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Bay Area Hate Crime Attorney

A hate crime is a criminal offense motivated by bias. Some crimes lack intent or motivation entirely, such as a DUI. Other crimes, like burglary, are done in the self-interest of the individual committing the crime, with no regard for the identity of the victim. Hate crimes, by contrast, have targeted victims, committed on account of the victim's sexual orientation, gender, nationality, race, religion or disability. If an offense is characterized as a hate crime, it will enhance the penalties of the same crime if it had been committed under 'neutral' circumstances, at least neutral with regard to the aforementioned factors.

In today's political climate, hate crimes have never been more heatedly prosecuted; the prosecution and the public alike are quick to assume the worst of someone accused of a hate crime, without taking into account the nuances, unique circumstances under which an alleged hate crime occurred, or the possibility of the accused's innocence. All those accused of a hate crime in California are entitled to expert legal representation by a criminal defense attorney willing to hear their side of the story and build a correspondent defense. A hate crime conviction can be extremely damaging and a detriment to the accused for years to come, particularly in the professional sphere.

If you have been accused of a hate crime in California, immediately seek out legal assistance by consulting with a California criminal defense attorney.

Hate Crimes in California

There are a spectrum of crimes that can be charged as hate crimes in California, if the victim alleges the perpetrator was motivated by a bias against their race, nationality, sexual orientation etc. Assault, battery, vandalism, harassment, verbal harassment, rape and theft are among the crimes that can be charged as a hate crime.

The law is fairly straightforward in how it identifies alleged hate crimes. According to California penal law, the offense must clearly satisfy two elements:

1. There is evidence of a crime, such as assault or vandalism

2. There is evidence that this crime was motivated, in part or in whole, by the victim's race, nationality, sexual orientation etc.

Interfering with a citizen's civil rights or damaging their property because of any of the aforementioned characteristics is a standalone crime.

A crime will still be considered a hate crime if it turns out the discriminated person did not actually have the characteristics the perpetrator thought them to have. Acting on a "perceived characteristic" is equally frowned upon under California law. A bias against the person's race, sexual orientation etc need not be the only factor motivating the attack in order to be tried as a hate crime. This can create a blurry legal line if an alleged hate crime is committed and there is evidence that the accused held a certain bias, but the bias itself may not have been the motivating factor of the crime.

For example, an openly homophobic individual with no criminal record gets into a heated argument with a homosexual man; in the course of the argument, he punches the homosexual man, breaking his nose. While the assault may not have been directly motivated by the homophobic man's bias, it may be considered a hate crime and charged as such. The distinction between a hate crime assault and non-hate crime assault is critical because the hate crime distinction will enhance the penalties. If a person did not act out of bias, they should not be charged as though they did. Privately held bias is not against the law. A relation between a crime and a privately held bias should not be assumed by a prosecutor. Often, it is.

Does Hate Speech Constitute A Hate Crime?

Because the US constitution protects free speech, hate speech in and of itself is not a crime. However, it can be charged as a hate crime under certain circumstances. Under California Penal Code 422.6 Pc, hate speech rises to the level of an actionable hate crime if:

  • the hate speech threatens violence and the speaker has the apparent ability to carry out the threat they are making

Therefore, it is within a person's legal rights to speak hatefully toward a person on account of their race, sexual orientation, etc. But this person will not be charged with a crime unless they make a feasible threat. If a threat is completely outlandish, however, it may not be considered actionable.

For example, if a man stands outside of a newly erected Mosque and shouts at those entering that he will burn down "every Mosque in the country" if they don't move out of the city, while this is hate speech and the man has made a threat, he could not realistically burn down every Mosque in the country. The man is speaking hyperbolically, for effect. However, it can be difficult to know when a threat is empty, exaggerated, or pure hyperbole. If law enforcement is being cautious, they may still investigate the threat or charge the individual who made it. In the heat of a moment, a person may make a hyperbolic statement that they have no real intention of acting on and still be prosecuted for it. An experienced California criminal defense attorney will be of assistance if you've been charged with a hate crime stemming from an exaggerated or misinterpreted statement.

How Hate Crimes Are Prosecuted

In order to prevail on a standalone hate crime charge, the prosecutor must show: the crime meets the legal definition of "hate crime," prove beyond a reasonable doubt that the defendant committed it, that they intended to interfere with the victim's legal rights, and any one of the following occurred:

a. The defendant caused the victim or at least had the ability to cause injury to the injury to victim

b The defendant caused property damage greater than $950

c. The defendant has previously been convicted of a hate crime in California.

If the prosecutor can prove the crime satisfies all of these criteria, the offense becomes a "wobbler," or crime that can be charged as a misdemeanor or felony. It is up to the prosecutor in the case. This is assuming that the crime in question was not a stand-alone felony, in which case the defendant would receive an additional 1, 2 or 3 years in prison.

Specific offenses are already legally defined felonies when committed as a hate crime. For example, vandalism committed as a hate crime and directed at a particular religion in a place of worship or a religious educational institution will be prosecuted as a felony rather than a misdemeanor. Murder as a hate crime, at maximum, could be punished by life in prison without the possibility of parole.

Penalties For Hate Crimes in California

Because "hate crime" is a characterization of a criminal charge, meant to enhance its existent penalties, the penalties for hate crimes are not uniform or graduated in scale. They depend on the underlying crime.

For standalone misdemeanor hate crimes that interfered with or denied someone the ability to exercise constitutional rights, the penalties are:

  • Misdemeanor (summary) probation
  • Up to one (1) year in county jail
  • A fine of up to five thousand dollars ($5,000) and/or
  • Up to four hundred (400) hours of community service.

If the prosecutors opt to charge a wobbler as a felony, the penalties are:

  • Felony (formal) probation
  • Sixteen (16) months
  • two (2) years or three (3) years in prison, and
  • A fine of up to ten thousand dollars ($10,000)

Hate crimes committed with a gun will see additional enhancement of sentencing on account of the use of a firearm.

Charged With a Hate Crime in California?

There are a number of solid legal defenses to hate crime charges which your attorney can employ. They may be able to prove you are not guilty of the underlying offense, that there was a case of mistaken identity or that the crime was not in fact motivated by bias. Contact a California criminal defense attorney immediately for a free consultation.

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