California “Hate Crime” Laws, Penalties & Defenses

California’s hate crime laws are codified in Penal Code Sections 422.55, 422.6, 422.7, and 422.75 PC. These statutes make it a criminal offense for a person to commit a hate crime and also impose enhanced penalties when a person commits an offense (such as vandalism) and does so while motivated by a bias towards the alleged “victim” (for instance, because of the victim’s race).

Penal Code 422.55 PC is the California statute that defines a hate crime as a criminal act committed because of the victim’s actual or perceived:

• disability,
• gender,
• nationality,
• race or ethnicity,
• religion,
• sexual orientation, or
• association with a person or group with one or more of these actual or perceived characteristics.

Penal Code 422.6 PC is the California law that makes it a stand-alone crime for a person to commit a hate crime.

Penal Code 422.7 PC is the law that imposes an additional penalty on an accused whenever:

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

Penal Code 422.75 PC imposes a sentencing enhancement on an accused whenever:

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

Legal Defenses

A person accused of violating one of these laws can challenge the accusation with a legal defense. Three effective defenses include the accused showing that he/she:

• did not commit an underlying crime,
• was not motivated by a bias towards the “victim,” and/or
• engaged in protected free speech.

Penalties

The commission of a hate crime is a misdemeanor offense under California law. The crime is punishable by:

• imprisonment in county jail for up to one year, and/or
• a maximum fine of $5,000.

A judge does have the authority to award a defendant with misdemeanor (or summary) probation in lieu of jail time.

If a person commits a crime, and it is proven that the crime is also a hate crime, then the defendant can be charged with a felony and receive a penalty enhancement of up to three years.

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

• 1. What is a hate crime in California?
  • 1.1 “Actual” characteristic
  • 1.2 “Perceived” characteristic
  • 1.3 Crime committed “because” of a protected characteristic
  • 1.4 Need for an underlying crime
• 2. What is a hate crime under Penal Code 422.6?
• 3. When is there an enhanced penalty for a hate crime under Penal Code 422.7?
• 4. When is there an enhanced penalty for a hate crime per Penal Code 422.75?
• 5. Are there federal hate crime laws?
• 6. What are the best legal defenses to hate crime allegations?
  • 6.1 Not guilty of an underlying crime
  • 6.2 Not motivated by bias
  • 6.3 Free speech
• 7. Can I sue for a hate crime under the Ralph Act?

1. What is a hate crime in California?

California Penal Code 422.55 PC sets forth the legal definition of a hate crime. According to this section, a “hate crime” means a criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim:

• disability,
• gender,
• nationality or national origin,
• race or ethnicity,
• religion or place of worship,
• sexual orientation, or
• association with a person or group of persons with one or more of these actual or perceived characteristics.¹

Questions often arise under this statute on:

1. the meaning of an “actual” characteristic,
2. the meaning of a “perceived” characteristic,
3. when a crime is committed “because” of a characteristic, and
4. whether a person must commit an underlying crime for criminal charges to be filed.

1.1 “Actual” characteristic

“Actual” means that a person acts with some type of ill will, or bias motivation, because of the victim’s real status regarding disability, gender, nationality, etc.²

In other words, people commit hate incidents if they perform some offense simply because of that person’s characteristics.

1.2 “Perceived” characteristic

Under state law, “perceived” means that a person can commit a hate crime even if it turns out that the victim did not have one of the characteristics listed above. This is true as long as the defendant believed, or “perceived,” that he/she did.³

Consider, for example, a case where a person commits an armed robbery against a couple whom he believes to be Jewish. The person commits the crime solely because of the couple’s religious affiliation. As it turns out, the couple is not in fact Jewish. Nonetheless, because the offender perceived the couple to be Jewish, he committed a hate crime.

1.3 Crime committed “because” of a protected characteristic

For purposes of this statute, an accused is considered to have committed a crime “because of” the victim’s protected characteristic if he/she acted either wholly or partially because of that characteristic.⁴
To prove that this is the case, a district attorney must prove that:

1. the defendant was biased against the victim because he/she had (or he/she perceived the victim to have) one of the characteristics listed in PC 422.55, and
2. that bias is what caused him/her to commit the alleged crime.⁵

1.4 Need for an underlying crime

A person cannot be convicted of a hate crime unless there is some type of underlying offense.

This means that while a person may show ill will or hatred towards a specific race, there is no hate crime unless that person commits some unlawful act against a person of the given race.

2. What is a hate crime under Penal Code 422.6?

A prosecutor must prove the following to prove that a defendant is guilty of a hate crime:

1. he/she used force to willfully interfere with another person’s civil rights or constitutional rights,
2. he/she did so in whole or in part because of the other person’s actual or perceived disability, gender, nationality, race or ethnicity, religion, or sexual orientation, and
3. the defendant intended to interfere with the other person’s legally protected rights.⁶

The policy behind PC 422.6 is to protect the physical integrity of every person from unauthorized violence.⁷

A violation of this law is charged as a misdemeanor. The crime is punishable by:

• custody in county jail (as opposed to state prison) for up to one year,
• 400 hours of community service, and/or
• a fine of up to $5,000.⁸

3. When is there an enhanced penalty for a hate crime under Penal Code 422.7?

Penal Code 422.7 PC imposes an additional penalty on an accused whenever:

1. he/she is convicted of a California misdemeanor, and
2. that misdemeanor is also a hate crime.⁹

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,¹⁰ and
4. one of the following is true:
   1. 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,
   2. the misdemeanor caused property damage costing more than nine hundred $950, or
   3. the accused had been previously convicted of a hate crime.¹¹

A violation of this statute is a wobbler offense. A wobbler is a crime that a prosecutor can charge as either a misdemeanor or a felony.

If charged as a misdemeanor, the crime is punishable by imprisonment in the county jail for up to one year.¹²

If charged as a felony, the offense is punishable by imprisonment in state prison for up to three years.¹³

4. When is there an enhanced penalty for a hate crime per Penal Code 422.75?

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

1. he/she is convicted of a California felony, and
2. that felony is also proven to be a hate crime.¹⁴

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).¹⁵

If a person is convicted of a felony that is also proven to be a hate crime, then per this statute, the defendant will receive an additional sentence in state prison of up to three years.¹⁶

5. Are there federal hate crime laws?

There are several federal hate crime laws in the United States. Some of these include:

• The Civil Rights Act of 1964, 18 USC 245,
• The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, 18 USC 249,
• Conspiracy Against Rights, 18 USC 241, and
• The Civil Rights Act of 1968, 42 USC 3631.

6. What are the best legal defenses to hate crime allegations?

Our criminal defense lawyers advise clients that there are three effective defenses to challenge hate crime accusations. These include the accused showing that he/she:

1. did not commit an underlying crime.
2. was not motivated by bias.
3. was exercising his/her first amendment right to free speech.

(Other potential defenses include misconduct by local law enforcement, such as police department officers coercing a confession.)

6.1 Not guilty of an underlying crime

Recall that a person is only guilty under these statutes if he/she:

• committed a wrongful act, and
• did so because of the victim’s characteristics (e.g., race, religion, gender identity, etc.).

This means it is always a defense for an accused to say that, while he/she may have been biased towards someone, he/she never committed an unlawful act.

6.2 Not motivated by bias

Similarly, a defendant can use the defense that while he committed a crime, he did not do so because of the “victim’s” characteristics. Note, though, while this is a defense to a hate crime, the accused will likely still be guilty of the underlying offense.

6.3 Free speech

The First Amendment of the United States protects a person’s right to speak freely. A defendant can use this protection as a defense if he/she can show that his/her conduct consisted exclusively of speech (as opposed to speech in conjunction with a violent or criminal act).

7. Can I sue for a hate crime under the Ralph Act?

Yes. Under California’s Ralph Act, a victim of a hate crime – or threatened hate crimes – can sue the culprits for:

• Compensatory damages,
• Punitive damages,
• Attorneys’ fees, and
• A civil penalty of $25,000.

In order to win a Ralph Act lawsuit, the plaintiff would need to prove the following four elements:

1. The defendant committed an act of violence (actual or threatened) against the plaintiff due to the plaintiff’s actual or perceived characteristic;
2. A substantial motivating reason for the defendant’s actions was the plaintiff’s actual or perceived characteristic;
3. The plaintiff was harmed; and
4. That defendant’s actions were a substantial factor in causing the plaintiff harm.¹⁷

As an alternative to bringing a lawsuit, hate crime victims can file a complaint with the California CRD (Civil Rights Department). Learn more here.

For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact our law firm at the Shouse Law Group. Our attorneys represent clients throughout California, including those in Los Angeles, Orange County, San Bernardino, Sacramento, San Diego, Oakland’s Chinatown, and San Francisco. We offer payment plans during the coronavirus pandemic.

Helpful Links:

• Department of Justice (DOJ.gov):
  • DOJ – Hate Crimes
  • DOJ – Civil Rights Division
  • DOJ – Report Hate Crimes (hotline)
  • DOJ – Hate Crime statistics based on data collection
• Federal Bureau of Investigations (FBI) – Hate Crimes
• Title VII of the Civil Rights Act of 1964
• Human Rights First – Hate Crimes

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Legal References:

1. California Penal Code 422.55 PC.
2. Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258.
3. See same.
4. California Penal Code 422.55 PC.
5. CALCRIM No. 1350 – Hate Crime. Judicial Council of California Criminal Jury Instructions (2020 edition). See also People v. Lindberg (2008) 45 Cal.4th 1.
6. CALCRIM No. 1350 – Hate Crime.
7. People v. Lashley (1991) 1 Cal. App. 4th 938.
8. California Penal Code 422.6 PC. See also In re M.S. (1995) 10 Cal.4th 698. See also People v. Lara (1996) 44 Cal.App.4th 102. See also People v. Maurer (1995) 32 Cal.App.4th 1121. See also People v. Valenti (2016) 243 Cal.App.4th 1140.
9. California Penal Code 422.7 PC.
10. This element requires proof of the accused’s intent. See People v. MacKenzie (1995) 34 Cal.App.4th 1256.
11. CALCRIM No. 1355 – Hate Crime Allegation: Misdemeanor. Judicial Council of California Criminal Jury Instructions (2020 edition).
12. California Penal Code 422.7 PC. See also In re Joshua H. (1993) 13 Cal.App.4th 1734.
13. California Penal Code 1170h PC.
14. California Penal Code 422.75 PC. See also Apprendi v. New Jersey (2000) 530 U.S. 466. See also People v. Wallace (2003) 109 Cal.App.4th 1699. See also People v. Beeman (1984) 35 Cal.3d 547. See also People v. Calimee (1975) 49 Cal.App.3d 337. See also People v. Lopez (1981) 116 Cal.App.3d 882.
15. People v. Superior Court (Aishman) (1995), 10 Cal. 4th 735. See also People v. Lindberg (2008) 45 Cal.4th 1.
16. California Penal Code 422.75.
17. California Civil Code § 51.7; Austin B. v. Escondido Union School Dist., (Court of Appeal of California, Fourth Appellate District, Division One,2007) 149 Cal. App. 4th 860, 57 Cal. Rptr. 3d 454.