Investigation and Prosecution of Hate Crimes

transcript

CHRISTY HOROWITZ & SANFORD HOROWITZATTORNEYS AT LAW

HOROWITZ LAW1032 SANTA BARBARA STREET

SANTA BANTA BARBARA, CA 93101(805) 452-7214

CHRIS@HOROWITZFORLAW.COMSANDY@HOROWITZFORLAW.COM

WWW.HOROWITZFORLAW.COM

Investigation and Prosecution of HATE CRIMES

New Year’s Eve

New Year’s Eve•Two Gay men left a downtown bar at 1:45am

•They were attacked by three men as they walked to their car

•Suspects were white, 20’s, shaved heads, dark clothing

Suspects shouted bigotry slurs and attacked the men, Broken Jaw; Severe Head Lacerations….HOW DO YOU INVESTIGATE?

Can Gang Can Gang casescases be charged with be charged with Hate Crime enhancements?Hate Crime enhancements?

• YES!.....YES!.....BUTBUT• Victim’s Victim’s protected statusprotected status must be a must be a

“substantial factor” in the commission of “substantial factor” in the commission of the offense.the offense.– Latin Gang fights a Black GangLatin Gang fights a Black Gang– Drug War over TerritoryDrug War over Territory

• Latin gang member sees black gang Latin gang member sees black gang member selling dope to a pedestrianmember selling dope to a pedestrian

• Latin gang member says “18Latin gang member says “18thth Street is Latin Street is Latin only. Fuck Bloods, Fuck N___.”only. Fuck Bloods, Fuck N___.”

• Latin gang member shoots Black Gang Latin gang member shoots Black Gang membermember

• Can you charge the Hate Crime Can you charge the Hate Crime Enhancement ????Enhancement ????

Can Gang cases be charged with Can Gang cases be charged with Hate Crime enhancements?Hate Crime enhancements?

• Yes, But Not Here.Yes, But Not Here.

• The The substantial motivesubstantial motive was Gang Rivalry and was Gang Rivalry and control of the Drug Tradecontrol of the Drug Trade

• NOT VICTIM’S RACENOT VICTIM’S RACE

• ADW but no Hate ADW but no Hate Crime EnhancementCrime Enhancement

*The White Supremacists saw a carload of African American youths parked in front of the school

*3 skinheads sprayed the car with bullets and yelled, “White Power, Fuck N____.”

*Convicted of Attempt Murder AND Hate Crime Enhancement: PC 422.75(c)

• Hawaiian Gardens in LA County• Claimed by a Latin gang, “Los

Loguitos.”• A few black families moved in into

the neighborhood• 3 gang members saw a 17 year old black

student walking home

•Beating while screaming “Fuck N____. This is Los Loguitos. Go back to Compton, you Fucking N_____.”

“This is Los Loguitos!”

• All defendants were convicted of Assault AND Hate Crime Enhancement: PC 422.75(c)

PC 422.6 (misd)• Use of Force

• Threats

• or Destruction of Property to Interfere with Another’s Exercise of Civil Rights

Just Speech?

• In a gay neighborhood in San Francisco a bunch of juveniles taunted a gay man

–“We’re going to kill you; you’re all going to die of AIDS; We’re going to get you faggots.”

•Speech alone may be the basis for charging PC 422.6(a)

Just Speech?–“We’re going to kill you; you’re all going to die of AIDS; We’re going to get you faggots.”

•The gay man slipped on the sidewalk•The juveniles attacked and kicked him on the ground until the man lost consciousness

•Juveniles convicted of Assault and PC 422.6(a) for the threats yelled before the attack

PC 422.6(a)

Speech alone is enough for PC 422.6(a) if:

The speech itself threatened violence and the defendant had the apparent ability to carry out the threat

PC 422.6(a)

The threat does not have to be unconditional or imminent

Contrast to PC 422

422 requires threat resulting in death or GBI

422.6(a) only requires any threat of violence

PC 422.7

• When the underlying offense was committed for the purpose of intimidating and interfering with the victim’s free exercise of a civil right

• because of victim’s status and perceived status

• present ability to commit violent injury & caused actual physical injury– Example: PC 242 – misd– Add PC 422.7(a) to elevate to a felony

ELEVATE MISDEMEANOR CONDUCT TO A FELONY

PC 422.7

• IF the crime committed is a FELONY (PC 245), don’t allege PC 422.7

• Use hate crime enhancement: PC 422.75 instead

ELEVATE MISDEMEANOR CONDUCT TO A FELONY

PC 422.6(b)

No damage or destruction of real property of another person for the purpose of intimidating or interfering with the free exercise or enjoyment of any right

Property of another: Victim does not need to own the property; Property includes ownership as well as possession or occupation

PC 422.6(b)Juveniles defaced public school property with, “N_____” and “Kill the N______.”

The area vandalized was associated with African American students and teachers

PC 422.7(b) - Crimes against Property > $950

Vandalizing the property of another person because of a person’s race, color, religion, ancestry, national origin, disability, gender, or sexual orientation

•PC 422.6(b) – misd hate crime if damage is less than $950

•PC 422.7(b) – felony hate crime penalty enhancement > $950

•OR…FELONY VANDALISM

FELONY VANDALISMVandalizing the property of another person because of a person’s race, color, religion, ancestry, national origin, disability, gender, or sexual orientation

PC 594(b) with hate crime enhancement•PC 422.75(a) if defendant acted alone (adds 1, 2, or 3 years) or

• PC 422.75(b) if defendant acted with others (adds 2, 3, or 4 years)

HATE SYMBOLSPlacing hate symbols on private property

Any person who places or displays a sign, mark, symbol, emblem, etc. on private property without permission for purposes of terrorizing the owner or in reckless disregard of the risk of terrorizing the owner

PC 11411(a) – Terrorizing (Misd)

HATE SYMBOLSPlacing hate symbols on private property

Any person who engages in a pattern of conduct for the purpose of terrorizing the owner or in reckless disregard of the risk of terrorizing the owner

places or displays a sign, mark, symbol, emblem, etc. on private property of another

On two or more occasions

PC 11411(b) – Continuous Terror (Felony)

Continuous TerrorPlacing hate symbols on private property

On three different occasions defendant scratched Nazi Swastikas on the inside wall of the elevator at his apartment building.

Defendant committed the act because he was anti-Semitic; he resented the fact that most of the occupants were Jewish and he wanted to terrorize themGovernor may offer a reward up to $50,000 for info (PC 1547(a)(13)

PC 11411(b) – Continuous Terror (Felony)

CROSS BURNING

Any person who burns or

PC 11411(c) – Felony

desecrates a cross on private property without permission for purpose of terrorizing the owner/occupant or

in reckless disregard of the risk of terrorizing the owner or

burns, desecrates, or destroys a cross on school with purpose of terrorizing

CROSS BURNING

Can you burn a cross on your private property?

PC 11411(c) – Felony

A Klan leader celebrated his birthday by torching a 30 foot cross on his front lawn.Private Property = NO HATE CRIME

CROSS BURNING – PC 11411(c)

statute does not violate Free Speech; cross burning is a “true threat” and “fighting words”

Claiming to be a practical joke, Defendant burned a cross on the front lawn of an inter-racial couple.

The victims were afraid for their lives and called police.

Defendant said it wasn’t racially motivated

Defendant said PC 11411(c) violates his right to free speech

CROSS BURNING – PC 11411(c)NO INTENT TO TERRORIZE NECESSARY

Defendant only needs to intend to commit the act

The fact that the victim is in fear is evidence that the act itself terrorizes the victim

Disorderly Conduct at a Religious Service

PC 302(a) (misd)

• Every person who intentionally disturbs any assemblage of people met for religious worship at a tax exempt house of worship by:

– Profane discourse, rude or indecent behavior, unnecessary noise

– either within the place or so near the place as to disturb

PC 302(a) (misd)

• 300 people marched, chanted slogans, and broke into a Catholic Church during Midnight Mass on Christmas Eve in 1969

• Banging on doors; screaming, running throughout the Church; assaulting church goers with rude behavior and unnecessary noise.

Vandalism at a Place of Worship PC 594.3(a) (misd or felony)

• Any person who knowingly commits any act of vandalism to a church, synagogue, mosque, temple, building owned and occupied by a religious educational institution, or other place primarily used as a place of worship where religious services are regularly conducted or a cemetery

– Defendants defaced a Catholic Church by writing their gang and street names on the church wall.

– Defendants were “claiming” their gang territory; not targeting the building because it was a church

– Defendants pled guilty to PC 594.3(a): statute does not require the church to be targeted specifically because it is a place of worship

Vandalism at a Place of Worship PC 594.3(b) (felony)

• Any person who knowingly commits any act of vandalism to a church, synagogue, mosque, temple, building owned and occupied by a religious educational institution, or other place primarily used as a place of worship where religious services are regularly conducted or a cemetery

– Which is shown to be a hate crime

– To have been committed for the purpose of intimidating and deterring people from freely exercising their religious beliefs

– STRAIGHT FELONY

Defendants entered a Jewish mortuary

Destroyed numerous headstones with Jewish insignias, names, symbols

Defendants did it because they are white supremacists and hated Jews

GUILTY

• COMMITTED BECAUSE OF THE RACE, COLOR, RELIGION, OR NATIONAL ORIGIN OR ANOTHER INDIVIDUAL OR GROUP,

• AND TO HAVE BEEN COMMITTED FOR THE

PURPOSE OF INTIMIDATING AND DETERRING PERSONS FROM FREELY EXERCISING RELIGIOUS BELIEFS

• NOTE:NO MENTION OF MISPERCEPTION OF THOSE TRAITS, DISABILITY, OR SEXUAL ORIENTATION

Threats Obstructing Exercise of Religion

Any person who, with the intent to cause, attempts to cause or causes another to refrain from exercising his or her religion or from engaging in a religious service

by means of a threat directly communicated to such a person to inflict an unlawful injury upon any person or

property and it reasonably appears to the recipient of the

threat that such threat could be carried out

PC 11412 (felony)

Terrorism – Use of Destructive Device or Explosive or Commission of Arson

Defendant bombed a gay bar, “Back Door Inn” in Lancaster.

The explosive device ignited and wounded a patron

Defendant found guilty of PC 12309, explosion of a destructive device causing bodily injury

Crime was substantially motivated by Defendant’s hatred toward the gay and lesbian community

Defendant found guilty of Hate Crime Enhancement: PC 422.75(b)

PC 11413 (felony)

Other Statutes

• Penal Code § 422: Criminal Threats

• Penal Code § 640.2: Writings

• Penal Code § 538(c): Ad into Newspaper

• Penal Code § 653(a) & (b): annoying telephone calls or text messages

Other Enhancements

• Penal Code § 190.2(a)(16): Special Circumstances for LWOP or Death

• Penal Code § 190.03(a): Special Circumstances for LWOP

Other Enhancements • Penal Code § 422.75(a): Felony Enhancement

for Hate Crimes

• Penal Code § 422.75(b): Felony in Concert Enhancement

• Penal Code § 422.75(d): Prior

• Penal Code § 422.7: Aggravating Factors for Punishment

Suspects shouted bigotry slurs and attacked the men, Broken Jaw; Severe Head Lacerations….HOW DO YOU INVESTIGATE?

HOW DO YOU INVESTIGATE?Just like a Gang case or DV

Reluctant victim?

Record your contacts; document with photos

Treat as if the victim will not testify

Was the crime motivated by Hate?

• Signs, symbols, words• Graffitti• Fliers, literature• Tattoos• Take photos!• Check out Facebook, look for suspect and

their friends?

Was the crime motivated by Hate?

• Did the suspect commit prior acts of a similar nature?

• Did the victim suffer prior acts?

• Are victim and suspect members of different groups?

Possible Charges: 242 or 243(b) w/ 422.7 elevator

245 – felony with 422.75(a) or (b) elevator

186.22

Resources

(310) 446-4248

(805) 564-6670