Hate Crimes Law & Defense
PC 422.7, 422.6 & 422.75
A Hate Crime is a crime that is committed by the defendant who was motivated to commit the crime by hate towards a victim because of the victim's race, religion, sexual orientation, disability, gender, or nationality. A hate crime allegation is an enhancement to another crime.
For example, if the defendant assaults another person because of the other person's race the underlying crime is assault with the enhancement of a hate crime allegation that is added to the assault crime to increase the penalty for the defendant.
California Hate Crime laws and enhancements are found at California penal code sections 422.6(a), 422.7, and 422.75.
In order for the district attorney to prove that the defendant committed a hate crime, he or she will need to prove all three of the following factors:
The defendant willfully interfered with,, or intimidated, the victim's right or privilege that is established by law (such as the right to attend school, travel, attend church, protest, etc.),
The defendant did so because of the victim's gender, race, ethnicity, religion, nationality, disability, or sexual orientation, and,
The defendant intended to interfere with the victim's legally protected right, or injured the person or property of the victim.
Note: It is not a defense for the defendant to show that the victim did not belong to one of the protected groups so long as the district attorney can prove that the defendant actually believed that the victim belonged to a protected group at the time the crime was committed.
If a defendant is accused of having a motivation to commit a crime against another person because of the other person's race, ethnicity, gender, sexual orientation, etc, but also had other motivation to commit a crime against that other person, then the district attorney must prove that the discriminatory factor was the substantial reason for the crime.
For gender discrimination, the defendant may be charged with a hate crime under PC 422.6 or 422.7 based on the perceived gender, or the other person's gender identity (cross dressers, transvestite, transsexual, etc.).
Note: Sexual orientation means heterosexuality, homosexuality, or bisexuality. For example, if the defendant assault another person because he believes the other person is a female, but the other person is not actually a female, the defendant may still be charged with a hate crime under PC 422.6 or 422.7.
Racial Discrimination: For racial discrimination, the word race includes ancestry, color, and ethnic background.
In addition to being charged with a hate crime for any actual injury to a person or property, a defendant may be found guilty of a hate crime where he or she interferes with the Civil Rights of an alleged victim.
For example, if a defendant interferes with a person's property or a right, such as the right to vote, by intimidation, fear, or threats, and the reason for the defendant's interference with another person right is based on race, gender, etc, then the defendant may be charged with a hate crime pursuant to PC 422.6 or 422.7, even if no actual physical injury was suffered by the hate crime victim.
Hate Crime Penalties
A hate crime criminal charge may be filed as a misdemeanor or as a felony. Whether the district attorney files misdemeanor or felony hate crime enhancements depends largely on the facts of the case and the defendant's criminal history.
Per PC 422.6: There is a hate crime criminal enhancement for 'any interference with Civil Rights.' The crime is charged as a misdemeanor and the defendant may serve up to 180 days in the county jail upon any conviction.
Per PC 422.7: There is a hate crime criminal enhancement that may be charged as either a felony or as a misdemeanor (wobbler). If found guilty of a hate crime under 422.7 as a felony the defendant may face up to three years in prison; this prison time is in addition to any possible jail time for any underlying crime such as battery, assault, etc. Where PC 422.7 is charged as a misdemeanor the defendant may face up to a one year in the county jail; again, this is in addition to any punishment levied against the defendant for the underlying crime, if any.
In addition to the possible prison or jail sentence listed above, if found guilty of a hate crime under PC 422.6, 422.7, or 422.75, the defendant may lose his or her professional license, be ordered to pay fines, restitution, ordered to attend anger management classes, and more.
The most common defense to a hate crime charge is insufficient evidence to prove that the defendant was motivated to commit a crime against the victim because of the victim's race, sexual orientation, gender, ethnicity, etc. Other defenses include a defense to the underlying crime such as insufficient evidence to prove guilt, statute of limitations, self-defense, defense of others, intoxication, and more. The facts of the underlying charge will determine which defense is best for the whole case.
If you or a loved one is charged with a California hate Crime enhancement, contact our criminal defense attorneys today. There is no charge to speak with one of our qualified criminal defense attorneys about PC 422.6, 422.7, or 422.75.. Our criminal defense attorneys are available seven days week. Call today!.
Quick Legal Reference
Crime: Hate Crimes
Code: PC 422.7 (CalCrim No. 1350-1355)
Wobbler: Yes. PC 422.7 is a wobbler crime. This means that the crime may be charged as a felony or as a misdemeanor.
Incarceration: Felony PC 422.7 jail sentence range: 16 months, 2 or 3 years jail. Misdemeanor jail sentence up to 1 year.
Probation: Probation may be available in both felony and misdemeanor PC 422.7 cases (assuming that other crimes or enhancements that might bar a probation sentence are not present). Whether or not a probation sentence is offered by the District Attorney, or granted by the court, depends on several factors, including the defendant's criminal history and the facts of the case.
Work Release or House Arrest: In some cases, a probation sentence can include actual in-custody county jail, house arrest (electronic monitoring), or work release (or some combination of these penalties); however, most in-custody jail sentence orders that are required as a terms of probation are much shorter than the maximum jail sentence.
PC 1170(h)): Yes. PC 422.7 is subject to PC 1170(h) sentencing. This means that any jail or prison sentence may be:
Split (half in-custody / half out-of-custody)
Suspended (possibly never served)
Served in county jail (not state prison)
Strike: PC 422.7 is not a strike offense listed in California's Three Strikes law.
Credits: 50% good conduct credits available.
CIMT: PC 422.7 is likely a crime involving moral turpitude, which means that an arrest or conviction could lead to the following:
Professional Licensing problems
Impeachment on credibility
Firearms: Felony PC 422.7 convictions prohibit a defendant from owning or possessing a firearm..
Bail: $50,000 (San Bernardino County)
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