proposition 57 is not a ‘get out of jail free’ card as opponents claim it be - instead, it is one of the most important investments into rehabilitation and education programming California has ever enacted. We should be incentivizing as many incarcerated people towards such programming as possible, not curtailing access.
“There is also mounting evidence that vulnerable communities do not report hate crimes to law enforcement to begin with for a variety of reasons including mistrust, prior negative encounters with police, and so forth. This is especially true for the LGBTQ+ community and communities of color. In fact, Bureau of Justice Statistics’ National Crime Victimization Survey (NCVS) data from 2011 to 2015 found that over half of hate crime victims didn’t report the incident because they believed ‘police would not want to be bothered or to get involved, would be inefficient or ineffective, or would cause trouble for the victim.’ It is unclear then, how AB 3231 would help provide a mechanism for addressing the needs of hate crime victims if those same victims do not feel safe reporting the incident in the first place.
“Furthermore, significant research has found that lengthy prison terms do not have a strong deterrent effect on future crime, especially compared to other deterrence tools such as the certainty of apprehension. Carceral approaches to addressing hate crimes will also exacerbate racial disparities in incarceration, as shown by the fact that in 2018, 45% of people arrested by the New York City Police Department for hate crimes were Black. We urge solutions. Namely, we recommend the following policies:
“1) Invest in Restorative Justice programming that helps survivors of hate crimes heal and holds perpetrators accountable
Restorative Justice programs are a time-tested practice rooted in Indigenous principles that provide safe and open spaces for victims to have their needs met and for perpetrators to both recognize and atone for the harm committed. Research shows greater satisfaction with the outcomes of Restorative Justice programming for victims.
“2) Support community-based Victim Advocate Programs that provide critical services to hate crime victims
Victim advocate programs can provide a variety of services, from navigating victim compensation applications to referrals for support services to accompanying people for court proceedings.
“3) Fund security improvements and targeted resources for vulnerable institutions
Recent hate crimes have targeted religious institutions, cultural events, and community centers, many of which often lack adequate security protocols. The Legislature can expand grant programs for these institutions to install security cameras, renovate facilities to expand emergency exits, hire unarmed security personnel, or other measures.
“4) Strengthen access to culturally competent mental health support services for both prevention of hate crimes and as treatment for survivors
Historically marginalized communities are both more likely to be victims of hate crimes and face challenges in accessing culturally appropriate mental healthcare and healing services. It is vital that lawmakers invest in linguistically and culturally appropriate mental health services to help hate crime victims heal from their trauma.” - Related Legislation:
- AB 2603 (Low), would expand the grounds upon which a search warrant may be issued to include when the property or things to be seized consist of evidence that tend to show that certain misdemeanor hate crimes have occurred or are occurring.
- AB 2604 (Low), would change 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.
- AB 2603 (Low), would expand the grounds upon which a search warrant may be issued to include when the property or things to be seized consist of evidence that tend to show that certain misdemeanor hate crimes have occurred or are occurring.
- Prior Legislation:
- AB 32 (S. Nguyen), of the 2023-2024 Legislative Session, would have added felony hate crimes to the list of violent felonies subject to enhanced penalties. AB 32 was never heard in this committee.
- AB 266 (Cooper), of the 2021-2022 Legislative Session, would have added felony hate crimes to the list of violent felonies subject to enhanced penalties. AB 266 failed passage in this committee.
- AB 786 (Kiley), of the 2019-2020 Legislative Session, would have added the crime of human trafficking, as specified, to the list of violent felonies and made it a “strike” under California's Three Strikes Law. AB 786 failed passage in this committee.
- AB 197 (Kiley), of the 2017-2018 Legislative Session, would have added several offenses to the list of violent felonies and specifies that they are “strikes” under California's Three-Strikes Law. AB 197 was never heard in this committee.
- AB 67 (Rodriguez), of the 2017-2018 Legislative Session, would have added human sex trafficking and specified sexual assault offenses to the list of violent. AB 67 was held on Suspense File in the Assembly Appropriations Committee.
- AB 27 (Melendez), of the 2017-2018 Legislative Session, would have added specified sexual assault offenses to the list of violent felonies codified in the Penal Code. AB 27 was held on Suspense File in the Assembly Appropriations Committee.
- SB 75 (Bates), of the 2017-2018 Legislative Session, would have added vehicular manslaughter, human trafficking involving a minor, assault with a deadly weapon, solicitation of murder, rape under various specified circumstances, and grand theft of a firearm as violent felonies for purposes of imposing specified sentence enhancements. SB 75 was held in the Senate Public Safety Committee.
- SB 652 (Nielsen), of the 2017-2018 Legislative Session, would have defined the unlawful possession of a firearm by a person previously convicted of a violent felony. SB 652 was held in the Senate Public Safety Committee.
- SB 770 (Glazier), of the 2017-2018 Legislative Session, would have added human trafficking, elder and dependent adult abuse, assault with a deadly weapon, rape under specified circumstances, discharge of a firearm at an occupied building, and specified crimes against peace officers and witnesses, as violent felonies. SB 770 was held in the Senate Public Safety Committee.
- SB 1269 (Galgiani), of the 2015-2016 Legislative Session, would have included human trafficking in the list of violent felonies, for which Three Strike sentencing, sentencing credit limits, enhancements for prior violent felony prison terms and other consequences apply. SB 1269 failed passage in the Senate Public Safety Committee.
- AB 32 (S. Nguyen), of the 2023-2024 Legislative Session, would have added felony hate crimes to the list of violent felonies subject to enhanced penalties. AB 32 was never heard in this committee.
REGISTERED SUPPORT / OPPOSITION:
Support
Arcadia Police Officers' Association
Association for Los Angeles Deputy Sheriffs
Burbank Police Officers' Association
California District Attorneys Association
California Reserve Peace Officers Association
Claremont Police Officers Association
Corona Police Officers Association
Culver City Police Officers' Association
Deputy Sheriffs' Association of Monterey County
Fullerton Police Officers' Association
Los Angeles School Police Management Association
Murrieta Police Officers' Association
Newport Beach Police Association
Novato Police Officers Association
Palos Verdes Police Officers Association
Peace Officers Research Association of California (PORAC)
Placer County Deputy Sheriffs' Assocation
Pomona Police Officers' Association
Riverside Police Officers Association
Riverside Sheriffs' Association
San Joaquin County District Attorney
Santa Ana Police Officers Association
Upland Police Officers Association
Oppose
ACLU California Action
Asian Americans Advancing Justice - Asian Law Caucus
Bend the Arc California
Buen Vecino
California Alliance for Youth and Community Justice
California Public Defenders Association
Californians United for A Responsible Budget
Children's Defense Fund - CA
Ella Baker Center for Human Rights
Felony Murder Elimination Project
Friends Committee on Legislation of California
Immigrant Legal Resource Center
Initiate Justice
Initiate Justice Action
LA Defensa
Legal Services for Prisoner With Children
Pacific Juvenile Defender Center
San Francisco Public Defender
Smart Justice California, a Project of Tides Advocacy
South Bay People Power
Team Justice
Uncommon Law
Vera Institute of Justice
Young Women's Freedom Center
Analysis Prepared by:
Bill Author
Bill Co-Author(s):