1350. Hate Crime: Misdemeanor Interference With Civil Rights by Force

The defendant is charged [in Count ______] with interfering with another person's civil rights by the use of force.

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant used force to willfully interfere with[, or injure, intimidate, or oppress,] another person's free exercise or enjoyment of the right [or privilege] to

<describe the right allegedly infringed, e.g., "be free from violence or bodily harm">, established by the law or Constitution of California or the United States;

2. The defendant did so in whole or in part because of the other person's actual or perceived (disability[,]/ [or] gender[,]/ [or] nationality[,]/ [or] race or ethnicity[,]/ [or] religion[,]/ [or] sexual orientation[,]/ [or] association with a person or group having (this/one or more of these) actual or perceived characteristic[s]);

AND

3. The defendant intended to interfere with the other person's legally protected right [or privilege].

Someone commits an act willfully when he or she does it willingly or on purpose.

The defendant acted in whole or in part because of the actual or perceived characteristic[s] of the other person if:

1. The defendant was biased against the other person based on the other person's actual or perceived (disability[,]/ [or] gender[,]/ [or] nationality[,]/ [or] race or ethnicity[,]/ [or] religion[,]/ [or] sexual orientation[,]/ [or] association with a person or group having (this/one or more of these) actual or perceived characteristic[s]);

AND

2. The bias motivation caused the defendant to commit the alleged acts.

If you find that the defendant had more than one reason to commit the alleged acts, the bias described here must have been a substantial motivating factor. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that motivated the conduct.

[The term disability is explained in Instruction 1353, to which you should refer.]

[Gender, as used here, means sex and includes a person's gender identity and gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth.]

[Nationality includes citizenship, country of origin, and national origin.]

[Race or ethnicity includes ancestry, color, and ethnic background.]

[Religion, as used here, includes all aspects of religious belief, observance, and practice and includes agnosticism and atheism.]

[Sexual orientation means heterosexuality, homosexuality, or bisexuality.]

[Association with a person or group having (this/one or more of these) actual or perceived characteristic[s] includes (advocacy for[,]/ [or] identification with[,]/ [or] being on the ground owned or rented by[, or adjacent to,]) a (person[,]/ [or] group[,]/ [or] family[,]/ [or] community center[,]/ [or] educational facility[,]/ [or] office[,]/ [or[meeting hall[,]/ [or] place of worship[,]/ [or] private institution[,]/ [or] public agency[,]/ [or] library[,]/ [or] other entity) that has, or is identified with people who have, (that/one or more of those) characteristic[s].]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the crime. This statute was substantially revised, effective January 1, 2005.

If the prosecution is based on the defendant's speech alone, do not give this instruction. (Pen. Code, § 422.6(c); In re M.S. (1995) 10 Cal.4th 698, 711-716 [42 Cal.Rptr.2d 355, 896 P.2d 1365].) Give CALCRIM No. 1351, Hate Crime: Misdemeanor Interference With Civil Rights by Threat.

In element 1, insert a description of the specific right or rights allegedly infringed, for example, the right to be free from violence or the threat of violence or the right to be protected from bodily harm. (See Civil Code, §§ 43, 51.7; People v. Lashley (1991) 1 Cal.App.4th 938, 950-951 [2 Cal.Rptr.2d 629]; People v. MacKenzie (1995) 34 Cal.App.4th 1256, 1277-1278 [40 Cal.Rptr.2d 793].)

Give all relevant bracketed definitions. If the term "disability" is used, give CALCRIM No. 1353, Hate Crime: Disability Defined.

Authority

Elements. Pen. Code, § 422.6(a).

Willfully Defined. Pen. Code, § 7, subd. 1; People v. Lara (1996) 44 Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].

Hate Crime Defined. Pen. Code, § 422.55.

"In Whole or in Part Because of" Defined. Pen. Code, § 422.56(d); In re M.S. (1995) 10 Cal.4th 698, 719-720 [42 Cal.Rptr.2d 355, 896 P.2d 1365]; People v. Superior Court (Aishman) (1995) 10 Cal.4th 735, 741 [42 Cal.Rptr.2d 377, 896 P.2d 1387].

Disability Defined. Pen. Code, § 422.56(b); Gov. Code, § 12926(i)-(l).

Gender Defined. Pen. Code, §§ 422.56(c), 422.57.

Nationality Defined. Pen. Code, § 422.56(e).

Race or Ethnicity Defined. Pen. Code, § 422.56(f).

Religion Defined. Pen. Code, § 422.56(g).

Sexual Orientation Defined. Pen. Code, § 422.56(h).

Association With Defined. Pen. Code, § 422.56(a).

Specific Intent to Deprive Individual of Protected Right Required. In re M.S. (1995) 10 Cal.4th 698, 713 [42 Cal.Rptr.2d 355, 896 P.2d 1365]; People v. Lashley (1991) 1 Cal.App.4th 938, 947-949 [2 Cal.Rptr.2d 629].

Not Limited to "Significant Constitutional Rights." People v. MacKenzie (1995) 34 Cal.App.4th 1256, 1277-1278 [40 Cal.Rptr.2d 793].

Statute Constitutional. In re M.S. (1995) 10 Cal.4th 698, 715-717, 724 [42 Cal.Rptr.2d 355, 896 P.2d 1365].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, §§ 410, 411.

5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91, Sentencing, § 91.44 (Matthew Bender).

Related Issues

Defendant Need Not Know He or She Is Violating the Law

" '[S]pecific intent' under the statute does not require an actual awareness on the part of the defendant that he is violating another's constitutional rights. It is enough that he engages in activity that interferes with rights clearly and specifically protected by the laws of the United States." (People v. Lashley (1991) 1 Cal.App.4th 938, 948 [2 Cal.Rptr.2d 629].) "It is sufficient if the right is clearly defined and that the defendant intended to invade interests protected by constitutional or statutory authority." (Id. at p. 949.)

Penal Code Section 654

In In re M.S. (1995) 10 Cal.4th 698, 727 [42 Cal.Rptr.2d 355, 896 P.2d 1365], the court rejected the argument that Penal Code section 654 does not apply to convictions under Penal Code section 422.6. In 2004, the Legislature amended the statute to add subdivision (d), which specifically states that Penal Code section 654 applies to convictions under Penal Code section 422.6.

(New January 2006)