California Penal Code § 422.55 PC defines hate crime as a criminal act committed in whole or in part because of the victim’s actual or perceived:
- disability,
- gender,
- nationality,
- race or ethnicity,
- religion,
- sexual orientation, or
- association with a person or group with one or more of these actual or perceived characteristics.
Examples
- Kevin threatens violence against his neighbors, who are a homosexual male couple, because of their sexual orientation.
- Desmond hates the Catholic religion and decides to damage church property during a mass.
Penalties
Injuring or threatening another person because of a characteristic in PC 422.55 is a misdemeanor offense under California Penal Code 422.6. The potential penalties include:
- misdemeanor (summary) probation,
- up to one year in county jail, and/or
- a fine of up to $5,000.
Otherwise, any misdemeanors and felonies committed as hate crimes carry an enhanced sentence under Penal Code 422.7 and Penal Code 422.75. Enhanced sentences include longer terms of incarceration and greater fines.
Our California criminal defense attorneys discuss the following hate crime topics in this article:
- 1. “Hate Crime” Defined
- 2. Actual characteristics
- 3. Perceived characteristics
- 4. Hate crime motivation
- 5. Underlying crimes
- 6. Penalties
1. “Hate Crime” Defined
Penal Code 422.55 PC is the California statute that sets forth the definition of a California “hate crime.”
According to this statute, 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:
- (1) Disability.
- (2) Gender.
- (3) Nationality.
- (4) Race or ethnicity.
- (5) Religion.
- (6) Sexual orientation.
- (7) Association with a person or group with one or more of these actual or perceived characteristics.”1
Hate crimes motivated by actual or perceived protected characteristics carry enhanced penalties.
2. Actual Characteristics
“Actual” means that a person acts with some type of ill will, or bias motivation, because of the victim’s real status regarding disability, gender, nationality, etc.2 In other words, a person performs some offense simply on account of that person’s characteristic.
3. Perceived Characteristics
“Perceived” means that a person can commit a hate crime in California even if it turns out that the victim did not have one of the characteristics listed in Penal Code 422.55. This is true as long as the defendant believed, or “perceived,” that they did.3
Consider, for example, the case where Ronald commits an armed robbery against a couple whom he believes to be Jewish. He yells anti-Jewish slurs during the robbery, but it turns out that the couple is not Jewish.
Nonetheless, because Ronald perceived the couple to be Jewish, he may be charged not only under Penal Code 211 PC California’s robbery law, but also under California’s hate crimes statute.
4. Hate Crime Motivation
Under California hate crimes law, an accused is considered to have committed a crime “because of” the victim’s protected characteristic if they acted either wholly or partially because of that characteristic.4
To prove that this is the case, a prosecutor must prove that these elements of the jury instructions:
- the defendant was biased against the victim because they had (or they perceived them to have) one of the characteristics listed in PC 422.55, and
- that bias is what caused them to commit the alleged crime.5
Note that this bias does not have to be the only factor motivating the alleged crime. If the defendant had more than one motivation, they can still face hate crime charges as long as the bias was a substantial part of their actions.6
Consider, for example, the case where Daniel’s wife is raped by several men of Mexican descent. Daniel has often made racist comments about Mexicans even before this and has a white supremacist tattoo. He and several friends round up the Mexican men they believe committed the rape and beat them severely.
Daniel is charged with battery causing serious bodily injury, per PC 243d. Because bias against people of Mexican descent was a substantial factor motivating the attack, his crime meets the legal definition of a hate crime in Penal Code 422.55 PC – even though it was not the only factor (revenge for his wife’s rape was another).7
A person cannot be convicted of a hate crime unless there is some type of underlying offense.
5. Underlying Crimes
A person cannot be convicted of a hate crime unless there is some type of underlying offense.
This means that while a person may show ill will or hatred towards a specific race, there is no hate crime unless that person commits some unlawful act against a person of the given race.
6. Penalties
The penalties for a hate crime will ultimately depend on the facts of a given case.
If a person injures or threatens another because of a characteristic in PC 422.55, then they can be charged with a misdemeanor under Penal Code 422.6 PC. The potential penalties for a hate crime under this statute include:
- misdemeanor (summary) probation,
- up to one year in county jail,
- a fine of up to $5,000, and/or
- up to 400 hours of community service.8
Please note though that a defendant will receive enhanced penalties if:
- they committed a misdemeanor and a prosecutor can show that the offense was committed as a hate crime,9 or
- they committed a felony and a prosecutor can show that the offense was committed as a hate crime.10
Enhanced penalties mean:
- longer jail times,
- possible imprisonment in the California state prison, and
- greater fines.
For information on Nevada’s hate crime laws, please see our article on Nevada “Hate Crime” Laws (NRS 193.1675).
Legal References:
- California Penal Code 422.55 PC.
- See same. See also 88 Cal. Ops. Cal. Atty. Gen. 141.
- See same.
- California Penal Code 422.55 PC.
- Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 1350:
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant used force to willfully interfere with[, or injure, intimidate, or oppress,] another person’s free exercise or enjoyment of the right [or privilege] to <describe the right allegedly infringed, e.g., “be free from violence or bodily harm”>, established by the law or Constitution of California or
the United States;
2. The defendant 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/one or more of these) actual or perceived characteristic[s]);
AND
3. The defendant intended to interfere with the other person’s legally protected right [or privilege]. Someone commits an act willfully when he or she does it willingly or on purpose. The defendant acted in whole or in part because of the actual or perceived characteristic[s] of the other person if:
1. The defendant was 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/one or more of these) actual or perceived characteristic[s]);
AND
2. The bias motivation caused the defendant to commit the alleged acts. - See same.
- Please note that this example is based on the facts of People v. Superior Court (Aishman), (1995) 10 Cal.4th 735.
- California Penal Code 422.6 PC.
- California Penal Code 422.7 PC.
- California Penal Code 422.75 PC.