California "Hate Crimes" Laws

Penal Code 422.55 422.6 422.7 422.75 PC

California and federal hate crime laws impose severe punishment for harming, threatening or harassing someone because of the person's race, national origin, disability, religion, sex, gender, or sexual orientation.

That said, it's not uncommon for people to get wrongly accused of hate crimes. This often stems from false accusations, misidentification, or a rush to judgment merely because the alleged victim is different from the accused.

We're a statewide law firm of former prosecutors and former police. Now we've switched sides, and we defend people who have been wrongfully accused of crimes...including hate crimes.

To help you better understand the laws, penalties and legal defenses that pertain to hate crimes, our California criminal defense attorneys¹ will discuss the following:

1. The Legal Definition of a "Hate Crime" in California

1.1. Examples

2. The History of Hate
Crime Legislation

2.1 Federal hate crimes law

2.1.a. The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act

2.2. California hate crimes law

3. Legal Defenses

3.1. The crime was not motivated by bias

3.2. The conduct qualifies as protected "free speech"

4. Penalties, Punishment
and Sentencing

4.1. Penal Code 422.6 PC -- hate crimes

4.2. Penal Code 422.7 PC --
aggravating factors

4.3. Penal Code 422.75 PC --
enhanced penalties

4.3.a. Regarding firearms

4.4. Specific sentencing enhancements

4.5. Regarding probation and parole

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

You may also find helpful information in our related articles on Penal Code 187 Murder; Penal Code 594 PC Vandalism; Misdemeanors; Felonies; California Legal Defenses; California's Three Strikes Law; Penal Code 12022.5 California's Sentencing Enhancement for Personal Use of a Firearm; Penal Code 12022.53 PC California's "10-20-Life ‘Use a Gun and You're Done'" Law; Penal Code 12022.55 PC California's "Drive-By Shooting" Sentencing Enhancement; California Probation Laws; and California Parole Laws.

1. The Legal Definition of a "Hate Crime" in California

California Penal Code 422.55 PC defines a "hate crime" as one "that is committed...in whole or in part...because of one of more of the following actual or perceived characteristics of the victim":

• disability (mental or physical),



• gender (that is, a person's female or male identity and related appearance and behavior whether or not stereotypically associated with the person's natural born male / female characteristics),



• nationality (including citizenship, country of origin, and national origin),



• race or ethnicity (including ancestry, color and ethnic background),



• religion (including all aspects of religious belief, observance and practice),



• sexual orientation (that is, heterosexuality, homosexuality or bisexuality), or



• association with a person or group with one or more of these actual or perceived characteristics.²

"Actual or perceived characteristics" means that it doesn't matter whether the alleged victim actually held a belief or displayed a characteristic listed above (or, instead, whether you as the perpetrator merely thought that that was the case). If you were motivated to commit the crime because of what you believed were the victim's beliefs or characteristics, California law deems the offense to be a hate crime.

The phrase "because of" means that the victim's beliefs or characteristics were a "substantial motivating factor" in bringing about the offense.³

1.1. Examples

Hate crimes typically include acts of

• physical assault,



• vandalism,



• bullying / harassment / verbal abuse, and/or



• threatening phone calls / letters / e-mails.

Although the following examples are very basic, they illustrate the concept of prohibited "bias-motivated" crimes...which are more commonly referred to as hate crimes.

• Bob, a white supremacist, attacks Mike because he is black.



• Joe threatens to kill Steve because he believes Steve is a homosexual.



• Paul burns a "swastika" into the front lawn of a Jewish temple.



• The September 11, 2001 terrorist attacks.

2. The History of Hate Crime Legislation

Both state and federal law prohibit hate crimes. And although both laws are similar, they do have some distinct differences.

2.1. Federal hate crimes law

In 1964, the United States legislature enacted the Federal Civil Rights Law.⁴ This law prohibits willingly injuring, intimidating or interfering with another person by force or threat of force...and all attempts to do so...because of the other person's

• race,



• color,



• religion, or



• national origin,

and because that person was engaged in...or attempting to engage in...a federally protected activity. "Federally protected activities" include (but are not limited to):

• enrolling in or attending a public school,



• enjoying the goods, services, facilities, privileges, advantages, or accommodations of any public place,



• applying for employment,



• voting, or



• serving as a juror.

2.1.a. The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act

Most recently, in 2009, President Obama signed the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act (sometimes referred to as the Matthew Shepard Act) which expands federal hate crime laws.⁵

This expansion was based upon the highly publicized murders of these two individuals that took place in 1998. Matthew Shepard was a gay college student who was tortured and murdered in Wyoming because of his perceived sexual orientation. James Byrd Jr. was an African-American man who was dragged to death by white supremacists behind their pick-up truck in Texas. Both murders were perpetrated based entirely out of hate for the victim's identity.

This federal legislation is more comprehensive in that it

1. no longer requires that the alleged victim is engaging in...or attempting to engage in...a federally protected activity, and



2. includes crimes that are motivated by a person's actual or perceived

• gender,



• sexual orientation, or



• disability.

Federal hate crime prosecution is primarily designed to punish hate crimes in states that do not have their own hate crime legislation.

2.2. California hate crimes law

California also has its own hate crime laws. In fact, in 1987, California adopted similar hate crime legislation to the federal government's.

The California legislature enacted its hate crime law under Penal Code 422.6 PC. At the time, this law prohibited the same conduct as the federal law, but also expanded the scope of protection to include

• ancestry, and



• sexual orientation.⁶

Additionally this law prohibits intimidating or interfering with the free exercise or enjoyment of a person's constitutional rights by knowingly

• defacing,



• damaging, or



• destroying the property of that person

when the intimidation / interference is based on one of the identifying characteristics listed above.⁷

The phrase "constitutional rights" encompasses many rights and privileges. In the most general sense, these rights include the right to be free from criminal activity, which includes the right to be free from violence and threats.

As a defendant accused of violating California hate crime laws, it isn't necessary that you specifically intended to deprive the victim of a specific right in order to be convicted of a hate crime...only that you intend to interfere with these types of protected interests.⁸

Today's California hate crime laws also protect individuals who are victimized based on

• disability,



• gender, and



• their association with a person or group with one or more of these actual or perceived characteristics.⁹

3. Legal Defenses

Fortunately, there are a number of legal defenses to California hate crimes that a skilled California criminal defense attorney can present on your behalf.

As San Francisco criminal defense lawyer Cameron Bowman¹⁰ explains, "The first line of defense is to challenge the underlying conduct. This means that if, for example, you are charged with Penal Code 242 PC California's battery law,¹¹ your lawyer should present the applicable defenses to that charge."

Legal defenses like

• self - defense / defense of others,



• accident, and/or



• false accusations / mistaken identity

should always be explored as a way to avoid criminal liability altogether.¹² But when you can't successfully fight the underlying crime, a couple of the most common defenses to a hate crime include (but are not limited to):

3.1. The offense was not motivated by bias

Let's say, for example, that you are, in fact, guilty of

• battering an elderly individual,



• sexually assaulting a woman, or of



• vandalizing a person's property who is of a different religious denomination than you are.

Just because you have committed a crime against someone whose beliefs or characteristics are protected does not mean you are guilty of a hate crime. If you chose your victim based on his/her vulnerability as an older person, woman, etc...but not based on any type of animosity for that person / group...your act does not qualify as a hate crime.¹³

3.2. Your conduct qualifies as protected "free speech"

Whether or not your conduct is protected by the "free speech" clause of the First Amendment to the United States Constitution will depend on the exact circumstances of your case.

If you conduct consisted exclusively of speech...as opposed to speech in conjunction with an otherwise violent or criminal act...you are not guilty of a violating California's hate crime laws unless

1. the speech itself threatened violence against a specific individual or group protected under these laws, and



2. you had the apparent ability to carry out the threat.¹⁴

An "apparent" ability to carry out a threat means that the threat would reasonably tend to induce fear in the alleged victim.¹⁵ This means that, for example, shouting out a racial epithet to no one in particular, or threatening to shoot a hypothetical person should not subject you to prosecution for a hate crime.

However, if you do threaten a person and do have the apparent ability to carry out the threat, then "free speech" will not serve as a valid defense. This is because the government is entitled to regulate speech when that speech truly poses a danger to society.

If a threat of intent to inflict evil, injury or damage on another person causes the listener to believe that he/she will be subject to physical violence, the threat falls outside First Amendment protection.¹⁶ "Violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact...are entitled to no constitutional protection."¹⁷

4. Penalties, Punishment and Sentencing

Increased penalties associated with "hate crimes" are traditionally justified on the grounds that "...bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest."¹⁸

It's also because of this rationale that federal, state, and local law enforcement agencies invest disproportionate resources into combating these crimes. Many police and prosecuting agencies have their own "hate crimes" divisions so that they can investigate and prosecute these cases with more specialized resources.

Once the police present a hate crime case to the District Attorney, the prosecutor has a variety of options with respect to how to file the charge(s). They can file the offense as a hate crime in and of itself or they can choose to file a hate crime "sentencing enhancement" which increases the penalty for any other criminal offense.

4.1. Penal Code 422.6 PC -- hate crimes

If you are convicted of violating Penal Code 422.6 PC California's hate crime law because you either

1. willingly injured, intimidated, or interfered with another person's constitutional rights or privileges by force or threat of force, or



2. damaged, defaced, or destroyed a person's property,

you face a misdemeanor, punishable by

• up to one year in a county jail,



• a maximum fine of $5,000, and



• a maximum of 400 hours of community service.¹⁹

4.2 Penal Code 422.7 PC -- aggravating factors

Unlike the criminal offense just described above under Penal Code 422.6 PC, Penal Code 422.7 PC is simply a penalty. And although this penalty may not be imposed in connection with a misdemeanor conviction for PC 422.6, it may be imposed in connection with any additional misdemeanors that were committed at the time of the offense.²⁰

This enhancement allows prosecutors to elevate any misdemeanor charge to a felony if

1. you committed the offense based on a "prohibited bias motivation"...that is, based on the victim's belief's or characteristics,



2. you did so with the intention of depriving the individual of his/her constitutional rights...that is, the right to be free from threats, violence, or other crimes, and

a) during the commission of the crime, you had either the present ability to commit a violent injury upon the alleged victim or actually caused him/her physical injury,

b) the crime involved property damage that exceeded $950, or

c) you have been previously convicted of Penal Code 422.6 PC or of a conspiracy to commit a hate crime prohibited by that section. ∗A conspiracy involves an agreement between two or more people to commit an illegal act.

If convicted under this section, you face up to three years in the California state prison and a maximum $10,000 fine.²¹

4.3. Penal Code 422.75 PC -- enhanced penalties

Like PC 422.7 above, Penal Code 422.75 PC is also a sentencing enhancement. This enhancement increases the punishment for any felony that is motivated by a prohibited bias...without respect to any additional intent.

This is what distinguishes this enhancement from the other sections above. Penal Code sections 422.6 and 422.7 PC require that you commit a hate crime in order to interfere with a person's exercise of his/her legal rights.

However, Penal Code 422.75 isn't concerned with your end purpose...acting on a prohibited bias is all that is required in order to obtain a conviction.²²

If sentenced under this code, you face one, two or three years in the state prison in addition to the underlying felony conviction. And if you voluntarily acted in concert with another person, by either

1. personally committing the offense, or



2. aiding and abetting the other person (that is, helping to carry out the offense),

you face an additional two, three or four years in prison.

4.3.a. Regarding firearms

If...during the commission of the offense...you used a firearm, it is likely that the judge will impose the highest of the three possible terms referred to above. And, for that matter, anytime you are convicted of a felony hate crime that isn't specifically punished under one of these provisions, that fact will also likely yield the highest sentence when several options are available.²³

It is also important to note that these enhanced penalties may be combined with the penalties you face under other sentencing enhancements, such as

• Penal Code 12022.5 California's sentencing enhancement for personal use of a firearm,²⁴



• Penal Code 12022.53 PC California's "10-20-life ‘use a gun and you're done'" law,²⁵ and



• Penal Code 12022.55 PC California's "drive-by shooting" sentencing enhancement.²⁶

Finally, you will receive an additional one-year prison term for any and every prior conviction you have which qualifies as a hate crime. However, this final provision only applies if you are not simultaneously being sentenced under California's three strikes law.²⁷

4.4. Specific sentencing enhancements

There are also very specific sentencing enhancements for certain offenses that are committed as hate crimes. Two of the most common include

• Penal Code 190.03 PC which states that a first-degree murder that is committed as a hate crime is punishable by life in the state prison without the possibility of parole,²⁸ and



• Penal Code 594.3 PC which states that any act of Penal Code 594 "vandalism" that is committed as a hate crime at a place of worship or a religious educational institution will be prosecuted as a felony rather than a misdemeanor.²⁹

4.5. Regarding probation and parole

California probation law requires...as a condition of probation for committing a hate crime...that the judge impose a protective order (that is, an order that instructs you to refrain from further acts of violence, threats, stalking, or harassment of the victim or victim's family). Additionally, this protective order may contain any / all appropriate "stay away conditions"...that is, additional conditions that you actually "stay away" from the persons named in the order.³⁰

Similarly, California's parole laws require that ...as a condition of parole...you refrain from further acts of violence, threats, stalking, or harassment of the victim or victim's family. "Stay away" conditions may also be imposed.³¹

And...depending on the circumstances...your probation or parole may include participating in a "sensitivity training" class or participating in one-year of counseling that is designed to reduce your alleged "violent or antisocial behavior".³²

To learn about Nevada hate crime laws, go to our information page about Nevada hate crime laws.

Call us for help...

For questions about California's hate crime laws, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.

We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions about Nevada's hate crime laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.³³

Legal References:

¹Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

²California Penal Code 422.55 PC -- Hate crimes.

See also California penal Code 422.56 -- Definitions. ("For purposes of this title [referring to California hate crimes], the following definitions shall apply: (a) "Association with a person or group with these actual or perceived characteristics" includes advocacy for, identification with, or being on the ground owned or rented by, or adjacent to, any of the following: a community center, educational facility, family, individual, office, meeting hall, place of worship, private institution, public agency, library, or other entity, group, or person that has, or is identified with people who have, one or more of those characteristics listed in the definition of "hate crime" under paragraphs 1 to 6, inclusive, of subdivision (a) of Section 422.55. (b) "Disability" includes mental disability and physical disability as defined in Section 12926 of the Government Code. (c) "Gender" 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. (d) "In whole or in part because of" means that the bias motivation must be a cause in fact of the offense, whether or not other causes also exist. When multiple concurrent motives exist, the prohibited bias must be a substantial factor in bringing about the particular result. There is no requirement that the bias be a main factor, or that the crime would not have been committed but for the actual or perceived characteristic. This subdivision does not constitute a change in, but is declaratory of, existing law under In re M.S.(1995) 10 Cal. 4th 698 and People v. Superior Court (Aishman) (1995) 10 Cal. 4th 735. (e) "Nationality" includes citizenship, country of origin, and national origin. (f) "Race or ethnicity" includes ancestry, color, and ethnic background. (g) "Religion" includes all aspects of religious belief, observance, and practice and includes agnosticism and atheism. (h) "Sexual orientation" means heterosexuality, homosexuality, or bisexuality. (i) "Victim" includes, but is not limited to, a community center, educational facility, entity, family, group, individual, office, meeting hall, person, place of worship, private institution, public agency, library, or other victim or intended victim of the offense.")

³People v. Superior Court (Aishman) (1995) 10 Cal.4th 735, 741. ("They argue the Legislature, in enhancing the punishment for a felony committed "because of" the victim's race, religion or other protected characteristic, intended section 422.75 not to apply unless the prosecution proves the [California hate] crime would not have been committed but for the bias motive. The People have joined issue with real parties on the proper interpretation of "because of," urging us to construe the phrase as requiring proof the bias motive was a "substantial motivating factor" in the commission of the offense. The People express concern lest the causation element of section 422.75 become an impossible burden for the prosecution in hate crimes cases. Because no party petitioned for review on this ground, we need not consider the issue. (Cal. Rules of Court, rule 28(e)(2).) The parties, however, have briefed the issue, they ask us to decide it, the issue is significant, and to decide it now will conserve judicial resources. (Cf. Dix v. Superior Court (1991) 53 Cal.3d 442, 454 [279 Cal.Rptr. 834, 807 P.2d 1063].) In In re M.S., supra, 10 Cal.4th at pages 716-720 we have interpreted identical statutory language ("because of") contained in other hate crimes statutes (sections 422.6 and 422.7) to mean the bias motivation must have been a cause in fact of the offense, and when multiple concurrent causes exist, the bias motivation must have been a substantial factor in bringing about the offense. ( In re M.S., supra, 10 Cal.4th at p. 719.) Our reasoning on this point in In re M.S., supra, applies with equal force to section 422.75.

See also California Jury Instructions, Criminal. CALJIC 16.500 -- Hate crimes. (""Because of" means that the bias motivation must be a cause [in fact] of the offense, whether or not other causes also exist. [When multiple concurrent motives exist, the prohibited bias must be a substantial factor in bringing about the particular result.]

⁴Title 18 of the United States Code, section 245 - 18 U.S.C. § 245.

⁵The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act is found under Title XLVI, Division E of the National Defense Authorization Act for Fiscal Year 2010 that was signed into law on October 28, 2009 by President Barak Obama.

⁶California Penal Code 422.6 PC -- Hate crimes. As enacted in 1987, this section read, ("(a) No person, whether or not acting under color of law, shall by force or threat of force, willfully injure, intimidate or interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States because of the other person's race, color, religion, ancestry, national origin, or sexual orientation. (b) No person, whether or not acting under color of law, shall knowingly deface, damage, or destroy the real or personal property of any other person for the purpose of intimidating or interfering with the free exercise or enjoyment of any right or privilege secured to the other person by the Constitution or laws of this state or by the Constitution or laws of the United States, because of the other person's race, color, religion, ancestry, national origin, or sexual orientation. (c) Any person convicted of violating subdivision (a) or (b) shall be punished by imprisonment in the county jail not to exceed six months, or by a fine not to exceed five thousand dollars ($5,000), or by both the fine and imprisonment; provided, however, that no person shall be convicted of violating subdivision (a) based upon speech alone, except upon a showing that the speech itself threatened violence against a specific person or group of persons and that the defendant had the apparent ability to carry out the threat.")

⁷See same.

⁸People v. MacKenzie (1995) 34 Cal.App.4th 1256, summary, section 1. ("Although the statute [that is, California's hate crime law] has been narrowly construed to require proof of a specific intent to deprive an individual of a right secured by federal or state law, this does not mean that the prosecution must show that the defendant acted with knowledge of particular provisions of state or federal law, or that the defendant was even thinking in those terms. It is sufficient if the right is clearly defined and that the defendant intended to invade interests protected by constitutional or statutory authority. And, even though the practical effect of this standard is that intent can be established simply by proving the defendant deprived the victim of the "right to be free of crime," thus collapsing the specific intent required by the statute into the determination of mens rea for the underlying offense, this does not suggest that the statute punishes, without warning, an offense of which the accused was unaware. In other words, regardless of whether it is a simple matter to prove the necessary intent, California Penal Code § 422.7 requires it and thereby provides adequate notice of what conduct is proscribed.")

⁹California Penal Code 422.6 PC -- Hate crimes. ("("(a) No person, whether or not acting under color of law, shall by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States in whole or in part because of one or more of the actual or perceived characteristics of the victim listed in subdivision (a) of Section 422.55 [California's hate crime law]. (b) No person, whether or not acting under color of law, shall knowingly deface, damage, or destroy the real or personal property of any other person for the purpose of intimidating or interfering with the free exercise or enjoyment of any right or privilege secured to the other person by the Constitution or laws of this state or by the Constitution or laws of the United States, in whole or in part because of one or more of the actual or perceived characteristics of the victim listed in subdivision (a) of Section 422.55. (c) Any person convicted of violating subdivision (a) or (b) shall be punished by imprisonment in a county jail not to exceed one year, or by a fine not to exceed five thousand dollars ($5,000), or by both the above imprisonment and fine, and the court shall order the defendant to perform a minimum of community service, not to exceed 400 hours, to be performed over a period not to exceed 350 days, during a time other than his or her hours of employment or school attendance. However, no person may be convicted of violating subdivision (a) based upon speech alone, except upon a showing that the speech itself threatened violence against a specific person or group of persons and that the defendant had the apparent ability to carry out the threat. (d) Conduct that violates this and any other provision of law, including, but not limited to, an offense described in Article 4.5 (commencing with Section 11410) of Chapter 3 of Title 1 of Part 4, may be charged under all applicable provisions. However, an act or omission punishable in different ways by this section and other provisions of law shall not be punished under more than one provision, and the penalty to be imposed shall be determined as set forth in Section 654.")

¹⁰San Francisco criminal defense attorney Cameron Bowman defends clients throughout Northern California which includes (but is not limited to) San Jose and the Santa Clara, Contra Costra, San Francisco and Alameda County courthouses.

¹¹Penal Code 242 California's battery law. ("Battery defined. A battery is any willful and unlawful use of force or violence upon the person of another.")

¹²Legal defenses such as self -- defense / defense of others, accident, and/or false accusations / mistaken identity are often promising defenses for battery as well as a wide variety of other crimes. Yet these are only a sample of the types of defenses that should be explored in connection with any criminal matter.

¹³California Penal Code 422.55 PC -- Hate crimes. Notes of decisions, 1. Elements of offense. ("If a perpetrator commits a crime wholly or partly because the perpetrator perceives that the victim's disability, gender, or other protected characteristic makes the victim more vulnerable to the commission of the crime, a hate crime has not been committed unless the perpetrator also acts upon some animosity or other bias motivation toward the victim's disability, gender, or other protected characteristic. Op.Atty.Gen. 04-1104 (August 18, 2005).")

¹⁴CALJIC 16.500 -- Hate crimes. ("If you find that a threat of force consisted of speech alone, there can be no crime unless the speech itself threatened violence against a specific person or group of persons, and the [defendant] [person speaking] had the apparent ability to carry out the threat. "Apparent ability" means that the threat must be one that would reasonably tend to induce fear in the alleged victim.")

¹⁵See same.

¹⁶In re M.S. (1995) 10 Cal.4th 698, 710. ("As speech strays further from the values of persuasion, dialogue, and free exchange of ideas, and moves toward willful threats to perform illegal acts, the state has greater latitude to regulate expression. Nonetheless, statutes criminalizing threats must be narrowly directed against only those threats that truly pose a danger to society. A threat is an expression of an intent to inflict evil, injury, or damage on another. When a reasonable person would foresee that the context and import of the words will cause the listener to believe that he or she will be subjected to physical violence, the threat falls outside First Amendment protection.")

¹⁷People v. MacKenzie (1995) 34 Cal.App.4th 1256, 1270.

¹⁸Wisconsin v. Mitchell (1993) 508 U.S. 476, 488.

¹⁹See California Penal Code 422.6 PC, endnote 6, above.

²⁰In re M.S. (1995) 10 Cal.4th 698.

²¹California Penal Code 422.7 PC -- Aggravating factors for punishment. ("Except in the case of a person punished under Section 422.6 [California's hate crime law], any hate crime that is not made punishable by imprisonment in the state prison shall be punishable by imprisonment in the state prison or in a county jail not to exceed one year, by a fine not to exceed ten thousand dollars ($10,000), or by both that imprisonment and fine, if the crime is committed against the person or property of another for the purpose of intimidating or interfering with that other person's free exercise or enjoyment of any right secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States under any of the following circumstances, which shall be charged in the accusatory pleading: (a) The crime against the person of another either includes the present ability to commit a violent injury or causes actual physical injury. (b) The crime against property causes damage in excess of nine hundred fifty dollars ($950). (c) The person charged with a crime under this section has been convicted previously of a violation of subdivision (a) or (b) of Section 422.6, or has been convicted previously of a conspiracy to commit a crime described in subdivision (a) or (b) of Section 422.6.")

²²California Penal Code 422.75 PC – Enhanced penalties for hate crimes. ("(a) Except in the case of a person punished under Section 422.7, a person who commits a felony that is a hate crime or attempts to commit a felony that is a hate crime, shall receive an additional term of one, two, or three years in the state prison, at the court's discretion. (b) Except in the case of a person punished under Section 422.7 or subdivision (a) of this section, any person who commits a felony that is a hate crime, or attempts to commit a felony that is a hate crime, and who voluntarily acted in concert with another person, either personally or by aiding and abetting another person, shall receive an additional two, three, or four years in the state prison, at the court's discretion. (c) For the purpose of imposing an additional term under subdivision (a) or (b), it shall be a factor in aggravation that the defendant personally used a firearm in the commission of the offense. Nothing in this subdivision shall preclude a court from also imposing a sentence enhancement pursuant to Section 12022.5, 12022.53, or 12022.55, or any other law. (d) A person who is punished pursuant to this section also shall receive an additional term of one year in the state prison for each prior felony conviction on charges brought and tried separately in which it was found by the trier of fact or admitted by the defendant that the crime was a hate crime. This additional term shall only apply where a sentence enhancement is not imposed pursuant to Section 667 or 667.5. (e) Any additional term authorized by this section shall not be imposed unless the allegation is charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact. (f) Any additional term imposed pursuant to this section shall be in addition to any other punishment provided by law. (g) Notwithstanding any other provision of law, the court may strike any additional term imposed by this section if the court determines that there are mitigating circumstances and states on the record the reasons for striking the additional punishment.")

See also People v. Superior Court (Aishman) (1995) 10 Cal.4th 735,740. ("Unlike the language of sections 422.6 and 422.7 [California's hate crime laws], that contained in section 422.75 does not admit of a specific intent requirement. Section 422.6 punishes "willfully" injuring, intimidating, interfering with, oppressing or threatening another person in the exercise of legal rights; section 422.7 prohibits doing certain acts "for the purpose of" intimidating or interfering with another person's exercise of legal rights. Both statutory formulations import the concept of doing an act with the intent to achieve a further consequence, i.e., to deprive the victim of his or her legal rights. (See People v. Daniels (1975) 14 Cal.3d 857, 860 [122 Cal.Rptr. 872, 537 P.2d 1232] [defining general and specific intent].) In contrast, section 422.75 simply increases the punishment for a felony motivated by prohibited bias, without reference to the perpetrator's seeking any further consequence.")

²³California Penal Code 422.76 -- Aggravating circumstances. ("Except where the court imposes additional punishment under Section 422.75 or in a case in which the person has been convicted of an offense subject to Section 1170.8, the fact that a person committed a felony or attempted to commit a felony that is a hate crime shall be considered a circumstance in aggravation of the crime in imposing a term under subdivision (b) of Section 1170.")

²⁴Penal Code 12022.5 PC California's sentencing enhancement for personal use of a firearm. ("(a) Except as provided in subdivision (b), any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense. (b) Notwithstanding subdivision (a), any person who personally uses an assault weapon, as specified in Section 12276 or Section 12276.1, or a machinegun, as defined in Section 12200, in the commission of a felony or attempted felony, shall be punished by an additional and consecutive term of imprisonment in the state prison for 5, 6, or 10 years. (c) Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section. (d) Notwithstanding the limitation in subdivision (a) relating to being an element of the offense, the additional term provided by this section shall be imposed for any violation of Section 245 if a firearm is used, or for murder if the killing is perpetrated by means of shooting a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict great bodily injury or death. (e) When a person is found to have personally used a firearm, an assault weapon, a machinegun, or a .50 BMG rifle, in the commission of a felony or attempted felony as provided in this section and the firearm, assault weapon, machinegun, or a .50 BMG rifle, is owned by that person, the court shall order that the firearm be deemed a nuisance and disposed of in the manner provided in Section 12028. (f) For purposes of imposing an enhancement under Section 1170.1, the enhancements under this section shall count as one, single enhancement.")

²⁵Penal Code 12022.53 PC California's 10-20-life "use a gun and you're done" law. ("(a) This section applies to the following felonies: (1) Section 187 (murder). (2) Section 203 or 205 (mayhem). (3) Section 207, 209, or 209.5 (kidnapping). (4) Section 211 (robbery). (5) Section 215 (carjacking). (6) Section 220 (assault with intent to commit a specified felony). (7) Subdivision (d) of Section 245 (assault with a firearm on a peace officer or firefighter). (8) Section 261 or 262 (rape). (9) Section 264.1 (rape or sexual penetration in concert). (10) Section 286 (sodomy). (11) Section 288 or 288.5 (lewd act on a child). (12) Section 288a (oral copulation). (13) Section 289 (sexual penetration). (14) Section 4500 (assault by a life prisoner). (15) Section 4501 (assault by a prisoner). (16) Section 4503 (holding a hostage by a prisoner). (17) Any felony punishable by death or imprisonment in the state prison for life. (18) Any attempt to commit a crime listed in this subdivision other than an assault. (b) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply. (c) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years. (d) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 12034, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.")

²⁶Penal Code 12022.55 PC California's "drive-by shooting" enhancement. ("("Notwithstanding Penal Code Section 12022.5, any person who, with the intent to inflict great bodily injury or death, inflicts great bodily injury, as defined in Section 12022.7, or causes the death of a person, other than an occupant of a motor vehicle, as a result of discharging a firearm from a motor vehicle in the commission of a felony or attempted felony, shall be punished by an additional and consecutive term of imprisonment in the state prison for 5, 6, or 10 years.")

²⁷See California Penal Code 422.75 PC – Enhanced penalties for California hate crimes, endnote 22, above.

²⁸California Penal Code 190.03 PC -- Life imprisonment without parole; hate crimes. ("(a) A person who commits first-degree murder that is a hate crime shall be punished by imprisonment in the state prison for life without the possibility of parole. (b) The term authorized by subdivision (a) shall not apply unless the allegation is charged in the accusatory pleading and admitted by the defendant or found true by the trier of fact. The court shall not strike the allegation, except in the interest of justice, in which case the court shall state its reasons in writing for striking the allegation. (c) For the purpose of this section, "hate crime" has the same meaning as in Section 422.55. (d) Nothing in this section shall be construed to prevent punishment instead pursuant to any other provision of law that imposes a greater or more severe punishment.")

²⁹California Penal Code 594.3 PC -- Vandalism; church, synagogue, mosque, temple, building of religious educational institution or other place of worship; punishment if based on racial or religious prejudice. ("(a) Any person who knowingly commits any act of vandalism to a church, synagogue, mosque, temple, building owned and occupied by a religious educational institution, or other place primarily used as a place of worship where religious services are regularly conducted or a cemetery is guilty of a crime punishable by imprisonment in the state prison or by imprisonment in the county jail for not exceeding one year. (b) Any person who knowingly commits any act of vandalism to a church, synagogue, mosque, temple, building owned and occupied by a religious educational institution, or other place primarily used as a place of worship where religious services are regularly conducted or a cemetery, which is shown to have been a hate crime and to have been committed for the purpose of intimidating and deterring persons from freely exercising their religious beliefs, is guilty of a felony punishable by imprisonment in the state prison. (c) For purposes of this section, "hate crime" has the same meaning as Section 422.55 [California's hate crime law].")

³⁰California Penal Code 422.85 PC -- Protective orders; conditions of probation. ("(a) In the case of any person who is convicted of any offense against the person or property of another individual, private institution, or public agency, committed because of the victim's actual or perceived race, color, ethnicity, religion, nationality, country of origin, ancestry, disability, gender, or sexual orientation [that is, a California hate crime], including, but not limited to offenses defined in Section 302, 423.2, 594.3, 11411, 11412, or 11413, or for any hate crime, the court, absent compelling circumstances stated on the record, shall make an order protecting the victim, or known immediate family or domestic partner of the victim, from further acts of violence, threats, stalking, or harassment by the defendant, including any stay-away conditions the court deems appropriate, and shall make obedience of that order a condition of the defendant's probation. In these cases the court may also order that the defendant be required to do one or more of the following as a condition of probation: (1) Complete a class or program on racial or ethnic sensitivity, or other similar training in the area of civil rights, or a one-year counseling program intended to reduce the tendency toward violent and antisocial behavior if that class, program, or training is available and was developed or authorized by the court or local agencies in cooperation with organizations serving the affected community. (2) Make payments or other compensation to a community-based program or local agency that provides services to victims of hate violence. (3) Reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant's acts. (b) Any payments or other compensation ordered under this section shall be in addition to restitution payments required under Section 1203.04, and shall be made only after that restitution is paid in full.")

³¹California Penal Code 3053.4 PC -- Hate crimes; conditions of parole. ("In the case of any person who is released from prison on parole or after serving a term of imprisonment for any felony offense committed against the person or property of another individual, private institution, or public agency because of the victim's actual or perceived race, color, ethnicity, religion, nationality, country of origin, ancestry, disability, gender, or sexual orientation, including, but not limited to, offenses defined in Section 422.6, 422.7, 422.75, 594.3, or 11411, the parole authority, absent compelling circumstances, shall order the defendant as a condition of parole to refrain from further acts of violence, threats, stalking, or harassment of the victim, or known immediate family or domestic partner of the victim, including stay-away conditions when appropriate. In these cases, the parole authority may also order that the defendant be required as a condition of parole to complete a class or program on racial or ethnic sensitivity, or other similar training in the area of civil rights, or a one-year counseling program intended to reduce the tendency toward violent and antisocial behavior if that class, program, or training is available and was developed or authorized by the court or local agencies in cooperation with organizations serving the affected community.")

³²See same.

³³Please feel free to contact our Las Vegas Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's hate crime laws. Our Nevada law offices are located in Reno and Las Vegas.

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