Criminal Law

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 disabilities).]

<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).]

Bench Notes

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).

(New January 2006)