BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator Bruce McPherson, Chair A
2003-2004 Regular Session B
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AB 207 (Maze)
As Amended May 19, 2003
Hearing date: June 10, 2003
Penal Code
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VANDALISM OF VETERANS' MEMORIAL OR MONUMENT -
EQUIVALENT PENALTIES TO VANDALISM OF CEMETERY
HISTORY
Source: Author
Prior Legislation: AB 2580 (Cox) - Ch. 546, Stats. 2000
Support: California State Commanders Veterans Council; Imperial
County Veterans Service Officer; Inyo-Mono Counties
Veterans Service Officer; Peace Officers Research
Association of California; San Bernardino County
Department of Veterans Affairs; San Bernardino County
Sheriffs' Department; Stanislaus County Department of
Aging and Veterans Services; Tulare County Health and
Human Services Agency; Tulare County Sheriff-Coroner;
Military Officers Association of America; Madera
County Board of Supervisors; Visalia Chief of Police;
Sloughhouse Genealogical Society; Hopland Cemetery;
California Saving Graves; Orange County Veterans
Advisory Council; Napa County District Attorney;
Disabled Veterans of America; Humboldt County District
Attorney; Numerous Private Parties
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Opposition:American Civil Liberties Union
Assembly Floor Vote: Ayes 72 - Noes 0
KEY ISSUES
SHOULD VANDALISM OF A VETERANS' MEMORIAL OR MONUMENT BE AN ALTERNATE
FELONY MISDEMEANOR (WOBBLER), REGARDLESS OF THE DAMAGES CAUSED?
SHOULD THIS NEW WOBBLER BE CREATED BY EXPANDING THE REACH OF THE
CURRENT WOBBLER COVERING DAMAGE OR HARM TO A CEMETERY, GRAVE,
STATUARY OR ORNAMENTATION IN A CEMETERY, OR A CEMETERY/MORTUARY
INCLOSURE OR BUILDING, ETC?
PURPOSE
The purpose of this bill is to make vandalism of a veterans'
memorial an alternate felony-misdemeanor, regardless of the
amount of damages caused by the crime.
Existing law provides that any person who maliciously destroys
any property in a mortuary or cemetery, including any statuary
or inclosure of the grounds, shall be punished by imprisonment
in the state prison for 16 months, 2 or 3 years, or by
imprisonment in the county jail for up to one year. (Pen. Code
594.35.)
Existing law provides that any person who knowingly commits an
act of vandalism to a church, synagogue, or other place of
worship, or to a cemetery, is punishable by imprisonment in the
state prison for 16 months, 2 or 3 years, or by imprisonment in
the county jail not exceeding one year. (Pen. Code 594.3,
subd. (a).)
Existing law provides that any person who knowingly commits any
act of vandalism to a church, synagogue, or other place of
worship, or to a cemetery, which is shown to have been committed
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by reason of the race, color, religion, or national origin of
another individual for the purpose of intimidating and deterring
persons from freely exercising their religious beliefs shall be
punished by imprisonment in the state prison for 16 months, 2 or
3 years. (Pen. Code 594.3, subd. (b).)
Existing law provides that any person who maliciously destroys,
damages, or defaces the property of another is guilty of
vandalism, and is punishable as follows: Damages under $400:
1-year misdemeanor and/or up to $1,000 fine. Where the
defendant has been previously convicted of vandalism or a
graffiti crime, the fine may be up to $5,000. Damages of at
least $400: alternate felony-misdemeanor, with a fine of up to
$10,000. The fine may be up to $50,000 if the damages exceed
$10,000. (Pen. Code 594, subd. (b).)
Existing law provides that the sentencing court can order a
defendant convicted of graffiti style vandalism to repair or
replace the property; or the court can order the defendant to
keep the damaged property (or another property in the community)
free of graffiti for one year. (Pen. Code 594, subd. (c).)
Existing law provides that where a felony is committed because
of the victim's race, color, ethnic origin, nationality
religion, disability, sex or sexual orientation, the defendant
shall receive an enhancement of 1, 2, or 3 years. (Pen. Code
422.75.)
This bill extends the existing alternate felony-misdemeanor for
vandalism of a cemetery to any person who maliciously destroys,
mutilates, effaces, damages or otherwise injures or removes a
veterans' monument or memorial. This crime is punishable by
imprisonment in the state prison for 16 months, 2, or 3 years,
and a fine of up to $10,000, or by imprisonment in the county
jail for up to one year, a fine of up to $1,000, or both.
COMMENTS
1. Need for This Bill
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According to the author:
Americans have a tremendous ability to join together
when times are trying or our liberties are at stake.
The veterans of this country stand at the forefront of
honoring our past battles and remembering those who
died serving our country. For some there is no
greater fear than for someone to wear a uniform of
honor for the United States military and be forgotten
when returning from either a war or serving abroad
protecting others. This is why we have memorials and
remembrances for our veterans, to honor those who were
willing to give the greatest sacrifice, their own
life.
Many of us have been to veterans' memorials and there
is something riveting about those particular memorials
that makes a person proud to be an American and know
that someone fought for our ability to be where we are
today - a nation of freedom and liberty.
Nothing is more disgraceful than going to visit one of
these honored sites and seeing it vandalized. This
happened in my district at the cemetery in Exeter. In
the early part of February, ten headstones and
monuments were destroyed, including an American Legion
monument to unknown soldiers. These wretched acts
have occurred at numerous cemeteries throughout
California, and in the case of Exeter on more than one
occasion. This problem is getting out of control.
That is why I have introduced AB 207. Current law
states in Penal Code section 594.35 that "every person
is guilty of [a wobbler] ? who maliciously destroys
and part of a cemetery, grave ?" AB 207 adds the
destruction, mutilation, or other injury or removal of
a veterans' memorial or monument located any place in
the state of California to section 594.35
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We have a problem on our hands. By clearly and
succinctly stating vandalism to a veterans' memorial
will not be tolerated and will be punished to the
fullest extent of the law may be what we need to
curtail this disrespectful problem.
2. Concerns About Veterans' Cemeteries and Gravesites Appear to
be Addressed or Covered by Existing Alternate
Felony-Misdemeanor
Much of the author's statement expresses concerns and disgust
over defilement and vandalism of veterans' cemeteries and
gravesites. Many letters in support of the measure focus on the
vandalism of cemeteries and gravesites as well. For example,
the author gives an example of an incident in which "ten
headstones and monuments were destroyed, including an American
Legion monument to unknown soldiers." He further argues that
such crimes are "getting out of control" such that felony
penalties should be available.
However, existing law includes an alternate felony-misdemeanor
(wobbler) for such conduct. The existing law is rather broad.
As well as gravesites and tombs, the existing wobbler covers
"any monument, memorial, or marker in a cemetery, or any gate,
door, fence, wall, post or railing, or any inclosure for the
protection of a cemetery or mortuary or any property in a
cemetery or mortuary." (Pen. Code 594.35, subd. (a).) The
crime also encompasses damage etc. to "any building, statuary,
or ornamentation within the limits of a cemetery." (Pen. Code
594.35, subd. (c).)
A person who damages virtually any property on the grounds or
perimeter of a cemetery, including a veterans' memorial,
monument or statue, may be sentenced to prison under existing
law. Depending on the facts of the underlying incident or
incidents, multiple punishments could be imposed. Arguably, any
problem with increasing numbers of such incident stems from
difficulties with, or limited resources for, investigating and
prosecution of such incidents.
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Thus, the issue presented by this bill is not punishment for
damages to cemeteries and gravesites, but rather damage to
memorials and monuments apart from cemeteries. The extension of
existing law to non-cemetery grounds raises a number of issues
that are discussed below.
SINCE ALL CEMETERIES - INCLUDING VETERANS' CEMETERIES - AND
SINCE ANY MEMORIAL, STATUE OR BUILDING, ETC., IN ALL CEMETERIES,
ARE COVERED BY THE WOBBLER UNDER CURRENT LAW, IS THIS BILL
NECESSARY TO MEET THE STATED CONCERNS OF THIS BILL'S PROPONENTS?
3. Issue of What Constitutes a Veterans' Memorial or Monument
This bill applies the existing alternate felony-misdemeanor for
vandalism of a cemetery to vandalism of a veterans' memorial or
monument. The bill does not define a veteran's memorial or
monument.
There would perhaps be little doubt that the Vietnam Veterans'
Memorial in Capitol Park would be covered by this bill.
However, the terms "memorial" and "monument" have much wider
application than structures or sculptures to honor military
personnel killed in war. A memorial is defined by the American
Heritage Dictionary as "something, such as a monument or
holiday, designed or established to serve as a remembrance of a
person or event." The principal definition of a monument in the
American Heritage Dictionary is a structure "erected as a
monument." The secondary definitions of a monument are an
inscribed stone or marker at a gravesite and any structure or
area venerated or recognized for its enduring significance.
Under a broad interpretation of these terms, virtually any
military monument, statue, sculpture or tangible image could be
covered by this bill. It could be argued that statues of Robert
E. Lee and Ulysses S. Grant are veterans' memorials or
monuments. A tangible remembrance of the Spanish-American war
could be defined as a veterans' memorial.
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WHAT WOULD BE CONSIDERED A VETERANS' MEMORIAL OR MONUMENT UNDER
THIS BILL?
4. Veterans' Memorials or Monuments and Cemeteries - Issue of
Whether or Not Penalties Should be Equivalent
This bill makes the penalty for vandalism or damage of a
veterans' memorial or monument the same as that for vandalism or
damage of a cemetery. This raises issues as to whether a
veterans' memorial or monument and a cemetery serve equivalent
purposes.
? Cemeteries and Veterans' Memorials and Monuments - Purposes
Arguably, a cemetery can be considered a place of religious
worship and reverence. Burials are typically religious
ceremonies, often the last event in a funeral process. For
example, in a Roman Catholic death ritual, the decedent is given
"last rights" on his or her deathbed, a rosary prayer service is
held in a mortuary or at the church, a funeral mass is held at
the church, and finally, the body is committed to burial in a
final prayer service. A practicing Catholic is buried in
"consecrated ground." Similar rituals and services are observed
and held in other faiths. Many cemeteries are constituted or
organized by faith.
In contrast, when not part of a cemetery, veterans' memorials
and monuments arguably serve largely secular and patriotic
purposes. Veterans' memorials generally honor those who have
died in military service during times of war. In this country,
it appears that veterans' memorials and monuments are used to
honor living veterans as well.
It may be said that ceremonies at veterans' memorials and
monuments serve a secular purpose similar to religious
ceremonies. Nevertheless, the function of such memorials and
cemeteries can be distinguished. In the case of a veterans'
cemetery, there may be a substantial overlap of religious and
patriotic purposes. However, the enhanced penalties applicable
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to cemeteries would apply to a veterans' cemetery.
? Veterans' Memorials and Monuments - Controversial Designs,
Political Issues, Punishment under Existing Law
The design and placement of a veterans' memorial is often highly
controversial. In particular, the Vietnam Veterans' Memorial in
Washington D.C. was vilified by many when the design was
revealed. Many found the low, stark black granite form of the
monument to create a negative impression of the Vietnam War and
veterans of the conflict. The memorial was called by some "the
Black gash of Shame and Sorrow." Such attitudes may illustrate
an argument that veterans' memorials often honor or represent
the cause in which the veterans served, as well as the veterans
themselves. Many of those opposed to the Vietnam memorial
understood that the monument included a tacit criticism of the
war.
This bill would punish politically motivated conduct as harshly
as religious desecration. Such penalties might even be imposed
against veteran's groups. For example, a veteran of the Gulf
War suffering from "Gulf War Syndrome" could spray-paint a
slogan demanding that the government provide medical care for
veterans before erecting monuments. A Vietnam veteran, angry
because he believed the government deceived military personnel
and the public about that war, could express his anger by
writing accusations about alleged government deceit on the
grounds of a memorial.
? Existing Vandalism Crime: Wobbler if Damage is at least $400;
Special Clean-up and Protection Provisions; no Requirement
that Prosecutor Prove Nature of Property Damaged
Certainly, non-veterans could vandalize a memorial to express
enmity against the government in a way that would be anathema to
most citizens. Further, a person could damage a veterans'
memorial for other than political motives. However, such
conduct would be subject to prosecution under existing vandalism
laws.
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Existing vandalism crimes include a felony if the defendant
caused at least $400 in damage. Any non-trivial damage would
likely meet that threshold. Where the damage is less than $400,
it may be argued that such conduct, perhaps often politically
motivated, is not equivalent to religious desecration.
Where damage to a veterans' memorial or monument in a vandalism
incident is less than $400, the offense can be prosecuted as a
misdemeanor, with a jail term of up to one year, a fine of up to
$1,000, or both. Repeated misdemeanors subject a defendant to a
fine of up to $5,000. The court can order a defendant convicted
of misdemeanor vandalism "with graffiti or other inscribed
materials" to clean up, repair or replace the property. The
court can also order the defendant to keep the vandalized
property, or another property, free of graffiti for up to 1
year.
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The existing vandalism penalties do not require the prosecutor
to prove that the defendant damaged a particular kind of
property. Prosecutions under this bill could be complicated by
disputes as to what constitutes a monument or memorial.
ARE EXISTING VANDALISM LAWS - INCLUDING A FELONY FOR DAMAGE OF
AT LEAST $400 AND AUTHORIZATION FOR REQUIRING A DEFENDANT TO
REPAIR OR PROTECT DAMAGED PROPERTY - SUFFICIENT TO ALLOW
PROSECUTION AND PUNISHMENT OF DEFENDANTS WHO DAMAGE VETERANS'
MEMORIALS AND MONUMENTS NOT ON THE GROUNDS OF CEMETERIES?
5. Three Strikes Issues - Creation of New Felony Through
Expansion of Existing Wobbler for Vandalism of Cemeteries and
Cemetery Facilities and Grounds
This bill, by including vandalism of a veterans' memorial in the
existing alternate felony-misdemeanor of cemetery vandalism,
would essentially create a new felony. Creation of a new
felony, or expansion of an existing felony, increases the reach
of the Three Strikes law. Because of concerns as to the
expansion of this severe sentencing law, since 1994 a majority
of this Committee has been particularly reluctant to create or
expand a felony for non-violent conduct.
Three Strikes Law Summary
Under the Three Strikes law, a defendant with two prior serious
or violent felonies must receive a term of at least 25 years to
life in the sentence for the commission of any new felony,
including identity theft (an alternate felony/misdemeanor).
Where the defendant has a single prior serious or violent
felony, he or she shall receive a doubled term in the sentence
imposed upon conviction of any new felony.
Alternate Felony-Misdemeanors and Three Strikes
Where a defendant has been convicted of an alternate felony
misdemeanor that has been charged and prosecuted by the District
Attorney as a felony, the sentencing court has the discretion to
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deem the offense to be a misdemeanor pursuant to the decision of
the Court in People v. Superior Court (Alvarez) (1996) 14
Cal.4th 968 and Penal Code section 17, subdivision (b), unless
the court's action is arbitrary and contrary to substantial
justice.
Judicial Discretion to Dismiss a Strike is Strictly Limited
Where a defendant has been convicted of a straight felony, or
where the court has declined to deem a wobbler to be a
misdemeanor, the court's ability to ameliorate the severity of
the Three Strikes law is much more limited. A court has
discretion to dismiss one or more prior "strikes," but only
where the defendant's record and the current conviction
establish that the defendant should be treated as though he or
she does not fall under the terms of the Three Strikes law.
(People v. Superior Court (Romero) (1996) 13 Cal.4th
497-530-531; People v. Williams (1998) 17 Cal.4th 198.)
WOULD THIS BILL EXPAND THE THREE STRIKES LAW BY CREATING A NEW
FELONY FOR NON-VIOLENT CONDUCT?
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