Some students and staff were surprised and disappointed to learn the two students accused of the vandalism in Whitney Hall would not be charged with a hate crime.
However, Butte County Superior Court Judge James Reilley ruled Friday that Chico State students Deric Braito, 22, and Timothy Simmons, 21, would be charged with felony vandalism. He ruled against the hate-crime enhancement because there was not enough evidence to show that the university is associated with an "identifiable group or race."
The two are accused of the Feb. 27 vandalism of Whitney Hall where swastikas, racial slurs and vulgar language were found written in black permanent ink on doors, walls and community boards.
Rachel Howard, a Whitney Hall resident who had a swastika drawn on the whiteboard on her door, said thinks it's "ridiculous" that the two students are not being charged with the hate-crime enhancement.
"It was clearly and blatantly racial and hateful in nature," she said.
She said she thinks her door was targeted in the vandalism because she had posted sarcastic jokes about why homosexual couples should not be able to marry. She said even though she is a lesbian, she didn't think the vandalism was targeted at her, just at the message she had on her door.
"We tried to write it off as some drunk idiot with a marker, but that took away from the seriousness," Howard said. "It was just disrespectful and ignorant."
She said the night after the swastika was drawn, someone ripped the jokes off her door. She said she didn't report the incident.
Katrina Dent, Howard's roommate, said she understands why there may not have been enough evidence to consider the vandalism a hate crime.
"There wasn't a whole lot written (against homosexuality)," she said. "There was nothing like 'gays go home.'"
But regardless, she said she thinks Simmons and Braito should have been charged with the enhancement in the case.
"I wish it could be tried as a hate crime because they deserve it," she said.
Simmons and Braito are scheduled to be arraigned for felony vandalism at 8:30 a.m. on April 19 in Butte County Superior Court. The two could face a maximum three-year prison sentence if found guilty. The enhancement would have added a maximum of three years in prison.
Director of Student Activities Herman Ellis said he was saddened by the judge's decision.
"It's disappointing," he said, "but it doesn't deter this institution from saying that these messages will not be tolerated."
Even though the court does not recognize the vandalism as a hate crime, Ellis said the public might.
"The laws are one thing, and the court of public opinion is another," he said.
Ellis said the university's strong response, which included a letter from the president to students condemning the acts, was necessary.
"It was important for the university to step up and make the statement and not sweep it under the rug," he said.
President Paul Zingg refused to comment on the judge's ruling because he is not familiar with the legal qualifications of a hate crime, and because he could have to testify in the case. However, Zingg said in an e-mail, what the students are accused of was not acceptable.
"Whether it's a formal hate crime or not, the incident is disturbing and has no place in any community that values tolerance, respect and civil behavior," Zingg wrote.
Mark Stapleton, the public defender assigned to Braito, said there has to be evidence the crime was directed at an identifiable group of people, and there is no such group associated with Whitney Hall.
"It's certainly not similar to a synagogue," he said during the preliminary hearing Friday. "There is not enough evidence to consider this a hate crime."
In court, Attorney Craig Leri, representing Simmons, echoed Stapleton's words.
"There's absolutely nothing to show it was directed at anybody," Leri said. "They don't have a bias or motivation. It was done because nobody was there and these kids were drinking."
Assistant District Attorney Mark Murphy said that since the university associates itself with diversity, the hate-crime enhancement should be used. He said the majority of the vandalism, which included swastikas and racial slurs, was race related.
"They assert they are not racist," Murphy said to the judge, "but their behavior tells a different tale."
Leri said just because the university is diverse doesn't mean any crime committed there is a hate crime.
"It's easy to say 'we're going to charge this as a hate crime' with everything else going on," he said. "It's just vandalism."
Scott Jason can be reached at sjason@orion-online.net
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