Penal Code 422.7 PC – “Hate Crime” Penalties for Misdemeanor Offenses in California

Penal Code 422.7 PC is one of California’s hate crime statutes that imposes an additional penalty on an accused whenever:

1. he is convicted of a California misdemeanor, and
2. that misdemeanor is also proven to be a hate crime.

In this article, we will quote the full language of the statute, and then provide legal analysis below. The statute reads that:

422.7. 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.

Please note that 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 of when PC 422.7 penalties are imposed are:

• 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.

If a person commits a stand-alone hate crime in California, per Penal Code 422.6, the crime is charged as a misdemeanor.

But, per Penal Code 422.7, if a person commits a misdemeanor that is also proven to be a hate crime, then 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.

If charged as a misdemeanor, the crime is punishable by imprisonment in the county jail for up to one year.

If charged as a felony, the offense is punishable by:

• imprisonment in the California state prison for up to three years, and/or
• a fine of up to $10,000.

Please note that PC 422.75 is another hate crime penalty enhancement statute that sets forth additional penalties for hate crimes that are also felonies.

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?

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 in order to legally impose the penalties under PC 422.7:

1. the defendant committed and was convicted of a California misdemeanor,
2. the offense committed meets the legal definition of a hate crime set forth in PC 422.55,
3. the accused committed the hate crime in order to interfere with the alleged victim’s exercise of his/her legal rights,² and
4. 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

For additional help…

If you or someone you know has been accused of a crime that is both a misdemeanor and meets the definition of a hate crime, per Penal Code 422.55 PC, we invite you to contact us for a consultation. We can be reached 24/7.

For information on Nevada’s hate crime laws, please see our article on: Nevada “Hate Crime” Laws (NRS 193.1675).

---

Legal References: