California statutes recognize that some criminal offenses are more severe where a victim is targeted because of their gender, race, disability, religion, sexual orientation, ethnicity, and nationality. The offenses are called hate crimes. It would be best if you obeyed the regulations criminalizing hate crimes. If you face hate crime accusations, you risk severe penalties. So, you need a lawyer to assist you in understanding the intricacies of the laws and procedures involved in hate crimes to build solid evidence and prevent a conviction.

California Hate Crimes At a Glance

Your motivation for committing a criminal offense influences your sentence. When you single out a victim because you identify the plaintiff with a particular characteristic, you commit a hate offense. Hate crimes can be stand-alone offenses prescribed under PEN 422.6 or a sentence enhancement that increases your misdemeanor or felony penalties under PEN 422.7 and 422.75.

PEN 422.55 is the statute that legally outlines hate crimes. Per the statute, it is illegal to engage in criminal activity against an individual after singling them out based on their actual or apparent:

  • Gender
  • Sexual orientation
  • Disability
  • Religion
  • Nationality
  • Ethnicity
  • Race
  • Link with an individual or group with these characteristics

The questions you are likely to have about these statutes are:

  • What does “actual attributes or characteristics” mean?
  • What are “perceived or apparent” attributes?
  • The explanation of a crime being perpetrated “because” of an attribute
  • Whether the defendant must engage in a baseline offense to face formal criminal charges

Actual Attributes or Characteristics

The term actual attributes signifies that you, the accused, act in a manner driven by biased motivation or ill will regarding the plaintiff’s gender, disability, or other attributes. Precisely put, you engage in hate incidents when you participate in a violation because of someone’s actual characteristics and not perceived attributes. The crime is about you singling out a target because of who they are.

Perceived Attributes

You are guilty of a hate incident under PEN 422.55, even if you discover later that the plaintiff lacked the attributes that led you to single them out. The prosecutor focuses on demonstrating that you assumed or perceived that the plaintiff had particular attributes that gave you the biased motivation to commit a hate offense against them. Therefore, even if you later discover that the victim is not associated with the group or has the characteristics you perceived, your actions are still hate-motivated.

Hate-fueled crimes can happen not only because of actual attributes but also because of your erroneous beliefs. So, even an inaccurate perception of a plaintiff can attract PEN 422.55 violation charges.

For instance, you target a neighbor whom you believe to be Jewish and rob them of their money and jewelry. While leaving the robbery scene, you yell anti-Jewish insults. Later, you are arrested, but you later realize that your perception of the neighbor being Jewish was erroneous. Even though your perception of the neighbor’s race was wrong, you will still face hate crime or incident charges on top of the PEN 211 violation.

You Engaged in the Crime Because of Protected Attributes

Before you face hate incident charges, it should be evident that you engaged in the act solely or partly because of the plaintiff’s protected attributes like disability, gender, or sexual orientation. Hate offenses are not only founded on the accuser’s perceived or actual attributes. Even your biased motivation against the victim owing to their attributes can push you to engage in the crime.

When proving their case under these circumstances, the prosecutor must demonstrate that you were biased against the accuser based on their actual or supposed attributes outlined under PEN 422.55 and that the bias motivated the crime.

There was a Baseline or Underlying Offense

A baseline or underlying crime must exist for the prosecutor to charge you with a hate offense. Having ill will against individuals or groups with particular attributes is insufficient for a PEN 422.55 violation charge. You must perpetrate a criminal act against the party with the protected attributes.

While you can harbor prejudice against individuals with protected attributes, the DA cannot establish a hate incident except if there is solid evidence you engaged in criminal activity against the person owing to their protected characteristics. Therefore, you cannot face hate crime allegations wholly because of your discriminatory attitude towards a certain group of people. You must engage in a tangible crime.

Understanding Hate Crimes under PEN 422.6

According to PEN 422.6, it is a crime to wholly or partially engage in the following conduct owing to the victim’s actual or apparent attributes:

  • You deliberately and forcefully interfered with the accuser’s civil or constitutional rights
  • The intrusion with the rights was solely or partially motivated by real or apparent attributes
  • Your motive was to obstruct the accuser’s protected rights

The objective of PEN 422.6 is to safeguard or protect people’s physical integrity from unauthorized violence driven by prejudice. PC 422.6 makes hate crimes a stand-alone crime, stressing the sternness of offenses fueled by biased motives. The prosecutor does not need to show there is an underlying crime to secure a guilty verdict under this statute.

A PEN 422.6 violation is a misdemeanor. If the prosecutor can prove the facts of the case and secures a conviction, you will face:

  • Twelve months of county jail custody
  • Four hundred hours of community labor
  • Monetary court fines of no more than $5,000
  • Summary or informal probation

The court imposes these penalties to hold you accountable for your actions and discourage others from committing hate crimes.

Sentence Enhancement Under PEN 422.7

PEN 422.7 presents the idea of sentence or penalty enhancement for hate offenses. You risk the penalty enhancement if:

  • You have been found guilty of a regular misdemeanor offense
  • You committed the misdemeanor because of prohibited bias and to obstruct the accuser’s rights

The elements the DA must establish to impose the penalty enhancement under this statute are:

  • You committed or were found guilty of a misdemeanor
  • Your misdemeanor meets the definition of a hate incident under PEN 422.55
  • You engaged in the crime to obstruct the target's civil or statutory rights

Furthermore, the DA must demonstrate that the following facts exist in your case:

  • Your misdemeanor led to actual bodily harm or befell when you possessed the present capacity to inflict violent injuries on the target
  • The misdemeanor offense led to property damage valued at least $950
  • You have a prior conviction for a hate offense

A PEN 422.7 violation is a wobbler, allowing the DA to file it as a misdemeanor or felony. The penalty for a misdemeanor infringement is twelve months of jail custody, while a felony attracts at most 36 months of prison incarceration.

It would help if you understood that the court does not impose felony sentence enhancement in association with a misdemeanor guilty verdict under PEN 422.6. A misdemeanor PC 422.6 is a stand-alone hate crime, meaning the DA cannot elevate the count to a felony under PC 422.7

The purpose of this statute is to ensure perpetrators of hate crimes, particularly those that led to substantial bodily harm or property damage, face penalty enhancement to stress the enormity of their crime.

Penalty Enhancement Under PEN 422.75

You will face a penalty enhancement under PEN 422.75 when you are convicted of any felony offense, and the felony was a hate offense.

Specifically, when the jury chooses that your felony was fueled by prohibited prejudice prescribed under PEN 422.55, you will obtain a sentence enhancement of 12, 24, or 36 months of prison custody.

Again, when you engage in the felony hate offense with an accomplice, irrespective of whether you committed the felony individually, aided, or abetted in its commission, you will face a penalty enhancement of 24, 36, or 48 months in prison.

A case in point: James, who is Hispanic, waves a firearm at an African who has just moved in next door. James threatens to fire at a neighbor because he does not belong to the largely Hispanic neighborhood. While James threatens the neighbor, his wife looks out for authorities or trouble.

Later, the neighbor reports the threats to the authorities, and James is apprehended for a felony criminal threat using a firearm. The wife is also arrested and charged with aiding the commission of a felony. When filing the charges, the prosecutor also recommends that the two should face hate offense charges because they targeted the neighbor with the criminal threats because of his race or ethnicity, a prohibited bias under PEN 422.55, and therefore, should face felony sentence enhancement on top of the baseline offense.

If the two are convicted of criminal threats, they risk seven years of prison incarceration each. The maximum three-year sentence is for the baseline offense of criminal threats, while the additional and consecutive four years are felony penalty enhancements for the hate crime.

Federal Hate Offense Statutes

On top of the California hate incident statutes, other statutes that define hate crimes exist under federal regulations. The national laws are intended to penalize hate incidents in jurisdictions that have not enacted their legislation on the crime. In California, where hate crime statutes exist, you will face prosecution under state law and not federal law.

Nevertheless, when the federal court establishes that prosecution under federal laws is in the public’s interest and requisite to securing significant justice, you can be prosecuted under the federal statutes. These statutes are:

     1. The Civil Rights Act of 1964 Prescribed In 18 USC 245

The US Congress in 1964 enacted Title 18 USC 245. The statute criminalizes the deliberate harming, intimidating, or obstructing another party through physical force or fear of using force when all these attempts are fueled by the victim’s color, religion, ethnicity, race, or nationality and that the activity the victim was trying to participate in is federally protected.

The activities the statute considers federally protected include, but are not limited to:

  • Serving a jury
  • Signing up for or attending school
  • Relishing a public place like a park
  • Making job application
  • Voting

The statute protects people’s basic rights and protects all people equally.

     2. Conspiracy Against Rights prescribed in 18 USC 241

Title 18 USC 241 prohibits at least two parties from conspiring to harm, intimidate, oppress, or threaten another party while enjoying or exercising their legal rights protected under the Constitution.

     3. The Civil Rights Act of 1968, Outlined in 42 USC 3631

Otherwise known as the Fair Housing Act, Title 42 USC 3631 criminalizes the injuring, intimidating, or interfering with another party or threatening to do so during the sale, lease, or purchase of a property owing to the party’s race, nationality, family status, gender, ethnicity, religion, or disability.

Contesting Hate Crime or Incident Charges

California hate offense statutes are controversial. Because of the law, the same offense attracts stricter penalties when fueled by the accuser’s ethnicity, nationality, or religion than when the offense is motivated by money or anger. So, many people consider hate laws unfair for punishing people owing to their unpopular opinions.

Still, authorities are relentless in fighting these crimes. Law enforcement has immensely invested in these crimes to the extent they have “hate crimes” units to investigate and bring culprits to justice. Therefore, you should take a hate offense allegation or charge seriously because you could end up with harsh penalties for a crime you did not commit. 

With the penalties stemming from hate crime convictions, you should consider hiring an experienced lawyer to help you prevent a conviction. The valid defenses you can utilize to contest the allegations are:

     1. You are Innocent of the Baseline Offense

Hate crime counts are founded on the premise that you engaged in criminal conduct and acted so because of bias or prejudice. Therefore, your lawyer can always counter the charges by arguing that while you singled out the victim due to or owing to their actual or apparent characteristic, you did not commit the underlying or baseline offense you are suspected of committing against the alleged victim. Your lawyer will contest the baseline offense alleged to be a hate incident.

For instance, if you face vandalism charges that the prosecutor alleges were fueled by prohibited prejudice, your lawyer can challenge the vandalism accusations. If you can demonstrate you did not participate in vandalism, you cannot be guilty of a hate incident.

     2. The Criminal Act Was Not Fueled by Bias

Your defense lawyer can also assert that even if you participated in the commission of the crime, you did not single out the target due to their actual or apparent attributes. Your general prejudice towards certain people should be why you engaged in the violation.

When demonstrating these cases, the prosecutor should furnish the court with proof of your motivation. Proving your motivation beyond moral certainty is difficult, considering the prosecutor relies heavily on circumstantial evidence. If they can show you engaged in the offense because of your dislike of perceived or actual attributes of the victim, you will be guilty.

Your lawyer can poke holes in these assertions to put doubt in the jury’s minds about your motivation by explaining your motives for the crime other than the prohibited prejudice against a plaintiff due to their protected attributes. The lawyer can argue that you committed the crime because of anger or financial motives. If they make the jury doubt your motives for the underlying offense, you will avoid a conviction. The defense will only work to prevent a conviction for the hate offense, but the court will find you guilty of the baseline crime.

     3. Free Speech

The US Constitution’s First Amendment gives you the right to communicate freely. Therefore, if you are accused of a hate violation, you can allege that you were only exercising your free speech or opinion and in no way did you plan to act on your words or participate in criminal activities. The defense will work even if you insult the plaintiff. Using this defense can result in the dismissal of the hate accusations, emphasizing the importance of the First Amendment in protecting your legal rights. 

However, the defense has its exceptions. Your lawyer would not use free speech as a defense if your speech threatened violence against a group or parties protected by law, and during the speech, you could act on your threats.

Other defenses you can use to contest the hate crime counts include arguing that you were acting in self-defense or defending others, that the baseline crime was unintentional, or the victim has misidentified you or falsely accused you of a crime you do not know about.

Filing a Hate Offense Lawsuit

Plaintiffs in hate incidents can file lawsuits under the Ralph Act. The Act enables victims of the crime to seek compensation for the injuries or damages suffered. The damages plaintiffs claim from defendants are:

  • Punitive damages
  • Up to $25,000 in civil penalties
  • Attorney fees
  • Compensatory damages

The plaintiff holds the burden of proof in these lawsuits and must prove with a preponderance of evidence that:

  • The accused engaged or threatened to engage in violence against the accuser based on their characteristics
  • The prohibited bias fueled the violence
  • The accuser sustained injuries
  • The accused’s conduct was the primary cause of the injuries

Find an Experienced Hate Crimes Lawyer Near Me

If you are charged with a hate incident and want to lawyer up, you should talk to the California Criminal Lawyer Group in San Jose, CA. Our lawyers will help you understand the laws regarding the crime and help you navigate court processes. For legal assistance or to evaluate your case, call us at 408-622-0204.