Penal Code 422.7 PC | Hate Crimes Misdemeanor Sentencing Enhancement

Penal Code 422.7 PC – Hate Crimes Misdemeanor Sentencing Enhancement in California

California Penal Code 422.7 PC is the state’s hate crime sentencing enhancement law for misdemeanors. It increases punishment when someone commits a misdemeanor motivated by the victim’s race, ethnicity, religion, nationality, disability, gender, or sexual orientation.

Some key points about PC 422.7:

• It increases the punishment for any misdemeanor by one, two, or three years in jail if hate crime factors are proven.
• The prosecution must prove the defendant committed the misdemeanor at least in part due to the victim’s protected characteristic.
• Common misdemeanors charged along with 422.7 include assault, vandalism, threats, and disturbing the peace.
• There are constitutional free speech protections, so 422.7 cannot punish bigoted beliefs alone – only criminal conduct motivated by bias.
• Judges have discretion whether to apply the full sentencing enhancement or a lesser amount based on the facts.
• The law has been controversial, with debates over its effectiveness and potential infringement on free speech. Supporters say it helps confront prejudice and sends a message of tolerance.

Legal Definition of California Penal Code 422.7 PC

The language of Penal Code 422.7 PC states that:

“Except in the case of a person punished under Section 422.6, any hate crime that is not punishable by imprisonment in the state prison shall be punishable by imprisonment in a county jail not to exceed one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by a fine not to exceed ten thousand dollars ($10,000), or by both that imprisonment and fine, if the crime is committed against the person or property of another for the purpose of intimidating or interfering with that other person’s free exercise or enjoyment of any right secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States and because of the other person’s race, color, religion, ancestry, national origin, disability, gender, or sexual orientation, or because the defendant perceived that the other person had one or more of those characteristics.”^[1]

This statute turns a misdemeanor into a “wobbler” offense – meaning it can be charged as either a misdemeanor or a felony – if the crime was motivated by bias against protected characteristics of the victim. It also allows for enhanced jail terms and fines.

When Does Penal Code 422.7 Apply?

For the sentencing enhancement under PC 422.7 to apply, the prosecution must prove the following:

• The defendant committed a misdemeanor offense under California law;
• The defendant committed the offense at least in part because of the victim’s actual or perceived race, ethnicity, religion, nationality, disability, gender, or sexual orientation; AND
• One of the following is true:
  • The offense involved force or threat of force against a person and the defendant had an apparent ability to carry it out;
  • The offense resulted in physical injury to a person;
  • The offense resulted in property damage of over $950; OR
  • The defendant was previously convicted of violating California’s main hate crime law – Penal Code 422.6 PC.

If the prosecution can prove these elements, then the misdemeanor can become a wobbler offense punishable by felony penalties. But the judge has discretion whether to impose the felony punishment or keep it as a misdemeanor.

Penalties Under Penal Code 422.7 PC

If charged as a misdemeanor, a violation of PC 422.7 may be punished by:

• Up to one (1) year in county jail;
• A fine of up to ten thousand dollars ($10,000); or
• Both such fine and imprisonment.

But if charged and convicted as a felony, the potential penalties increase to:

• Sixteen (16) months, two (2) years or three (3) years in California state prison; or
• Up to ten thousand dollars ($10,000) in fines.

The judge also has the discretion to grant felony or misdemeanor probation instead of incarceration. Probation terms may include counseling, community service, restitution fines, victim restitution, and other terms.

Legal Defenses to Penal Code 422.7 PC

There are several legal defenses that a California criminal defense attorney could use to contest hate crime sentencing enhancements under this statute. These include showing:

• No underlying misdemeanor – The enhancement cannot apply if the defendant did not commit a misdemeanor offense in the first place.
• Lack of bias motivation – The crime was not committed because of prejudice or hate against protected groups.
• Free speech protections – The defendant’s actions were constitutionally protected speech or expression.
• False accusations – The alleged victim falsely accused the defendant out of anger, revenge, or other motives.
• Mistaken identity – The defendant was misidentified and did not actually commit the crime.

An experienced criminal attorney can evaluate the evidence in the case and build an effective defense to contest these allegations in court.

Related Offenses

There are other California laws related to hate crimes, including:

• Penal Code 422.6 PC – California’s main hate crime law making certain acts of interfering with civil rights a misdemeanor. This is often charged along with 422.7.
• Penal Code 422.75 PC – The state’s hate crime sentencing enhancement law for felonies (as opposed to 422.7 which covers misdemeanors). It can add an additional one to three years to a felony sentence.
• Penal Code 11411 PC – Prohibits terrorizing or burning crosses on private property.
• Penal Code 302 PC – Prohibits disrupting a religious meeting.
• Penal Code 594.3 PC – Increases punishment for vandalism of places of worship.

Legal References:

• [1] – California Penal Code 422.7 PC. This code section states: “Except in the case of a person punished under Section 422.6, any hate crime that is not punishable by imprisonment in the state prison shall be punishable by imprisonment in a county jail not to exceed one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by a fine not to exceed ten thousand dollars ($10,000), or by both that imprisonment and fine, if the crime is committed against the person or property of another for the purpose of intimidating or interfering with that other person’s free exercise or enjoyment of any right secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States and because of the other person’s race, color, religion, ancestry, national origin, disability, gender, or sexual orientation, or because the defendant perceived that the other person had one or more of those characteristics.”
• People v. Lindberg (2008) 45 Cal.4th 1.
• In re M.S. (1995) 10 Cal.4th 698.