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Hate Crimes in California: Laws, Penalties & Defenses

Hate Crimes in California: Laws, Penalties & Defenses

California Penal Code [CPC] Sections [§§] 422.55, 422.6, 422.7, and 422.75 are Hate Crime laws. State law prohibits committing crimes motivated by bias against a person because of personal characteristics like race or gender.

Each of these statutes establishes an important aspect of California Hate Crimes law. Section 422.55 defines the categories of those protected against “hate crimes” while Section 422.6 defines “hate crime” as an offense. The other sections establish enhanced penalties for persons convicted of hate crimes, depending on whether they commit misdemeanors or felonies.

California Penal Code §422.55 (Definition of Hate Crime)

California Penal Code §422.55 establishes that a “hate crime” means a criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim:

  • Disability;
  • Gender,
  • Nationality or national origin;
  • Race or ethnicity;
  • Religion or place of worship;
  • Sexual orientation; OR,
  • Association with a person or group of persons with one or more of these actual or perceived characteristics.[1]

However, in order to understand hate crimes law, is it necessary to examine:

1) Actual Characteristics

In a hate crime prosecution, “actual” characteristics are those in fact possessed by a victim which are protected by statute. These include race, disability, and gender.

2) “Perceived” Characteristic

A perceived characteristic is one which a victim of a hate crime appears to possess. Thus, a hate crime can occur even if it the victim didn't have a protected characteristics listed in Section 422.55. The mere perception of a protected characteristic is enough.

3) “Because Of A Protected Characteristic”

You commit a crime because of a protected characteristic if you act because “wholly or partially” because of that characteristic. This may be demonstrated by showing that you were biased against the victim because one of the characteristics listed in CPC §422.55, causing you to commit the hate crime.

California Penal Code §422.6 (Hate Crimes)

California Penal Code §422.6 makes it illegal to interfere with another's rights because that person possesses any actual (or perceived) characteristic protected by the law. You are guilty of a hate crime under CPC §422.6 if:

  • You use force; AND,
  • You willfully interfere with another person's civil rights or constitutional rights; AND,
  • You act in whole or in part because of the other person's actual or perceived disability, gender, nationality, race or ethnicity, religion, or sexual orientation; AND,
  • You intend to interfere with the other person's legally protected rights.[2]

If you're convicted under “Hate Crimes,” 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.[3]

As state above, if you're convicted under CPC §422.6, you face up to one (1) year in a county jail, a fine of up to $5,000 (five-thousand dollars), or both jail time and a fine.[4]

California Criminal Jury Instructions – Hate Crimes

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

You used force to willfully interfere with another person's free exercise of a right or privilege established by the law or Constitution of California or the United States. You did so in whole or in part because of 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]. Finally, you intended to interfere with the other person's legally protected right or privilege.

Example: Defendant Davis thinks that Victim Victor, a classmate, is gay. Fearing that Victor will make a romantic pass at him, Davis tells Victor that he “will mess” Victor “up real bad if” Victor “hits on” Davis. Victor interprets this as a violent act motivated by anti-gay bias and reports Davis for a violation of CPC §422.6(a). Davis insists that he isn't guilty, even if he meant what he said. Is Davis correct or is he guilty?

Conclusion: Davis intended to prevent Victor from expressing himself when he threatened Victor. He did this because he feared that Victor was gay and would seek a romantic involvement with Davis. He acted willfully. These are elements of the charge. But Davis used no force against Victor. This is required under the law. Thus, even if Victor could be charged with a different offense, he is correct about this charge.

CPC §422.7 (Misdemeanor Hate Crimes Enhancement)

Section 422.7 imposes an additional penalty whenever anyone is convicted of a misdemeanor hate crime. The statute applies to your case only if the prosecution proves:

  • That you were convicted of a misdemeanor; AND,
  • That the crime meets the legal definition of “hate crime,” per CPC 422.55; AND,
  • That you committed crime to interfere with the victim's exercise of legal rights;[5] AND,
  • That the crime caused actual physical injury; OR,
  • That the crime occurred when you had the present ability to commit a violent injury against the victim;[6] OR,
  • That the misdemeanor caused property damage costing more than nine hundred $950;[7] OR,
  • That you have been previously convicted of a hate crime.[8]

Since CPC §422.7 can be charged as a misdemeanor or a felony, depending on the facts of your case, Section 422.7 is a “wobbler”[9] crime; the law “wobbles” between two degrees of severity. If you are subject to the misdemeanor form, the penalty may be:

  • An additional term of up to one (1) year in a county jail;[10] OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both jail time and a fine.[11]

If you're subject to the felony form, however, the penalty may be:

  • An additional term of up to three (3) years in a state prison;[12] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both imprisonment and a fine.[13]

As stated above, if you're subject to enhanced punishment for a misdemeanor under CPC §422.7, the penalty may be an additional term of up to one (1) year in a county jail,[14] a fine of up to $1,000 (one-thousand dollars), or both jail time and a fine.[15] However, if your sentence is enhanced as a felony, you face an additional term of up to three (3) years in a state prison,[16] or a fine of up to $10,000 (ten-thousand dollars), or both imprisonment and a fine.[17]

California Criminal Jury Instructions – Misdemeanor Hate Crimes Enhancement

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

When committed a hate crime intending 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 characteristic[s]. Finally, when committing that crime, you caused an actual physical injury or had the ability at that time to cause a violent injury or you caused property damage in excess of $950.

Example: Defendant Diego admits he spraypainted a racial slur on Victim Vern's garage door. He admits that he was motivated by a racial bias when vandalizing the door. He even admits that he hoped to harass Vern into moving away. He has been convicted of Vandalism. But Diego insists he can't be eligible for enhancement under §422.7 because the damage to the garage door was only $500. Is Diego correct?

Conclusion: Diego willfully vandalized Vern's property. He did so because he hoped to intimidate Vern into declining to exercise his right to live near Diego. He was motivated by racial bias against Vern. These are the elements of the law. But where Section 422.7 applies because of property damage, the value of that damage must exceed $950. The damage Diego did was significantly less extensive. Diego is correct.

CPC §422.75 (Felony Hate Crimes Enhancement)

California Penal Code §422.75 imposes an additional penalty when anyone is convicted of a felony hate crime. The enhancement is still greater if you commit the hate crime in concert with another person.

If you're subject to sentence enhancement under the CPC §422.75, the penalty may be:

  • An additional term of up to four (4) years in a state prison.[18]

As stated above, if you're subject to sentence enhancement under CPC §422.75, the penalty may be an additional term of up to four (4) years in a state prison.[19]

California Criminal Jury Instructions – Felony Hate Crimes Enhancement

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

When committing a felonious hate crime, you intended 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 characteristic[s].

Example: Defendant Dominic violently assaults Victim Vivian after concluding that she is a member of an Asian ethnic group he hates. But Dominic also attacked Vivian because she has jewelry that he hoped to steal. Now, having been convicted of a felony hate crime, Dominic faces enhancement under §422.75. Should the fact that there were multiple reasons for attacking Vivian prevent application of the statute?

Conclusion: Dominic willfully committed a felony hate crime against Vivian. He was motivated in part by Vivian's ethnicity. He intended to interfere with her right to peaceful enjoyment of life. These are the elements of the statute. Racial bias doesn't have to be the only motivation behind the crime - just a substantial motivation. The existence of multiple reasons doesn't prevent application of the statute.

Major Federal Hate Crimes Laws

While a list of federal hate crimes laws is too extensive to recite here, major enactments include:

  • The Civil Rights Act of 1964;[20]
  • The Civil Rights Act of 1968;[21]
  • Conspiracy Against Rights;[22] AND,
  • The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act.[23]

Common Defenses Against California Hate Crimes Charges

Three common defenses against California hate crimes charges are:

You Were Exercising A Free Speech Right

Example: Defendant Dan goes to a public space dedicated to free speech. He carries a tiki torch at night and walks about, chanting, “Jews will not replace me!”  Victim Vittorio sees this and concludes that Dan is trying to intimidate him, since Vittorio is Jewish. He reports Dan, who arrested and charged under CPC §422.6. Dan insists he cannot be convicted under these circumstances. Is Dan correct, or is he guilty?

Conclusion: Dan went to a public space dedicated to free speech. This gives him a constitutional right to express himself within the confines of that space, a right which cannot be limited without a compelling state interest. Dan did nothing more than the law permits. Leaving aside the apparent absence of the use of any kind of force against Vittorio, Dan is still correct. He was exercising a free speech right.

Your Act Wasn't Motivated By Bias

Example: Defendant Dee Dee is a landlord who has decides to evict Victim Vincente for unpaid rent. But Vincente wrongly believes that Dee Dee embezzled his rent payments. He's convinced that she did so because she's biased against the physically disabled. Now Vincente believes that she's trying to get away with her crime by evicting him. He has Dee Dee arrested for violating CPC §422.6. Is Dee Dee guilty?

Conclusion: Dee Dee, as the facts make clear, was motivated solely by Vincente's unmade rent payments when she evicted him. Yet a bias against a member of a protected group is an element of the crime of which Dee Dee has been accused. If even one element of an accusation can't be proven, the accused must be acquitted in US courts. Thus, Dee Dee isn't guilty. Her act wasn't motivated by bias.

You Didn't Commit An Underlying Crime

Example: Defendant Deane is a landlord who decides to evict Victim Vinnie for repeated, serious violations of apartment noise rules. But Vinnie believes that Deane is simply biased against gay men like Vinnie. Now he believes that Deane is trying to deny Vinnie the basic right of habitation because of his sexual orientation. Vinnie reports Deane for violating CPC §422.6. Is Deane guilty, on these facts?

Conclusion: Deane enforced noise rules because of “repeated, serious violations” of the same and then evicted Vinnie from an apartment. This was not a crime. The commission of some crime is an element of the offense of which Deane was accused. If even one element of an accusation can't be proven, the accused must be acquitted in US courts. Thus, Deane isn't guilty. He didn't commit an underlying crime.

Filing Suit Under The Ralph Civil Rights Act

California's “Ralph Civil Rights Act of 1976”[24] prohibits hate crimes by guaranteeing people in protected classes the right to file a suit against perpetrators of hate crimes as well as those who threaten people in the same protected classes. Monetary awards can be sought for compensatory and punitive damages. Plaintiffs are also permitted to seek attorneys' fees. Additionally, you may seek a civil penalty award of as much as $25,000.

Prevailing in a “Ralph Act” lawsuit requires demonstrating:

  • That the defendant committed an act of violence against you due to your actual or perceived legally protected characteristic; AND,
  • That a substantial motivating reason for the defendant's act was your actual or perceived characteristic; AND,
  • That you were harmed; AND,
  • That the defendant's act was a substantial factor in causing your harm.[25]

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

The State of California treats hates crimes as exceptionally serious offenses. If you're charged with a hate crime, 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] See California Penal Code [CPC] §422.55 (a).

[2] See CPC §422.6 (a).

[3] See CPC §422.6 (c).

[4] See above.

[5] See CPC §422.7.

[6] See CPC §422.7 (a).

[7] See CPC §422.7 (b).

[8] See CPC §422.7 (c).

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

[10] See Endnote 5.

[11] See CPC §19.

[12] See CPC §1170 (h) (1).

[13] See Endnote 5.

[14] See above.

[15] See Endnote 11.

[16] See Endnote 12.

[17] See Endnote 5.

[18] See CPC §422.75 (b).

[19] See above.

[20] See 18 USC [United States Code] §245.

[21] See 42 USC §3631.

[22] See 18 USC §241.

[23] See 18 USC §249.

[24] See “Hate Violence & Civil Rights Fact Sheet” at DFEH.ca.gov. 

[25] See California Civil Jury Instructions 3063 (CACI) (2022).

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