California Criminal Jury Instructions (CALCRIM) (2017)

1354. Hate Crime Allegation: Felony

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1354.Hate Crime Allegation: Felony (Pen. Code, § 422.75(a)–(c))
If you find the defendant guilty of the crime[s] charged in Count[s]
[,] [or of attempting to commit (that/those) crime[s]] [or the
lesser crime[s] of <insert name[s] of alleged lesser
offense[s]>], you must then decide whether[, for each crime,] the People
have proved the additional allegation that the crime[s] committed by the
defendant (was a/were) hate crime[s]. [You must decide whether the
People have proved this allegation for each crime and return a separate
finding for each crime.]
To prove this allegation [for each crime] the People must prove that the
defendant committed that crime in whole or in part because of the
alleged victim’s actual or perceived (disability[,]/ gender[,]/
nationality[,]/ race or ethnicity[,]/ religion[,]/ sexual orientation[,]/ [or]
association with a person or group having (this/one or more of these)
actual or perceived characteristic[s]).
As used here, victim includes, but is not limited to, a (person[,]/ [or]
individual[,]/ [or] family[,]/ [or] group[,]/ [or] community center[,]/ [or]
educational facility[,]/ [or] entity[,]/ [or] office[,]/ [or] meeting hall[,]/
[or] place of worship[,]/ [or] private institution[,]/ [or] public agency[,]/
[or] library[,]/ [or] other victim or intended victim of the crime).
The defendant acted in whole or in part because of the actual or
perceived characteristic[s] of the victim if:
1. The defendant was biased against the victim based on the
victim’s actual or perceived (disability[,]/ gender[,]/ nationality[,]/
race or ethnicity[,]/ religion[,]/ sexual orientation[,]/ [or]
association with a person or group with (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
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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[,]/
identification with[,]/ [or] being on the ground owned or rented by[, or
adjacent to,]) a (person[,]/ group[,]/ family[,]/ community center[,]/
educational facility[,]/ office[,]/ meeting hall[,]/ place of worship[,]/
private institution[,]/ public agency[,]/ library[,]/ [or] other entity) that
has, or is identified with people who have, (that/one or more of those)
characteristic[s].]
[If you conclude that the People have proved that the crime[s]
committed by the defendant (was a/were) hate crime[s], you must also
decide whether the defendant voluntarily acted together with another
person by either personally committing the crime or by aiding and
abetting another person in committing the crime.]
The People have the burden of proving each allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
that this allegation has not been proved.
New January 2006; Revised March 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the sentencing enhancement. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490
[120 S.Ct. 2348, 147 L.Ed.2d 435].) This statute was substantially revised, effective
January 1, 2005.
Give all relevant bracketed definitions. If the term “disability” is used, give
CALCRIM No. 1353, Hate Crimes: Disability Defined.
If the prosecution alleges that the defendant acted in concert with another, pursuant
to Penal Code section 422.75(b), give the bracketed sentence that begins with “If
you conclude that the People have proved.” Give all relevant instructions on aiding
and abetting. The jury must be provided with a verdict form on which it may
indicate whether this factor has also been proved.
If the prosecution alleges that the defendant has a qualifying prior conviction under
Penal Code section 422.75(d), then, in addition to this instruction, also give
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CALCRIM No. 3100, Prior Conviction: Nonbifurcated Trial, or CALCRIM No.
3101, Prior Conviction: Bifurcated Trial, unless the defendant has stipulated to the
truth of the prior conviction.
Do not give CALCRIM No. 370, Motive, with this instruction because motive is an
element of this crime. (See People v. Valenti (2016) 243 Cal.App.4th 1140, 1165
[197 Cal.Rptr.3d 317]; People v. Maurer (1995) 32 Cal.App.4th 1121, 1126–1127
[38 Cal.Rptr.2d 335].)
Related Instructions
CALCRIM No. 1350, Hate Crime: Misdemeanor Interference With Civil Rights by
Force.
CALCRIM No. 1351, Hate Crime: Misdemeanor Interference With Civil Rights by
Threat.
CALCRIM No. 1352, Hate Crime: Misdemeanor Interference With Civil Rights by
Damage to Property.
CALCRIM No. 1355, Hate Crime Allegation: Misdemeanor.
AUTHORITY
• Enhancement. Pen. Code, § 422.75(a)–(c).
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].
• Victim Defined. Pen. Code, § 422.56(i).
• 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).
• Enhancement, Not Substantive Offense. See People v. Wallace (2003) 109
Cal.App.4th 1699, 1702 [1 Cal.Rptr.3d 324].
• Aiding and Abetting. People v. Beeman (1984) 35 Cal.3d 547, 560–561 [199
Cal.Rptr. 60, 674 P.2d 1318].
• Acting in Concert. See People v. Calimee (1975) 49 Cal.App.3d 337, 341
[122 Cal.Rptr. 658] [construing sodomy-in-concert statute]; People v. Lopez
(1981) 116 Cal.App.3d 882, 886 [172 Cal.Rptr. 374] [construing rape-in-concert
statute].
CRIMINAL THREATS AND HATE CRIMES CALCRIM No. 1354
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• No Specific Intent Required. People v. Superior Court (Aishman) (1995) 10
Cal.4th 735, 740–741 [42 Cal.Rptr.2d 377, 896 P.2d 1387].
Secondary Sources
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 373.
5Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.44 (Matthew Bender).
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