Penal Code § 422.75 PC – “Hate Crime” Penalty Enhancement for Felonies

Penal Code § 422.75 PC is one of California’s hate crime statutes that imposes an additional penalty (sentencing enhancement) on an accused whenever

1. he or she is convicted of a felony, and
2. that felony is also proven to be a hate crime.

The language of the statute reads as follows:

422.75. (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.

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 422.75 penalties are imposed are:

• Martha, an anti-Semitic, commits felony arson (under PC 451) by setting fire to a building she knows is owned by a Jewish family.
• Miguel effects felony rape (under PC 261) of a woman solely because he knows she is a lesbian.
• Desmond perpetrates felony grand theft (under PC 487) by taking his neighbor’s stereo equipment and antiques solely because the neighbor is disabled.

If a person commits a stand-alone hate crime in California, per Penal Code 422.6, the crime is charged as a misdemeanor. Further, the offense is punishable by up to one year in county jail.

But, per Penal Code 422.75, if a person is convicted of a felony that is also proven to be a hate crime, then the defendant will receive an additional sentence in the California state prison of:

• one year,
• two years, or
• three years.

And, if an accused commits a felony hate crime with another person, he could be punished with an additional:

• two,
• three, or
• four years

in state prison.

Please note that PC 422.7 PC is another hate crime penalty enhancement statute that sets forth additional penalties for hate crimes that are also misdemeanors.

Our California criminal defense attorneys will highlight the following in this article:

• 1. When is there an enhanced penalty for a California hate crime under Penal Code 422.75?
• 2. What are the additional penalties under PC 422.75?
• 3. What happens with a stand-alone hate crime under Penal Code 422.6?
• 4. What is Penal Code 422.7 and what are the enhanced penalties?

1. When is there an enhanced penalty for a California hate crime under Penal Code 422.75?

Penal Code 422.75 PC imposes an additional penalty on an accused whenever:

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

Another way to state this is that a defendant will receive enhanced penalties, under PC 422.75, when he commits a felony that is motivated by prohibited bias (per Penal Code 422.55).²

Please note that PC 422.75 is triggered only if this bias motivation is a factual cause of the felony. If there is more than one cause, or motivation, for the felony, then the statute comes into play only if the bias motivation is a substantial factor in bringing about the offense.³

2. What are the additional penalties under PC 422.75?

If a person is convicted of a felony that is also proven to be a hate crime, then per Penal Code 422.75, the defendant will receive an additional sentence in the California state prison of:

• one year,
• two years, or
• three years.

And, if a defendant is convicted of a felony hate crime with another person, regardless of whether he

1. personally committed the offense, or
2. aided and abetted the other person,

the felony hate crime sentencing enhancement increases to an additional:

• two years,
• three years, or
• four years in prison.⁴

Note that in lieu of felony prison time a judge may award a defendant with felony or formal probation.

Please also note that if an accused is convicted of committing a felony hate crime, and it is alleged that the accused personally used a firearm to commit the offense, then PC 422.75 says that this allegation will be an aggravating factor in terms of sentencing.⁵

An aggravating factor means a judge will impose a harsher sentence in comparison to an offense where the defendant did not use a firearm.

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 422.75, in which a prosecutor can show that the accused committed a hate crime that was also a felony.

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 422.7 and what are the enhanced penalties?

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

• he is convicted of a California misdemeanor, and
• that misdemeanor is also a hate crime.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.⁸

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 $10,000.⁹

For additional guidance…

If you or someone you know has been accused of a crime that is both a felony and meets the definition of a hate crime, per Penal Code 422.55 PC, we invite you to contact us for a free 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).

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