F 9.95

F 9.95 n1 Hate Crimes: Constitutionality (PC 422.7).

See FORECITE F 523 Note 1.

F 9.95 n2 Hate Crimes: Causation (PC 422.6; PC 422.7; PC 422.75).

The phrase “because of” as used in PC 422.6, PC 422.7 and PC 422.75 requires that the impermissible bias motivation be a “cause in fact” of the offense, whether or not other causes also exist. When multiple concurrent motives exist, the prohibited bias must be a substantial factor in bringing about the crime. (See In re M. S. (95) 10 C4th 698, 718-20 [42 CR2d 355]; People v. Sup Ct (Aishman) (95) 10 C4th 735, 741 [42 CR2d 377].)

In her concurring opinion in In re M. S., Justice Kennard stated her view that the majority opinion requires the prosecution to prove “either (1) the conduct would not have occurred in the absence of the bias motives or (2) the biased and non-biased motives are independent of each other and the biased motives would have been sufficient to produce the conduct even in the absence of all non-biased motives.” These elements must be proven in order to establish that the bias motivation was a “cause in fact.” (10 C4th at 732.)

In order to establish that the biased motive was a “substantial factor,” both the majority and Justice Kennard suggest that the term “substantial factor” should generally be deemed self-defining. (10 C4th at 733.)

See FORECITE F 9.95 n1.

RESEARCH NOTE: For additional information on hate crimes, see Should Hate Be Punishable (The Recorder, December 28, 1992) and For ACLU, Hate Crimes Are a Divisive Issue (The Recorder, December 28, 1992).

F 9.95 n3 Hate Crimes: Mens Rea (PC 422.7).

PC 422.6 and PC 422.7 impose criminal liability for conduct which is intended to deprive another individual of his or her civil rights. The statutes do not require that the prosecution prove the defendant acted with knowledge of particular provisions of state or federal law or that the defendant was even thinking in those terms. However, they do require a specific intent to deprive an individual of a right secured by federal and/or state law. (People v. Lashley (91) 1 CA4th 938, 947-49 [2 CR2d 629].)

People v. MacKenzie (95) 34 CA4th 1256, 1276-78 [40 CR2d 793] held that CJ 9.95 correctly instructs the jury that the perpetrator must have “the specific intent to intimidate or interfere with the alleged victim’s free exercise or enjoyment of any right secured to him by the Constitution or laws of California or the United States, specifically, the right to be free from the threat of violence ….” MacKenzie held that since Civil Code (CC) 51.7, which was passed at the same time as PC 422.7, specifically protects individuals from “intimidation by threat of violence,” then intent to interfere with this right is sufficient to satisfy the statute. In so holding, the court rejected the defendant’s argument that the statute should not be read to reach “all violent conduct committed against others because of their protected status.” MacKenzie, 34 CA4th at 1278 [emphasis in original]. The court concluded that the Legislature was well within its power to make the statute applicable in this manner. (Ibid.)

See FORECITE F 9.95 n1.

F 9.95 n4 Hate Crimes: Constitutionality (PC 422.6).

In re M. S. (95) 10 C4th 698 [42 CR2d 355], held that PC 422.6 is not unconstitutionally overbroad and does not punish speech protected by the First Amendment.

See FORECITE F 9.95 n1.

F 9.95 n5 Hate Crimes: PC 422.75(a) Requires The Defendant To Personally Possess The Requisite Mental State.

PC 422.75(b) provides a sentence enhancement for “hate crimes” committed in concert while PC 422.75(a) provides for a lesser enhancement when there is no “in concert” or aiding and abetting participation. Because aiding and abetting and in concert are omitted from PC 422.75(a), settled rules of statutory construction require that the defendant personally harbor the requisite mental state. (See, People v. Walker (76) 18 C3d 232, 241-42 [133 CR 520].) [See Brief Bank # B-658 and Opinion Bank # O-193 for the unpublished opinion in People v. Wilson UNPUBLISHED (4/21/95, C016870) and the briefing addressing this issue.]

See FORECITE F 9.95 n1.

F 9.95 n6 Hate Crimes (PC 422.75).

See FORECITE F 9.95 et.al.; FORECITE F 17.24.1b.