California Criminal Jury Instructions (CALCRIM) (2017)

1355. Hate Crime Allegation: Misdemeanor

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1355.Hate Crime Allegation: Misdemeanor (Pen. Code, § 422.7)
If you find the defendant guilty of <insert offense[s]> [as
charged in Count[s] ], you must then decide whether 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:
1. When committing that crime, the defendant intended to interfere
with [or intimidate] another person’s free exercise or enjoyment
of the right [or privilege] to <describe the right
raised by the evidence>, established by the law or Constitution of
California or the United States;
[AND]
2. The defendant acted in whole or in part because of the other
person’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])(;/.)
[AND
<Alternative 3A—caused physical injury>
[3. When committing that crime, the defendant caused an actual
physical injury or had the ability at that time to cause a violent
injury.]
<Alternative 3B—caused property damage>
[3. The defendant caused property damage in excess of $950.]]
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.
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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[,]/
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].]
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 February 2012, March 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
enhancement. (People v. Wallace (2003) 109 Cal.App.4th 1699, 1702 [1 Cal.Rptr.3d
324] [statute defines enhancement, not separate offense].) This enhancement makes
a crime “committed against the person or property of another” that would otherwise
be a misdemeanor into a misdemeanor-felony “wobbler.” (Pen. Code, § 422.7.) This
statute was substantially revised, effective January 1, 2005.
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.
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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 element 3A if the prosecution alleges that the crime was committed “against a
person” and caused injury or included “the present ability to commit a violent
injury.” (Pen. Code, § 422.7(a)). Give element 3B if the prosecution alleges
property damage exceeding $950. (Pen. Code, § 422.7(b).) If the prosecution
alleges that the defendant has a qualifying prior conviction under Penal Code
section 422.7(c), then, in addition to this instruction, also give 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.
Give all relevant bracketed definitions. If the term “disability” is used, give
CALCRIM No. 1353, Hate Crimes: Disability Defined.
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
Damaging Property.
CALCRIM No. 1354, Hate Crime Allegation: Felony.
AUTHORITY
• Enhancement. Pen. Code, § 422.7.
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 [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).
• Enhancement, Not Substantive Offense. People v. Wallace (2003) 109
CRIMINAL THREATS AND HATE CRIMES CALCRIM No. 1355
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Cal.App.4th 1699, 1702 [1 Cal.Rptr.3d 324].
• Intent to Deprive Individual of Protected Rights. 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]; People v. MacKenzie (1995) 34
Cal.App.4th 1256, 1268 [40 Cal.Rptr.2d 793]; In re Joshua H. (1993) 13
Cal.App.4th 1734, 1742 [17 Cal.Rptr.2d 291].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 505, 506.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.44 (Matthew Bender).
LESSER INCLUDED OFFENSES
• The underlying misdemeanor, and the attempt of the underlying misdemeanor
(see Pen. Code, § 664), are lesser included offenses of a violation of Penal Code
section 422.7.
1356–1399. Reserved for Future Use
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