Unlike Any Other Crime

San Diego — If you watched any local news in late February, then you saw footage of Billy Dean McCall twice shove police chief David Bejarano's daughter on a department-store surveillance tape. It was for that attack, and for shoving five other women, that McCall was brought up on hate-crime charges. On March 3, he was found guilty of one hate crime for an attack on a woman outside a downtown restaurant and four counts of misdemeanor battery for the attacks on Yvonne Bejarano and three others. Because he was convicted of a hate crime, not simple battery, McCall faces ten years in prison instead of three.

The case, which was the first gender-based hate crime conviction in the country, brought a measure of national attention to the San Diego County District Attorney's office, in particular, the man who heads the hate-crimes unit, 34-year-old deputy D.A. Hector Jimenez. It also reopened the bag of objections to the decade-old hate- crimes statute. Jimenez recently met with a Reader reporter to answer some of them.

Objection 1: Prosecuting hate crimes is thought control.

Jimenez: Let me answer that with an example. A man named Cook, he and another homeless guy went into the U.S. Grant Hotel here, and the doorman, who is African-American, said to him, "If you're not a guest here, I'm going to have to ask you to leave." Cook got really angry at the doorman and told him to F-off and told him he wasn't going to take orders from someone of his skin color, obviously using different words. He told him he was upset that he even had a job there, and he continued to yell epithets at him. The doorman kept his cool and continued to try to get them to leave. So when the guys left, they were walking east on Broadway and a World War II vet, who was an African-American, happened to be walking by them, a 71-year-old man. Cook said something to him like, "You niggers need to respect the white man," and he called him a couple of more slurs and then shoved him against the wall. The old man fell hard and hurt his hands. The doorman and other people around were kind of shocked by this. Luckily, a cop happened to be coming down Broadway so they flagged him down. Cook was arrested and I prosecuted him for a hate crime against the old man. He was sentenced to two years. Now, what he did with the doorman was free speech. If we were trying to legislate his thought, we would have prosecuted him for his insults to the doorman. But we didn't. We prosecuted him for attacking the old veteran.

Objection 2: Hate is not a crime.

These things are commonly known as hate crimes, but the word hate gets misused and people mock the concept. People say, "If I murder somebody, don't I hate them?" But that's simplifying the concept. Hate crimes are not somebody hating somebody else for any reason. Hate crimes are when somebody commits a crime against somebody else because of the victim's race, gender, religion, disability, or sexual orientation. Hate is not something that I have to prove. I have to prove that they committed the crime because of who the victim is. The crime is the murder, assault, whatever it is. The "hate" aspect of it is an enhancement. For example, if you get convicted of robbery and you use a gun in the commission of the robbery, it turns into armed robbery, and you get a stiffer sentence. It's the same with a hate crime. If you beat somebody up for no reason, you'll get sentenced one way. But if you beat somebody up because they happen to be Jewish or Christian, then you'll be sentenced in a stronger fashion.

Objection 3: A crime is a crime no matter what the motivation of the criminal is.

Using evidence of motive is not a new concept in the law. We do that all of the time. For example, in murder cases. You consider whether it was self-defense, you consider whether it was premeditated versus a crime of passion. Take residential burglary. If I'm walking down the street and I need to use the restroom and I see your door open and I go in and use the restroom, the crime is residential trespassing, which is a misdemeanor. Now let's say I'm walking by again, I see the door open, and my intent is to go in and rip you off. I go inside your home, and as soon as I'm past the entryway, then I can be convicted of first-degree burglary because of my intention. Another thing you have to consider -- and this is the main reason we prosecute hate crimes -- is a hate crime is not just like any other crime from the victim's standpoint. When you talk to the victims and you look in their eyes, you see the fear and desperation and the sense of helplessness.

Let's say an African-American man moves his family into a new neighborhood, and he starts getting harassed. Rocks start coming through his windows, maybe graffiti here and there. Then, one day he wakes up in the middle of the night and finds a cross burning in his yard. What am I supposed to charge the person who did that with, malicious mischief? If it weren't for hate-crime laws, that would be the only crime. But do you think the guy who did that was just trying to brown some grass? Of course not. It was an act of terror. And what do you think the impact of that crime on that family would be? When people buy a house and move in, they have hopes and expectations of starting a new life in that new house. They're hoping things are going to be good for them. Then, all of a sudden, they get harassed and then they have a cross burned in their lawn. Obviously, those hopes and expectations shatter and they feel intimidated. It's important to me that people understand that we're not prosecuting hate crimes just for the heck of it. We're pursuing a higher goal. You have to penalize people who commit those kinds of attacks on people because that kind of crime translates into community fear. For example, after that Jewish community center got shot up by that jerk, Furrow -- the guy who shot at the kids and then killed the Filipino postal worker in L.A. -- most of the Jewish community centers in the nation hired security.

Objection 4: Hate crimes are crimes committed by white males against nonwhites.

That's not true. You need to understand that the hate-crime legislation doesn't say, "You can't beat up blacks. You can't beat up Mexicans. You can't beat up gays." Anybody can commit a hate crime, anybody can be the victim of a hate crime. I've prosecuted cases where white males were the victims because of race. Now, his anger and frustration can't be compared with the anger and frustration of a African-American who has been targeted for race because that white man doesn't have the historical wounds to associate it with. But I prosecute them both as hate crimes. The Reginald Denny beating -- the trucker that was beaten during the riots in L.A. -- if that wasn't a hate crime, I don't know what was. The man was beaten because he was white.

Objection 5: It's hard enough to compile a jury of mixed gender, religion, and race that will operate with unity and objectivity. The presence of hate-crime allegations makes it nearly impossible.

I agree that it's hard, but it's not impossible. The area of hate crimes does touch nerves in potential jurors. But that happens all the time with nonhate crimes as well. Let's say you have a child-abuse case, what juror is not offended by child abuse? What juror doesn't think that child sodomy shouldn't be tolerated? Every potential juror is going to go in saying, "I believe this is wrong." Let's take a civil jury. Can someone in a union sit in a civil case involving a labor dispute or some labor contract? If they say, "I've got to side with labor regardless of the evidence," they shouldn't. But if they can step back and consider the evidence and be fair, they can. The jury selection process can and does handle these challenges. Both lawyers can ask ten jurors to be excused for no reason. Then there's jury questioning and if somebody says, "I personally believe that anyone charged with a hate crime is probably guilty," they can be excused for cause. But if a juror says, "Like any other person, I don't like hate crimes, and I don't think people ought to commit hate crimes. But, if the prosecution doesn't convince me that he did it, then I'll find him not guilty. If they do convince me he did it, I will find him guilty," that's all you need.