What’s a Hate Crime in California?

If you’re wondering about that in light of recent events, here’s an overview.

California defines a hate crime as any crime that you commit, in whole or in part, because of a victim’s actual or perceived race, gender, religion, ethnicity, nationality, disability, sexual orientation, or association with those who bear these characteristics.

The phrase “in whole or in part” is important. It means you can be guilty of a hate crime even if your bias wasn’t the only thing that motivated you. It doesn’t even have to be the main thing, in fact, as long as it was a substantial motivating factor. Under the law, a substantial factor is more than a trivial or remote factor but not necessarily the sole or main factor.

The phrase “actual or perceived” is important, too. It means you can be guilty of a hate crime even if it turns out you were wrong about the victim’s race, gender, religion, ancestry, disability, sexual orientation, or associations. What matters is your motive and mental state, not whether the victim actually belonged to or associated with the group in question.

Beyond that, the law defines the other terms broadly, too. The term “victim” can refer to a single person, a group of people, or a place where people gather like an office, library, meeting hall, place of worship, public agency, or community center. The term “gender” includes a person’s sex at birth as well as his or her gender identity or gender-related appearance or behavior. The term “religion” includes atheism and agnosticism.

What are the possible charges and punishments?

The main hate-crime statutes are found in a section of the Penal Code that concerns civil rights, so let’s start there. See generally Pen. Code §§ 422.55–422.93.

First, it’s a misdemeanor if you interfere with people’s civil rights (like the right to vote) by force, threats, harassment, or damage to property. But you can’t be convicted for speech alone unless you threatened violence and had the apparent ability to carry out the threat. If convicted, you face imprisonment in the county jail for up to one year, a fine of up to $5,000, or both. You’ll also have to perform community service for up to 400 hours in one year.

Furthermore, the misdemeanor can be charged as a felony if you have a prior misdemeanor conviction, posed a threat of violent injury, caused actual physical injury, or caused property damage over $950. If convicted of a felony, you face imprisonment in the county jail for up to three years, a fine of up to $10,000, or both.

Finally, the government can charge any felony as a hate crime if it alleges and proves that you committed the crime out of bias toward the victim’s protected characteristics. If you’re convicted of that special allegation, the court will tack on an extra one, two, or three years to your prison sentence. Or if you’re found to have acted in concert with another person in committing the hate crime, the court will impose an extra two, three, or four years in prison. You’re more likely to receive the high terms if you used a gun, and if you have prior felony hate-crime convictions, you’ll get an extra year in prison for each one.

Is Spanking a Crime in California?

The Adrian Peterson story out of Texas may have you wondering.

Well, the short answer is no, but of course, it’s not that simple, and if you go too far in the eyes of the beholder, your spanking can get you charged with child abuse.

The primary California laws against child abuse punish anyone who “willfully inflicts upon a child any cruel or inhuman corporal punishment or an injury resulting in a traumatic condition.” Pen. Code § 273d. They also punish anyone who willfully causes or permits a child to suffer unjustifiable physical pain or mental suffering. Id. § 273a. Other, related laws also address child neglect, endangerment, sexual abuse, and emotional abuse, not to mention other, generally-applicable laws like those against assault or battery.

So, to be clear, you can be charged and convicted of child abuse any time you willfully inflict on a child “an injury resulting in a traumatic condition.” It’s definitely worse if your spanking was cruel or inhuman, but it need not be.

A “traumatic condition,” however, is not what it may sound like. Under the law, it can include any wound or bodily injury, however minor or serious. See CALCRIM No. 822. It doesn’t matter that you didn’t intend to leave a mark, only that you intended to deliver the spanking. People v. Atkins (1975) 53 Cal. App. 3d 348, 358.

If you argue that you spanked your child to discipline him, not to abuse him, then the state must prove that you were not disciplining him reasonably, and the court will likely instruct the jury that your spanking was justified if a reasonable person would find that some punishment was necessary under the circumstances and that your spanking was reasonable. People v. Whitehurst (1992) 9 Cal. App. 4th 1045.

The crime is a wobbler, which means it can be charged as a felony or a misdemeanor depending on the facts of the case and your criminal history. A misdemeanor conviction can put you in the county jail for up to one year, while a felony conviction can put you in county jail or state prison for two, four, or six years. Then there are sentencing enhancements. A second felony conviction within ten years, for example, tacks on an extra four years. And each conviction in which a child suffered “great bodily injury” results in a “strike” on your record under California’s three-strikes law.

What about spanking your child with something other than your hand? I’m glad you asked. In 1997, a California state senator posed that very question to the Office of the Attorney General: “Is it unlawful for a parent to spank a child for disciplinary purposes with an object other than the hand?” In response, the Attorney General published a formal opinion concluding that it was not unlawful for a parent to spank a child for disciplinary purposes with an object other than the hand, but the punishment must be “necessary and not excessive in relation to the individual circumstances.”

The bottom line is that it’s not a crime in California to spank your child, but it had better be reasonable. That means that the spanking must be necessary (or at least justifiable) and not excessive under the circumstances. In the end, however, what’s reasonable may depend on the opinion of a prosecutor and, ultimately, a jury, not you.

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