California Criminal Jury Instructions (CALCRIM) (2017)

1353. Hate Crime: Disability Defined

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1353.Hate Crime: Disability Defined
The term disability includes a (mental/ [or] physical) disability.
<Alternative A—mental disability>
[A person has a mental disability if he or she has a mental or
psychological condition that limits a major life activity. The term mental
disability includes (mental retardation[,]/ [and] organic brain
syndrome[,]/ [and] emotional or mental illness[,]/ [and] specific learning
<Alternative B—physical disability>
[A person has a physical disability if he or she has (a physiological
(disease[,]/ [or] disorder[,]/ [or] condition)[;]/ [or] a cosmetic
disfigurement[;]/ [or] an anatomical loss) that:
1. Affects one or more of the following body systems:
(neurological[(,/;)]/ immunological[(,/;)]/ musculoskeletal[(,/;)]/
sensory, primarily the special sense organs[(,/;)]/ respiratory,
including speech organs[(,/;)]/ cardiovascular[(,/;)]/
reproductive[(,/;)]/ digestive[(,/;)]/ genitourinary[(,/;)]/ hemic and
lymphatic[(,/;)]/ skin[(,/;)]/ [or] endocrine);
2. Limits a major life activity.]
Major life activities include physical, mental, and social activities,
including but not limited to working.
A (disease[,]/ [or] disorder[,]/ [or] condition) limits a major life activity
if it makes participation in the major life activity difficult.
[In deciding whether a (disease[,]/ [or] disorder[,]/ [or] condition) limits
a major life activity, do not consider whether the limitation can be
overcome with medications, assistive devices, reasonable
accommodations, or other mitigating measures. [However, if a
mitigating measure itself limits a major life activity, you may consider
this as evidence that the (disease[,]/ [or] disorder[,]/ [or] condition)
limits a major life activity.]]
[A person has a disability if he or she has a (mental or psychological
condition/ [or] health impairment) that requires special education or
related services.]
[A person has a disability if <insert description of other
condition not covered by the foregoing but included in Americans With
Disabilities Act (ADA) of 1990>.]
[Disability does not include (sexual behavior disorders[,]/ [or] compulsive
gambling[,]/ [or] kleptomania[,]/ [or] pyromania[,]/ [or] psychoactive
substance—use disorders resulting from the current unlawful use of
controlled substances or other drugs).]
New January 2006
Instructional Duty
Give this instruction when using the term “disability” in any other instruction.
If the case involves a person with a mental disability, give alternative A. If the case
involves a person with a physical disability, give alternative B.
Give any of the bracketed paragraphs on request.
• Disability Defined. Pen. Code, § 422.56(b); Gov. Code, § 12926(i)–(l).
• Mental Disability. Gov. Code, § 12926(i).
• Physical Disability. Gov. Code, § 12926(k).
• Disability Includes Anything Covered by ADA. Gov. Code, § 12926(l).
Secondary Sources
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing,§ 91.44 (Matthew Bender).