Hate crimes are criminal acts or attempted criminal acts against an individual or group of individuals based solely on their actual or perceived race, color, religion, ancestry, national origin, sexual orientation, gender, or disability. These categories are very broad, everyone can easily fit into at least one category. This is because the categories themselves are not intended to define the offense of a hate crime. In other words, belonging to any one of these special categories alone does not make a crime a hate crime. Unlike other crimes under domestic violence, the victim's status in a special category alone is insufficient to be charged with a hate crime. To be charged with a hate crime you must have committed the offense with a bias to target a person for their association to one of these categories.
Hate Crimes in San Diego
The problem with hate crimes in San Diego is that prosecutors are often quick to charge people with a hate crime solely because the offense involved a victim who happens to fit into a special category. This is not the law! You should not be charged with a hate crime for committing a crime that happened to involve a person who belongs to a special category. A hate crime conviction requires that the offense be motivated by a bias against the victim. This means the prosecution cannot make this assumption based on the victim but must prove beyond a reasonable doubt that you specifically targeted that individual because of their association to one of these categories.
Understanding Penal Code Section 422.6
California PC 422.6 makes it a stand-alone crime to interfere with someone else's civil rights, or damage or destroy their property, because of one or more of the following actual or perceived characteristics of the victim:
A person’s mental and physical disability.
A person's gender identity and gender expression.
A person’s national origin, citizenship, and country of origin.
Race or Ethnicity:
A person's ancestry, color, and ethnic background.
All aspects of a person's religious belief, observance, and practice and includes agnosticism and atheism.
A person's heterosexuality, homosexuality, or bisexuality.
Basically, to convict someone of California PC 422.6, the prosecutor must prove the following elements:
- In whole or in part because the victim has one of the above characteristics;
- Willfully injure, intimidate, interfere with or threaten someone;
- Knowingly damage or destroy someone's property;
- For the purpose of interfering with their legal and constitutional rights.
It is important to note that California PC 422.6 imposes criminal penalties even if the prosecutor can't prove that you violated any other law.
First Amendment Implications
The First amendment prohibits Congress from making laws that would restrict an individual’s freedom of speech. A person cannot be charged and convicted of a California hate crime under Penal Code 422.6 PC only based on their speech. Unless that person’s speech threatened violence and the person had the apparent ability to actually carry out the threat. This is because our right to free speech is not absolute, it does not protect any and all types of speech. Unprotected categories of speech may be restricted but must be narrow in scope to avoid infringing individuals First Amendment rights.
Misdemeanor Hate Crimes
• P.C. 302 – Disorderly conduct during an assemblage of people gathered for Religious worship at a tax-exempt place of worship.
• P.C. 422.6 – Use of force, threats or destruction of property to interfere with another’s exercise of Civil Rights.
• P.C. 422.9 – Violation of civil order protecting the exercise of Civil Rights.
• P.C. 538(c) – Unauthorized insertion of advertisements in newspapers and redistribution to the public.
• P.C. 640.2 – Placing handbill, notice or advertisement on a consumer product or product package without authorization.
• P.C. 11411 – Terrorism of owner or occupant of real property. Placement or display of sign, symbol or other physical impression without authorization, engagement in pattern of conduct, or burning or desecration of Religious symbols.
Felony Hate Crimes
• P.C. 422.7 – Commission of a crime for the purpose of interfering with another’s exercise of Civil Rights.
• P.C. 594.3 – Vandalism of place of worship based on Racial or Religious bias.
• P.C. 11412 – Threats obstructing exercise of Religion.
• P.C. 11413 – Use of destructive device or explosive or commission of arson in certain places.
Enhancements for Hate Crimes
• P.C. 190.2(a)(16) – Special circumstances imposing the Death Penalty or Life Without possibility of Parole if the victim was intentionally killed because of race, color, religion, nationality, country of origin.
• P.C. 190.3 – Special circumstances imposing Life Without possibility of Parole if the victim was intentionally killed because of sexual orientation, gender or disability.
• P.C. 422.75 – Penalty for felony committed because of victim’s race, color, religion, nationality, country of origin, ancestry, disability or sexual orientation shall be enhanced one, two or three years in prison, if the person acts alone; and 2, 3 or 4 years if the person commits the act with another.
- Your conduct qualifies as protected free speech under the First Amendment.
- False accusations, you did not commit any crime.
- You did commit a crime but it was not motivated by bias.