An interesting story from the Pleasanton Weekly:
Abdul Walid Hamid pled not guilty Thursday morning to charges of battery, grand theft, exhibition of a deadly weapon and a possible hate crime.
Police arrested the 22-year-old Hayward man Nov. 4 after he reportedly robbed a person and scared others at Stoneridge Shopping Center….
According to reports, Hamid was yelling “Allah is power” and “Islam is great” while holding a pen in a fist over his head and witnesses said he had been shouting anti-Christian comments.
Lt. Mike Elerick of the Pleasanton Police Department said the man was not provoked and didn’t threaten violence, but he committed robbery when he grabbed and broke a crucifix off a person’s neck.
Hamid’s family members, who declined to give their names, say it was all a misunderstanding. Outside the courtroom, they said Hamid was provoked when the customer with the necklace reportedly called him a derogatory name. They said Hamid put his hand on the customer’s shoulder, asking the person not to use that word. When the customer pulled away, the family said Hamid’s hand came into contact with the necklace and it accidentally broke….
I had earlier covered a similar case involving a different combination of religions, though also somewhat less serious conduct, so it seemed to me interesting to note this case as well. A few thoughts about the charges:
1. I oppose hate crime enhancements in this case as I do in other cases. (I think such enhancements are a bad idea, though generally constitutional.) Nonetheless, the facts as described would indeed qualify as a hate crime under California law, since the act was apparently “committed, in whole or in part, because of [the religion] of the victim,” or at least the victim’s “[a]ssociation with a … group with [such a] perceived characteristic.” One could argue, I suppose, that the accused didn’t care about the religion of the victim, but only about the religiosity of the symbol that he grabbed; but I would think that when a person is attacked because she is wearing a symbol of a particular religion, that would be treated by the law as tantamount to an attack based on the victim’s religion.
2. Would the accused’s displaying a pen in a fist over one’s head constitute brandishing a deadly weapon? The applicable legal rule seems to be this (paragraph break and emphasis added):
There are, first, those instrumentalities which are weapons in the strict sense of the word, and, second, those instrumentalities which are not weapons in the strict sense of the word, but which may be used as such. The instrumentalities falling in the first class, such as guns, dirks and blackjacks, which are weapons in the strict sense of the word and are ‘dangerous or deadly’ or others in the ordinary use for which they are designed, may be said as a matter of law to be ‘dangerous or deadly weapons.’ This is true as the ordinary use for which they are designed establishes their character as such.
The instrumentalities falling into the second class, such as ordinary razors, pocket-knives, hatpins, canes, hammers, hatchets and other sharp or heavy objects, which are not weapons in the strict sense of the word and are not ‘dangerous or deadly’ to others in the ordinary use for which they are designed, may not be said as a matter of law to be ‘dangerous or deadly weapons.’ When it appears, however, that an instrumentality other than one falling within the first class is capable of being used in a ‘dangerous or deadly’ manner, and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require, we believe that its character as a ‘dangerous or deadly weapon’ may be thus established, at least for the purposes of that occasion.
This definition has been used to conclude that a screwdriver could, under the right circumstances, constitute a deadly weapon, People v. Simons, 42 Cal. App. 4th 1100 (1996), as could a pit bull, People v. Henderson, 76 Cal. App. 4th 453 (1999). A nonprecedential case, In re John A., 2003 WL 2008173 (Cal. Ct. App.), likewise held that a brandished pen could under the right circumstances constitute a deadly weapon, and, though it’s not a binding precedent, it’s probably a fair predictor of how other courts would rule. The key factual question, I take it, would be whether “it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require.”
4. UPDATE: A reader asked why this conduct wouldn’t also be robbery, “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” I thought so, too, but apparently under California case law, “something more is required than just that quantum of force which is necessary to accomplish the mere seizing of the property”; “the force that is required to make the offense a robbery is such force as is actually sufficient to overcome the victim’s resistance.” The “from the person of another” branch of grand theft is supposed to cover precisely those thefts form the person of another that involve lesser amounts of force. I’m not positive whether ripping off a chain falls on the sufficient force side, but I suspect the prosecutor concluded that it didn’t (or at least that the matter wasn’t clear), and that grand theft from the person of another was a more suitable charge.