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.

Criminal Threats in California

Speaking of criminal threats, make no mistake about it: running your mouth can get you arrested for, charged with, and convicted of a felony or misdemeanor, even if you thought you were just ranting or blowing off steam. See Pen. Code § 422. And if it’s a felony, it’s punishable by up to three years in state prison.

So what does it take to convict you? Well, it ain’t easy. The statute and case law say that the government must prove six things:

  1. That you willfully threatened to kill or cause great bodily injury to someone or that person’s immediate family. The term great bodily injury refers to a substantial or significant physical injury, not a minor or moderate one. But “immediate family” can include someone that the person has lived with for just the last six months.
  2. That you made the threat orally or in writing, including by electronic communication. So purely nonverbal gestures don’t count. See People v. Franz (2001) 88 Cal. App. 4th 1426, 1439-42.
  3. That you intended that your statement be understood as a threat.
  4. That your threat was so clear, immediate, unconditional, and specific that it bespoke a serious intention and the immediate prospect of its being carried out. But even arguably ambiguous words can qualify based on the circumstances. People v. Butler (2000) 85 Cal. App. 4th 745, 753-54.
  5. That the threat did, in fact, cause your target to be in sustained fear for his or her safety or that of the immediate family. Sustained fear means more than what’s momentary, fleeting, or transitory. In re Ricky T (2001) 87 Cal. App. 4th 1132, 1139-41.
  6. That your target’s fear was reasonable under the circumstances.

So it ain’t a gimme, but I wouldn’t chance it. A felony conviction is considered a “serious felony” and, therefore, a strike under the Three-Strikes Law. See Pen. Code § 1192.7(c)(38). Plus, even a misdemeanor conviction may be considered a crime of moral turpitude that affects your professional license or immigration status. See People v. Thornton (1992) 3 Cal. App. 4th 419, 422-24. So find another way to give that jerk a piece of your mind.

By the way, it doesn’t matter if you didn’t intend to carry out the threat. Pen. Code § 422(a). Nor does it matter that you conveyed the threat to someone else entirely, if the government can prove that you intended for it to be communicated to your target. People v. Felix (2001) 92 Cal. App. 4th 905, 911-13; In re Ryan D. (2002) 100 Cal. App. 4th 854, 861-62. And even if your target never receives the threat, you can still be convicted of an attempted criminal threat if the government proves that you intended to make a threat that was sufficient to cause sustained fear in a reasonable person. People v. Chandler (2014) 60 Cal. 4th 508, 525.

So take a deep breath, instead, and walk away. Loose lips, as they say, sink ships.

Social Media is not Words with Friends

Speaking of the U.S. Supreme Court, the high court delivered another interesting opinion on Monday, this time in a case that confronted tough questions about the line that separates free speech from criminal threats.

The defendant was a 27-year-old man whose wife left him in May 2010, taking their two young children with her. The couple had been married for nearly seven years, so apparently they’d met very young, and he didn’t take the split well.

The defendant listened to rap music and was active on Facebook, so he adopted a pen name, Tone Dougie, and he began posting self-styled rap lyrics that were laden with violent language and imagery about his estranged wife. The lyrics were interspersed among other, mundane posts about a movie he liked or a comedian he followed, but they definitely stood out. The defendant posted disclaimers that these rants were fictitious, and he explained to others that they helped him process his feelings. Once, he commented, “Art is about pushing limits. I’m willing to go to jail for my Constitutional rights. Are you?”

His wife didn’t share his sense of artistic license, however; she obtained a restraining order against him, and the authorities began monitoring his social-media activity. They even paid a visit to his home. It doesn’t appear that he ever violated the restraining order, but he kept posting lyrics, and he began taking shots at the authorities, too.

These activities got him charged with five counts of violating 18 U.S.C. § 875(c), which makes it a federal crime to transmit a communication containing any threat to injure the person of another. It’s a felony punishable by up to five years in prison. The hook for federal jurisdiction is if you transmit the threat in interstate commerce, but nowadays, with the internet, that’s rarely a sticking point. The five counts against him were for threatening his wife, the police, an FBI agent, the local elementary schools, and the patrons and employees of the amusement park he worked at. Not in that order, necessarily, and likely to varying degrees. Mostly, I imagine, it was about his wife and related life circumstances.

At trial, the defendant testified, among other things, that his posts emulated the lyrics of rap artists like Eminem and that he’d posted “nothing … that hasn’t been said already.” At the close of trial, he asked the court to instruct the jury that, to convict him, it must find that he intended to communicate a threat. Instead, the court instructed the jury that it need only decide whether he communicated what a reasonable person would regard as a threat. Based on that instruction, the jury convicted him on four of the five counts, acquitting him of threatening the park patrons and employees. The defendant was sentenced to 44 months in prison followed by three years of probation.

On appeal, the defendant again argued that, to be guilty, he must have intended his posts to be threats, but the court of appeals disagreed, holding that the law required only that a reasonable person would regard them as such.

In a 8-1 decision, the Supreme Court reversed the case and sent it back. The Court agreed that Section 875(c) was silent on what kind of mental state makes a person guilty of the crime, but it held that this silence didn’t mean no mental state was required. Rather, under the bedrock, common-law principle of mens rea, which “took deep and early root in American soil,” a defendant’s mental state is the crucial element that separates innocent conduct—or even wrongful conduct—from criminal conduct.

Based on this principle, the Court held that negligence could not support a conviction under Section 875(c), and it reversed the case on that ground. In doing so, it considered the following examples from its own, prior cases:

  • Did you take someone else’s property? Then you can’t be guilty of stealing if you thought the property was abandoned.
  • Did you sell drug paraphernalia? You can’t be guilty if you didn’t know the stuff was for using drugs.
  • Did you misuse government benefits in some way? You can’t be guilty of a crime if you didn’t know you couldn’t use them that way.
  • Did you share child pornography? You can’t be guilty if you didn’t know the pornography depicted actual minors.

In each of these cases and others, you can’t be guilty of a crime without a guilty state of mind, even if someone else decides, after the fact, that a hypothetical reasonable person would’ve known differently.

So too, the Court held, with Section 875(c).

What is enough? Well, it’s definitely enough if you communicate a threat for the purpose of making a threat or with knowledge that it will be viewed that way.

What if you’re reckless about it? That question wasn’t presented on appeal or briefed by the parties, so the Court didn’t decide it, which is wise if the Court wants to decide it carefully on the basis of concrete facts. But the question may arise again in this very case on remand, and in any event, it may not take long for the question to present itself. As one Supreme Court justice once observed, “The life of the law has not been logic; it has been experience.”

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