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California Penal Code § [Section] 422.6(a) – Hate Crimes

California Penal Code § [Section] 422.6(a) – Hate Crimes

California Penal Code [CPC] §422.6(a)Hate Crimes – California Penal Code §422.6(a) makes it illegal to interfere with another's rights because that person possesses any actual (or perceived) characteristic protected by the law. Hate Crimes are punishable by a year in a county jail and/or a fine of up to $5,000.

What Does California Penal Code §422.6(a) [Hate Crimes] Prohibit?

In sum, to be guilty of Hate Crimes under CPC §422.6(a), you must:

  • Act willfully; AND,
  • Use force; AND,
  • Interfere with another's rights; AND,
  • Act because of some characteristic; AND,
  • Intend to interfere with the person's rights.

Defining “Hate Crimes” Under California Penal Code §422.6(a)

To convict you under CPC §422.6(a), the prosecutor must prove the following beyond a reasonable doubt:

  • WILLFULLY: You acted willfully;[1] AND,
  • USED FORCE: You used force; AND,
  • INTERFERED WITH…/FREE EXERCISE: You interfered with, injured, intimidated, or oppressed another person's exercise of rights established by the law or the Constitution of California or the Constitution of the United States of America; AND,
  • ACTUAL OR PERCEIVED CHARACTERISTICS: You acted in whole or in part[2] because of the person's actual or perceived disability,[3] or gender,[4] or nationality,[5] or race or ethnicity,[6] or religion,[7] or sexual orientation,[8] or association with a person or group having this or one or more of these actual or perceived characteristics;[9] AND,
  • INTENDED TO INTERFERE: You intended to interfere with the other person's right or privilege.

Note: The legally protected characteristics are listed in CPC §422.55.[10]

Example: Defendant Dominica admits that she physically blocked Victim Valentina's access to a public restroom. She admits that she did so because Valentina is transgendered, and intended to do it because she finds the idea of Valentina using a public restroom offensive. Nonetheless, Dominica says she can't be guilty under §422.6(a) because she didn't strike Valentina. Is Dominica correct or is she guilty? Conclusion: Dominica willfully prevented Valentina from using a public restroom, thereby denying her a right assured under law. She did this intentionally. Lastly, Dominica acted owing to Valentina's gender. These are the elements of the offense. Dominica didn't have to use violence to deny Valentina a civil right; the force used to block Valentina's access to the bathroom would qualify, too. Dominica is guilty.

Penalties For Hate Crimes Under CPC §422.6(a)

If you're convicted of Hate Crimes under CPC §422.6(a), the penalty may be:

  • A term of up to one (1) year in a county jail; OR,
  • A fine of up to $5,000 (five-thousand dollars); OR,
  • Both jail time and a fine.[11]

As stated previously, conviction under CPC §422.6(a) permits up to one (1) year in a county jail and/or a fine of up to $5,000 (five-thousand dollars).[12] Misdemeanor Probation, permitting you to serve at least part of your sentence outside custody, may also be available.

Defenses Against California Penal Code §422.6(a) – Hate Crimes

Three common defenses against a charge of Hate Crimes under CPC §422.6(a) are:

You Were Arrested Without Probable Cause

Example: Defendant Derek is arrested after he's seen sitting on a bench and talking with Victim Vanessa, who is in a wheelchair. He is charged under CPC §422.6(a). Derek insists that he never should've been arrested, since he did nothing that would cause anyone to believe a crime was being committed against Vanessa. Is Derek correct or should he be convicted of the crime?  

Conclusion: Probable cause to arrest exists only when law enforcement has reason to conclude that a crime has been committed or is being committed by a person. Here, the facts suggest no behavior by Derek which would qualify as a hate crime – or as illegal at all. This makes his arrest illegal. Derek, it follows, is correct. He should not have been arrested. Derek was arrested without probable cause.      

Your Act Wasn't Motivated By Bias

Example: Defendant Damian happens upon Victim Verne, who is deaf, when Verne is mugging Citizen. Damian draws a firearm and drives off Verne. Damian uses no more force than this, for no longer than this. Later, Verne presses charges against Damian for using force against him. Now Damian faces a charge under CPC §422.6(a). Damian says that he can't be guilty, on these facts. Is Damian innocent?

Conclusion: Damian willfully used force against a deaf person. These are elements of the crime. But Damian only became involved with Verne to protect Citizen from a crime. Given that Damian used only the force necessary to protect Citizen, for only as long as necessary, Damian can claim the right to defense of another person.[13] Therefore, Damian is innocent. Damian's act wasn't motivated by bias.        

You Were The Victim Of Duress

Example: Defendant Danielle manages properties. She's approached by Gangster, who threatens her with violence unless she embezzles from Victim Victor, a Korean-American store owner targeted by Gangster because of Victor's ethnicity. Danielle gives money to Gangster. Victor finds out that rents deposited with Danielle have been stolen for Gangster. She is charged under §422.6(a). Is she guilty?   

Conclusion: Danielle willfully stole from Victor, who was targeted because of his ethnicity. These are elements of the crime. But Danielle's theft was strictly the result of a credible threat of violence. This is known as duress. It is a complete defense to the charge. The facts convey no reason to believe Danielle would've otherwise stolen from Victor. Therefore, Danielle is innocent. She was the victim of duress.

Related Offenses

Note: The crimes below are described generally as “related” because they're frequently charged with CPC §422.6(a) and/or have common elements the prosecutor must prove beyond a reasonable doubt.

The California Penal Code includes several offenses related to Hate Crimes: “Hate Crimes” Defined (CPC §422.55), Misdemeanor Hate Crimes Penalties (CPC §422.7), Felony Hate Crimes Penalty Enhancements (CPC §422.75), Simple Assault (CPC §240), Battery (CPC §242), Disturbing a Religious Meeting (CPC §302(a)), and Criminal Threats (CPC §422(a)).

“Hate Crimes” Defined

Section§422.55 defines Hate Crimes as “a criminal act committed, in whole or in part, because of one or more of the [ ] actual or perceived characteristics”[14] listed in the statute. The seven characteristics are: 

1) Disability;

2) Gender;

3) Nationality;

4) Race or ethnicity;

5) Religion;

6) Sexual orientation; AND/OR,

7) Association with a person or group with one or more of these actual or perceived characteristics.[15]

Example: Defendant Dominica attacks Victim Vero, a man she thinks is gay because of the pro-gay rights slogan emblazoned on his T-shirt. She strikes him in the face. Vero reports her and has her arrested for attacking a member of a group protected under CPC §422.55(6). But Dominica insists that she can't be guilty because Vero, by his own admission, is not gay. Is Dominica correct or should she be convicted?

Conclusion: Dominica attacked a man illegally because she perceived him to have a characteristic that is protected by the statute. This is all the law requires. That Dominica was incorrect about Vero's identity is beside the point; Hate Crimes laws also prohibit attacking those who're merely associated with groups that have protected characteristics, after all. Thus, Dominica is incorrect. She should be convicted.

Misdemeanor “Hate Crimes” Penalties

Section 422.7 establishes that all Hate Crimes that aren't punished with a term in state prison are punishable by up to one (1) year in county jail and a fine of up to $1,000 (one-thousand dollars),[16] or up to three (3) years in a state prison and/or a fine of up to ten thousand dollars ($10,000). This makes such crimes “wobbler”[17] offenses; they wobble between misdemeanors and felonies. Note, however, that the statute applies to your case only if:

1) The hate crime included the ability to commit a violent injury or caused physical injury; OR,

2) The hate crime caused damage in excess of nine hundred fifty dollars ($950) to property; OR,

3) You've been convicted of a violation of subdivision (a) or (b) of Section 422.6; OR,

4) You've been convicted of a conspiracy to commit a crime in subdivision (a) or (b) of §422.6.

California Jury Instructions – Misdemeanor “Hate Crimes” Penalties

To convict you under CPC §422.7, the prosecution must prove the following beyond a reasonable doubt:

You committed a crime with the intent to interfere with or intimidate another person's free exercise or enjoyment of a right or privilege established by the law or Constitution of California or the United States. You acted in whole or in part because of the other person's actual or perceived disability, gender, nationality, race or ethnicity, religion, sexual orientation, or association with a person or group having this or one or more of these actual or perceived characteristics. When committing that crime, finally, you caused an actual physical injury or had the ability to cause a violent injury or you caused property damage in excess of $950 (or you have a prior conviction).

Example: Defendant Douglas is convicted of a hate crime under CPC §422.6(a). He accepts the sentence he has been handed under that Section. But he insists that he isn't eligible for an additional term in custody under CPC §422.7 - even though he was previously arrested for a conspiracy to commit a hate crime punishable under §422.6(b). Is Douglas correct or should he accept a sentence enhancement?  

Conclusion: Douglas committed a hate crime punishable under CPC §422.6(a) after being involved in a hate crime conspiracy to violate Subpart (b) of the same statute. These are elements of the statute. But the facts do not say that Douglas was convicted of the conspiracy charge. A prior conviction is necessary for Section 422.7 to apply to his case. Thus, Douglas is correct. His sentence should not be enhanced.  

Felony Hate Crimes Penalty Enhancements

The Felony Hate Crimes Penalty Enhancements (CPC §422.75) law impose an additional penalties whenever a person is convicted of certain felony hate crimes.

If you're convicted of a felony hate crime, the additional penalty may be:

  • A term of up to three (3) years in a state prison.

If you're convicted of a felony hate crime with another person, however, the additional penalty may be:

  • A term of up to four (4) years in prison.

California Jury Instructions – Felony Hate Crimes Penalty Enhancements

To convict you under CPC §422.75, the prosecutor must prove the following beyond a reasonable doubt:

You committed a felonious crime in whole or in part because of an alleged victim's actual or perceived disability, gender, nationality, race or ethnicity, religion, sexual orientation, or association with a person or group having this one or more of these actual or perceived characteristics.

Example: Defendant Demetrius participated in a hate crime in which Friend killed Victim Victoria, a lesbian. Demetrius did not actually hurt Victoria; he provided space for Friend to commit the crime after Friend decided to abduct Victoria. Nonetheless, he has been convicted and is now facing a sentence enhancement under CPC §422.75. He says this cannot happen, on these facts. Is Demetrius correct?

Conclusion: Demetrius aided and abetted a crime by providing a space for Friend to kill Victoria after Friend decided to abduct her. The statute calls for penalty enhancements for those who are principals to hate crimes and for those who aid and abet the principals - even though they are not the personally ones who commit the crimes. Therefore, Demetrius is incorrect.

Simple Assault

California's law on Assault (CPC §240) applies whenever anyone willfully does anything that would result in applying force to another person while having facts that would make a reasonable person realize that the act would result in applying force to another. To be convicted, you have to have the present ability to apply force and you can't have acted in self-defense or defense of another. The law is related to Hate Crimes because assaults are often involved in hate crimes.

If you're convicted of Simple Assault, the penalty may be:

  • A term of up to six (6) months in a county jail; OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both jail time and a fine.[18]

More information can be found in the California Assault Crimes section of the Kann California Law Group's website. If you have questions, contact any of the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call goes directly to a lawyer. That is our guarantee.

California Jury Instructions – Simple Assault

To convict you under CPC §240, the prosecutor must prove the following beyond a reasonable doubt:

You willfully did something that would directly and probably result in the application of force to another. When you acted, you were aware of facts that would lead a reasonable person to realize that the act would directly and probably result in application of force. When you acted, you had the present ability to apply force to another person. Finally, you did not act in self-defense or in defense of someone else.

Example: Defendant Dallas admits to swinging a broom at Victim Veronica. He admits to being close enough that he could've struck Veronica, had he tried to do so. He admits that he wasn't defending anyone at the time. He acted willfully and knew that swinging a broom would naturally result in the application of force. Yet Dallas insists that he can't be guilty; he didn't hit Veronica. Is Dallas correct?        

Conclusion: Dallas willfully did something that a reasonable person would recognize as naturally and probably resulting in application of force. The facts provide no reason to believe he didn't understand this at the time. He had no legal excuse. These are the elements of the crime. Dallas believes he had to make contact with Veronica, but that's the defining characteristic of Battery (below). Dallas is incorrect.

Simple Battery

California Penal Code §242 makes it illegal to use willful and unlawful force on another person. The law is related to Hate Crimes because hate crimes require the use of force against another person.

If you're convicted of Battery, the penalty may be:

  • A term of up to six (6) months in a county jail; OR,
  • A fine of up to $2,000 (two-thousand dollars); OR,
  • Both jail time and a fine.[19]

More information can be found in the Simple Battery section of the Kann California Law Group's website. If you have questions, contact any of the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. It is guaranteed.

California Jury Instructions – Battery

To convict you under CPC §242, the prosecution must prove the following beyond a reasonable doubt:

You willfully and unlawfully touched someone in a harmful or offensive manner. Additionally, you did not act in self-defense, in defense of someone else, or while reasonably disciplining a child.

Example: Defendant Diane was prevented from driving by Victim Vi, who stood in front of Diane's car. Vi was warned that Diane would run her over if she didn't get out of the way. Vi refused. Then Diane advanced until her front bumper made contact with Vi's knees. She stopped immediately and backed up. Vi charged Diane under §242. Diane says she's innocent, since she didn't run over Vi. Is Diane guilty?

Conclusion: Vi was touched willfully by Diane via the car bumper. The contact was harmful or offensive enough that Vi reported Diane to police. This is all the law requires. That Diane didn't further her battery by advancing the car and running Vi over is of no consequence for purposes of CPC §242. Diane is guilty.

Disturbing a Religious Meeting

Disturbing a Religious Meeting (CPC §302) occurs when anyone intentionally disturbs a religious assembly at a tax-exempt place of worship through profanity, rude or indecent behavior, or unnecessary noise. The offense can occur inside the place where the meeting is held or near enough to disturb it. This makes it possible to disrupt a religious meeting through committing a hate crime, permitting the prosecution to charge you with both crimes in the same trial.

If you're convicted of Disturbing A Religious Meeting, the penalty may be:

  • A term of up to one (1) year in a county jail; OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both jail time and a fine.[20]

California Criminal Jury Instructions – Disturbing A Religious Meeting

To convict you under CPC §302, the prosecution must prove the following beyond a reasonable doubt:  

You intentionally disturbed people who met for religious worship at a tax-exempt place by profanity, indecent behavior, or unnecessary noise. You also either disturbed them where the meeting was held or near enough to disturb the meeting.

Example: Defendant Dickie was apprehended painting graffiti on a wall of a synagogue. Although the graffiti wasn't anti-Semitic, it was profane. A charge of violating CPC §302 has been lodged against him.  Dickie painted the synagogue wall at 3 AM on a Wednesday with no one around. The wall was cleaned soon after. He doesn't understand how he could be guilty, under these circumstances. Is Dickie guilty? 

Conclusion: Dickie intentionally wrote a profanity that might disturb people who meet at the synagogue, a tax-exempt place for religious worship. But no one was disturbed, since there was no religious meeting at the time Dickie wrote the graffiti. Furthermore, the facts do not indicate that the graffitied wall was seen by anyone before being cleansed of the profanity. Dickie, it follows, is innocent of violating §302.   

Criminal Threats

California's law on Criminal Threats (CPC §422(a)) (a crime formerly known as ‘Terrorist Threats') applies whenever a person “threatens to commit a crime” that would “result in death or great bodily injury… with the specific intent that the statement” be taken as a threat to another person, resulting in the target of the threat feeling “sustained fear.”[21] The law can be violated by threatening a member of a person's family as well as threatening a particular person. The crime is related to Hate Crimes because criminal threats are often involved in hate crime commission, permitting the prosecution to charge you with both crimes in the same trial.

Criminal Threats may be punished as a Misdemeanor or a Felony. This makes the crime a “wobbler.”[22] If you're convicted of the Felony form, the penalty may be:

  • A term of up to three (3) years in a state prison; OR,
  • A fine of as much as $10,000 (ten-thousand dollars); OR,
  • Both imprisonment and a fine.[23]

Note: California's “Three Strikes” law also applies to CPC §422,[24] meaning that a “third strike” conviction involving Criminal Threats may produce a sentence of twenty-five (25) years in a state prison.[25]

More information can be found in the Criminal Threats section of the Kann California Law Group's website. If you have questions, contact any of the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. It is guaranteed.

California Jury Instructions – Criminal Threats

To convict you under CPC §422(a), the prosecution must prove the following beyond a reasonable doubt:

You willfully threatened to unlawfully kill or unlawfully cause great bodily injury to a complaining witness or the member[s] of the witness's immediate family. You made the threat orally, in writing, or by electronic communication device. You intended that your statement be understood as a threat and intended that it be communicated to the complaining witness. The threat was so clear, immediate, unconditional, and specific that it communicated a serious intention and the immediate prospect that the threat would be carried out. The threat actually caused the complaining witness to be in sustained fear for his or her own safety or for the safety of her or his immediate family. Finally, the complaining witness' fear was reasonable under the circumstances.

Example: Defendant Denny gets into a heated argument with Victim Val. Tiring of Val's repeating his words to him, Denny shouts, “If ya keep it up Val, I swear, I'm gonna kill ya eventually!” He's more than ten feet from her at the time. Val is offended. She immediately calls police and has Denny charged under CPC §422(a). Is Denny guilty, under these circumstances?

Conclusion: Denny willfully communicated a threat to kill Val. But, ten feet away, Denny made a threat that was not so specific or unconditional that he couldn't simply excuse it as an angry offhanded remark with no real intention behind it. Furthermore, Val cannot be in “sustained fear” if she “immediately calls police”; this is the opposite response to what the statute requires. Denny, it follows, is innocent.

What Can I Do If I'm Charged With Hate Crimes?

The State of California treats Hates Crimes as an exceptionally serious offense. If you're charged with Hate Crimes, it's essential that you retain a skilled, dedicated criminal defense attorney as soon as possible. Your rights, freedom, and livelihood are at stake.

Remember, a professional criminal defense attorney may be able to:

  • Negotiate a lesser charge in a plea bargain;
  • Reduce your sentence;
  • Or even get charges dismissed completely.

The attorneys at the Kann California Law Group have an excellent understanding of the local courts and an extensive knowledge of California's criminal justice system. We can represent you in Ventura, Santa Clarita, Los Angeles, Encino, Pasadena and many other Southern California cities. 

If you or someone you know has been arrested for, or charged with, Hate Crimes, our attorneys will analyze the facts of your case and plan a strategy that will help you obtain the best possible outcome.

Contact the Kann California Law Group today to schedule your free and confidential consultation.

References

[1] “Someone commits an act willfully when he or she does it willingly or on purpose.” See California Criminal Jury Instructions 1350 (CALCRIM) (2022).

[2] You “acted in whole or in part because of the actual or perceived characteristic[s] of the other person if: [¶] 1. [You were] biased against the other person based on the other person's actual or perceived disability, or gender, or nationality, or race or ethnicity, or religion, or sexual orientation, or association with a person or group having this [or] one or more of these actual or perceived characteristic[s]); [¶] AND, [¶] 2. The bias motivation caused [you] to commit the alleged acts. [¶] […]  [T]he bias described here must have been a substantial motivating factor. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that motivated the conduct.” See California Criminal Jury Instructions 1350 (CALCRIM) (2022).

[3] “Disability,” for Hate Crimes purposes, is defined in California Criminal Jury Instructions 1353 (CALCRIM) (2022).

[4] “Gender, as used here, means sex and includes a person's gender identity and gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth.” See California Criminal Jury Instructions 1350 (CALCRIM) (2022).

[5] “Nationality, as used here, means country of origin, immigration status, including citizenship, and national origin.” See California Criminal Jury Instructions 1350 (CALCRIM) (2022).

[6] “Race or ethnicity includes ancestry, color, and ethnic background.” See California Criminal Jury Instructions 1350 (CALCRIM) (2022).

[7] “Religion, as used here, includes all aspects of religious belief, observance, and practice and includes agnosticism and atheism.” See California Criminal Jury Instructions 1350 (CALCRIM) (2022).

[8] “Sexual orientation means heterosexuality, homosexuality, or bisexuality.” See California Criminal Jury Instructions 1350 (CALCRIM) (2022).  

[9] “Association with a person or group having this [or] one or more of these actual or perceived characteristic[s] includes advocacy for, or identification with, or being on the ground owned or rented by, or adjacent to, a person, or group, or family, or community center, or educational facility, or office, or meeting hall, or place of worship, or private institution, or public agency, or library, or other entity that has, or is identified with people who have, that [or] one or more of those characteristic[s].” See California Criminal Jury Instructions 1350 (CALCRIM) (2022).  

[10] See California Penal Code [CPC] §422.55.

[11] See CPC §422.6 (c).

[12] See above.

[13] See “Self-Defense/Defense of Others.” California Criminal Jury Instructions 1341 (CALCRIM) (2022).

[14] See CPC §422.55 (a).

[15] See above.

[16] See CPC §19.  

[17] See “Wobbler Law and Legal Definition” at USLegal.com.   

[18] See Endnote 16.

[19] See CPC §243 (a).

[20] See CPC §302 (a).

[21] See CPC §422 (a).

[22] See Endnote 17.

[23] See CPC §672.

[24] See CPC §1192.7 (c) (38).

[25] See CPC §667 (e) (2) (A) (ii).

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