Penal Code 422.7 PC is one of California’s hate crime statutes that imposes an additional penalty whenever:
- you are convicted of a California misdemeanor, and
- that misdemeanor is also proven to be a hate crime.
A “hate crime” as defined in Penal Code 422.55 means a criminal act committed because of one of the following characteristics of the victim:
- disability,
- gender,
- nationality,
- race or ethnicity,
- religion,
- sexual orientation,
- association with a person or group with one or more of these actual or perceived characteristics.
Examples
- Max commits misdemeanor assault (under PC 240) on a bar patron because of his religious affiliation.
- Kelly, an anti-immigrant activist, effects a misdemeanor battery (under PC 242) by pushing a pro-immigrant supporter at a peace rally.
- Monique perpetrates misdemeanor trespass (under PC 602) while throwing rocks at her neighbor’s window because of his sexual orientation.
Penalties
If you commit a misdemeanor also proven to be a hate crime, the misdemeanor becomes a wobbler offense. This means the crime can be charged as either a misdemeanor or a felony, at the prosecutor’s discretion.
Misdemeanor as a hate crime | California penalties per PC 422.7 |
As a misdemeanor | Up to 1 year in jail |
As a felony | 16 months, 2 years, or 3 years in jail and/or up to $10,000 |
Our California criminal defense attorneys will highlight the following in this article:
- 1. When is there an enhanced penalty for a California hate crime?
- 2. What are the additional penalties under PC 422.7?
- 3. What happens with a stand-alone hate crime under Penal Code 422.6?
- 4. What is Penal Code 422.75 and what are the enhanced penalties?
- Additional Resources
1. When is there an enhanced penalty for a California hate crime?
Penal Code 422.7 PC is one of California’s hate crime statutes that imposes an additional penalty on an accused whenever:
- they are convicted of a California misdemeanor, and
- that misdemeanor is also a hate crime.1
In particular, a prosecutor must prove the following “elements” of the jury instructions in order to legally impose the penalties under PC 422.7:
- the defendant committed and was convicted of a California misdemeanor,
- the offense committed meets the legal definition of a hate crime set forth in PC 422.55,
- the accused committed the hate crime in order to interfere with the alleged victim’s exercise of his/her legal rights,2 and
- one of the following is true:
- the misdemeanor either caused an actual physical injury or occurred when the defendant had the present ability to commit a violent injury against the victim,
- the misdemeanor caused property damage costing more than nine hundred $950, or
- the accused had been previously convicted of a hate crime under Penal Code 422.6 PC (stand-alone hate crime).3
2. What are the additional penalties under PC 422.7?
If a prosecutor successfully proves the above, then he can charge the misdemeanor/hate crime as a wobbler.
A wobbler offense is one that can be charged as either a misdemeanor or a felony, depending on:
- the facts of the case, and
- the defendant’s criminal history.
If charged as a misdemeanor, the crime is punishable by imprisonment in the county jail for up to one year.4 Note that in lieu of jail time a judge may award a defendant with misdemeanor or summary probation.
If charged as a felony, the offense is punishable by:
- imprisonment in the California state prison for 16 months, two years, or three years, and/or
- a fine of up to $10,000.5
Note that in lieu of felony prison time a judge may award a defendant with felony or formal probation.
3. What happens with a stand-alone hate crime under Penal Code 422.6?
Penal Code 422.6 PC is one of California’s hate crime statutes that makes it a crime for a person to interfere with another’s civil rights simply because of that person’s:
- disability,
- gender,
- nationality,
- race or ethnicity,
- religion,
- sexual orientation, and/or
- association with a person or group with one or more of these actual or perceived characteristics.
A person charged with only PC 422.6 is said to be accused of a “stand-alone hate crime.” This is because while a prosecutor may be able to prove that the accused committed a hate crime, he cannot show that the defendant violated another criminal law.
This is in contrast to the situation under PC 422.7, in which a prosecutor can show that the accused committed a hate crime that was also a misdemeanor.
If a defendant is convicted under PC 422.6 for a stand-alone hate crime, he may be charged with a misdemeanor. The crime is punishable by:
- misdemeanor (summary) probation,
- up to one year in county jail,
- a fine of up to $5,000, and/or
- 400 hours of community service.6
4. What is Penal Code 422.75 and what are the enhanced penalties?
Penal Code 422.75 is the California statute that provides for an enhanced sentence for any hate crime that is also a felony under California law.7
If a jury decides that a defendant committed a felony, and that felony also qualifies as a hate crime, then the defendant may receive an additional prison sentence of:
- one year,
- two years, or
- three years.8
Additional Resources
If you are a hate crime victim, refer to the following:
- Victim Connect Resource Center – provides information, referrals, and support for victims of crime in the United States.
- The Matthew Shepard Foundation – seeks to foster a more caring and just world, focusing on LGBTQ+ equality, hate crime prevention, and supporting victims and their families.
- The Human Rights Campaign – the largest LGBTQ+ advocacy group and political lobbying organization in the United States, promoting equality and challenging discrimination.
- Safe Horizon – a victim assistance nonprofit that provides support, prevents violence, and promotes justice for victims of crime and abuse, their families and communities.
- The Department of Justice Hate Crimes Enforcement and Prevention Website – offers resources and information on the DOJ’s efforts to investigate and prosecute hate crimes.
Legal References:
- California Penal Code 422.7 PC. This code section states:
Except in the case of a person punished under Section 422.6 , any hate crime that is not made punishable by imprisonment in the state prison shall be punishable by imprisonment in a county jail not to exceed one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or 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. - This element requires proof of the accused’s intent. See People v. MacKenzie (1995), 34 Cal. App. 4th 1256.
- California Penal Code 422.7 PC. Judicial Council of California Criminal Jury Instructions CALCRIM 1355.
If you find the defendant guilty of <insert offense[s]> [as charged in Count[s] ], you must then decide whether the People have proved the additional allegation that the crime[s] committed by the defendant (was a/were) hate crime[s]. [You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime.] To prove this allegation [for each crime], the People must prove that:
1. When committing that crime, the defendant intended to interfere with [or intimidate] another person’s free exercise or enjoyment of the right [or privilege] to <describe the right raised by the evidence>, established by the law or Constitution of California or the United States;
[AND]
2. The defendant 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/one or more of these) actual or perceived characteristic[s])(;/.)
[AND
<Alternative 3A – caused physical injury>
[3. When committing that crime, the defendant caused an actual physical injury or had the ability at that time to cause a violent injury.]
<Alternative 3B – caused property damage>
[3. The defendant caused property damage in excess of $950.]]
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.
- California Penal Code 1170h PC. Note that PC 422.75 sets forth additional penalties for hate crimes that are also felonies. Stand-alone hate crimes in California per Penal Code 422.6 are misdemeanors.
- California Penal Code 422.6 PC.
- California Penal Code 422.75 PC.
- See same.