“Hate Crime” is defined in the Penal Code at section 422.55 as a criminal act committed because the victim was perceived to have certain characteristics. Those characteristics specifically delineated as: disability, gender, nationality, race or ethnicity, religion, sexual orientation, or being associated with any group that has those perceived characteristics.
A hate crime can be charged as a misdemeanor or felony depending upon the circumstances. (Penal Code sections 422.6 and 422.7.) A hate crime that involves the threat of or use of actual violence or that causes damage to property in excess of $950.00 may be charged as a felony. This applies to everyone involved whether acting in concert or as an aider and abettor. A person who has previously been convicted of a hate crime, whether as a misdemeanor or felony on the previous conviction, may be charged with a felony hate crime, along with additional sentencing, even if no threat or use of violence is involved in the subsequent offense. A hate crime that involved the personal use of a firearm is a factor in aggravation which can result in a sentencing enhancement.
A hate crime may be charged as an enhancement to another crime or may be charged on its own.
This may sound a bit complicated so an example might help:
A group of youths shouted anti-gay epitaphs and threats at a group of men walking down the street who they believed to be gay. One of the youths, Archie, lunged at one of the victims with a crowbar and a fight ensued between Archie and the victim. The other youths cheered on Archie but did not enter the fracas. The victim fell to the ground and Archie repeatedly kicked him. The victim suffered injuries. The youths then ran off shouting threats of future violence such as “We’re going to get you fags if you don’t stay off our streets.”
Archie committed a felony assault with a deadly weapon (the crowbar), enhanced by a felony hate crime. His comrades committed a felony hate crime. If Archie had not assaulted the victim, but he and his friends merely shouted hateful threats of violence, he and his friends would have committed a misdemeanor hate crime. If they had merely shouted epitaphs without any threats of violence, they would not be guilty of any crime. Speech cannot be charged as a hate crime if that speech does not result in or threaten violence.Elements
To prove a hate crime, the prosecution must show that the perpetrator intended to interfere with or intimidate another person from exercising a constitutionally protected right and that conduct was in whole or in part because of one of the protected characteristics (as listed above, whether actual or perceived, and the perpetrator used force or threats of force to interfere with the victim’s protected right. (CALCRIM 1355)
Back to Archie and his friends: It does not matter whether the group of men they accosted included gay men among them or not; the perpetrators perceived that they were gay and interfered with their right to freely walk down the street.Defenses
Intent: The prosecution must prove that the perpetrator intended to interfere or intimidate another person because the person was perceived to have one of the protected characteristics. As an example, Arnold stood in front of a person who was navigating his wheelchair down the sidewalk, thereby blocking the disabled person from moving forward. Arnold didn’t say a word, he just stood there. A police cruiser passes by and notices Arnold’s conduct. They arrest Arnold for a misdemeanor hate crime. However, Arnold’s reasons for his conduct were not clear. The prosecution maintains he was intentionally acting to intimidate a disabled person, but Arnold claims he did it because he thought the person in the wheelchair had committed a wrong against him earlier that day. The prosecution had no evidence of Arnold’s intent; it was merely a suspicion. Arnold’s hate crime defense attorney was able to get the charge dismissed on that ground.
Constitutionally protected right: There must be interference with a constitutionally protected right. Example: Sam, Mary’s neighbor has trespassed on Mary’s property several times. Mary believes Sam is stalking her by his trespasses and she has provided him with notice that he is not allowed to trespass on her property. Sam trespasses again. Mary, believing that Sam is a Jew, points her rifle at Sam and yells “Get off my property, you kike.” Mary threatened violence against Sam and specifically threatened him by referring to him by the hateful term “kike.” Sam called the police, and she was arrested for felony hate crime. Mary’s criminal defense attorney was successful in getting the charge dropped because Mary did not interfere a right that is constitutionally protected. That is, Sam had no right to trespass on Mary’s property.
No threat or use of force: A group forms to harass a demonstration being held by a Christian pro-life group. The participants yell derogatory slogans at the pro-life demonstrators and mock their religion. However, no one in the group threatens or uses any force against the demonstrators. Although their speech is hateful, no one in the counter-demonstration group is guilty of a hate crime.
Did not aid and abet: Joe was hanging out with friends when they happened on a group of Muslims leaving the mosque. Joe’s friends started taunting the Muslims, calling them “ragheads”, and impeding their way along the sidewalk. Joe did not join his group of friends in this harassment and, indeed, he walked away the moment he realized what his friends were up to. Even though Joe was with his friends up to that moment, he is not guilty of aiding and abetting his friend’s behavior because he immediately removed himself. If Joe had stuck around while his friends harassed the victims, but then decided to walk away, he could still be guilty of the crime.Penalties
A hate crime charge can be serious. Even when charged as a misdemeanor, it can result in a sentence of up to one year in jail, fines, and probation. When the crime is charged and convicted as a felony, the sentence may be up to three years in prison. That term can be enhanced if a firearm is used. Furthermore, if the primary conviction is on a felony but committed as a hate crime (such as Archie’s assault example above), the hate crime enhancement will add up to an additional three years in prison, at the court’s discretion. (Penal Code section 422.75(a).)Hate Crime Defense Attorney William Weinberg Can Help!
Hate crimes are often difficult for the prosecution to prove. Nonetheless, a hate crime charge is serious and if you have been charged with a hate crime or hate crime enhancement you should consult with a hate crime defense attorney immediately. Orange County criminal defense attorney William Weinberg has represented defendants charged with hate crimes and other criminal acts for over 25 years. He is available for a complimentary consultation to review the details of your case and advise on your options. He may be contacted at his Irvine office by calling (949) 474-8008 or by emailing him at firstname.lastname@example.org.