California Criminal Jury Instructions (CALCRIM) (2017)

523. First Degree Murder: Hate Crime

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523.First Degree Murder: Hate Crime (Pen. Code, § 190.03)
If you find the defendant guilty of first degree murder [as charged in
Count ], you must then decide whether the People have proved
the additional allegation that the murder was a hate crime.
To prove this allegation the People must prove that the defendant
committed the murder, in whole or in part, because of the deceased
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 with (this/one or
more of these) actual or perceived characteristic[s]).
The defendant acted, in whole or in part, because of the actual or
perceived characteristic[s] of the deceased 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
murder.
If you find that the defendant had more than one reason to commit the
alleged murder, 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 with (this/one or more of these)
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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 this allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
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. (See People v. Marshall (2000) 83 Cal.App.4th 186,
193–195 [99 Cal.Rptr.2d 441]; Apprendi v. New Jersey (2000) 530 U.S. 466,
475–476, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].)
This statute was substantially revised, effective January 1, 2005. Prior to that time,
the statute was limited to murder committed because of the decedent’s disability,
gender, or sexual orientation.
Do not give CALCRIM No. 370, Motive, with this instruction because motive is an
element of this enhancement. (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].)
Give all relevant bracketed definitions. If the term “disability” is used, give
CALCRIM No. 1353, Hate Crime: Disability Defined.
AUTHORITY
• Murder That is a Hate Crime. Pen. Code, § 190.03(a).
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].
• 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).
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• Sexual Orientation Defined. Pen. Code, § 422.56(h).
• Association With Defined. Pen. Code, § 422.56(a).
Secondary Sources
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 542.
5Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.44 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.01[4][a][ii] (Matthew Bender).
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