Justia Criminal Law Center California Criminal Jury Instructions (CALCRIM) (2023) Criminal Threats and Hate Crimes CALCRIM No. 1355. Hate Crime Allegation: Misdemeanor (Pen. Code, § 422.7)

CALCRIM No. 1355. Hate Crime Allegation: Misdemeanor (Pen. Code, § 422.7)

Judicial Council of California Criminal Jury Instructions (2023 edition)

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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

[3. When committing that crime, the defendant caused an actual

physical injury or had the ability at that time to cause a violent

injury.]

[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, as used here, means country of origin, immigration status,

including citizenship, 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, March 2022

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.)

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

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(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

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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].

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.

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).

1356-1399. Reserved for Future Use

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Page last reviewed May 2023