8431 Making threats to interfere with freedom to enjoy a constitutional privilege

This page is http://www.lawyerdude.netfirms.com/8431.html

Taken from the Keith Henson story as relayed by Forrest Bishop on Tuesday, March 6, 2007

http://en.wikipedia.org/wiki/Keith_Henson

+ PENAL CODE SECTION 422.6-422.95

Making threats to interfere with freedom to enjoy a constitutional privilege

422.6. (a) No person, whether or not acting under color of law,

shall by force or threat of force, willfully injure, intimidate,

interfere with, oppress, or threaten any other person in the free

exercise or enjoyment of any right or privilege secured to him or her

by the Constitution or laws of this state or by the Constitution or

laws of the United States because of the other person's race, color,

religion, ancestry, national origin, disability, gender, or sexual

orientation, or because he or she perceives that the other person has

one or more of those characteristics.

(b) No person, whether or not acting under color of law, shall

knowingly deface, damage, or destroy the real or personal property of

any other person for the purpose of intimidating or interfering with

the free exercise or enjoyment of any right or privilege secured to

the other person by the Constitution or laws of this state or by the

Constitution or laws of the United States, because of the other

person's race, color, religion, ancestry, national origin,

disability, gender, or sexual orientation, or because he or she

perceives that the other person has one or more of those

characteristics.

be punished by imprisonment in a county jail not to exceed one year,

or by a fine not to exceed five thousand dollars ($5,000), or by

both that imprisonment and fine, and the court shall order the

defendant to perform a minimum of community service, not to exceed

400 hours, to be performed over a period not to exceed 350 days,

during a time other than his or her hours of employment or school

attendance. However, no person shall be convicted of violating

subdivision (a) based upon speech alone, except upon a showing that

the speech itself threatened violence against a specific person or

group of persons and that the defendant had the apparent ability to

carry out the threat.

422.7. Except in the case of a person punished under Section 422.6,

any crime which is not made punishable by imprisonment in the state

prison shall be punishable by imprisonment in the state prison or in

a county jail not to exceed one year, 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 perceives that the other person

has one or more of those characteristics, under any of the following

circumstances, which shall be charged in the accusatory pleading:

(a) The crime against the person of another either includes the

present ability to commit a violent injury or causes actual physical

injury.

(b) The crime against property causes damage in excess of five

hundred dollars ($500).

convicted previously of a violation of subdivision (a) or (b) of

Section 422.6, or has been convicted previously of a conspiracy to

commit a crime described in subdivision (a) or (b) of Section 422.6.

422.75. (a) Except in the case of a person punished under Section

422.7, a person who commits a felony or attempts to commit a felony

because of the victim's race, color, religion, nationality, country

of origin, ancestry, disability, gender, or sexual orientation, or

because he or she perceives that the victim has one or more of those

characteristics, shall receive an additional term of one, two, or

three years in the state prison, at the court's discretion.

(b) Except in the case of a person punished under Section 422.7 or

subdivision (a) of this section, any person who commits a felony or

attempts to commit a felony against the property of a public agency

or private institution, including a school, educational facility,

library or community center, meeting hall, place of worship, or

offices of an advocacy group, or the grounds adjacent to, owned, or

rented by the public agency or private institution, because the

property of the public agency or private institution is identified or

associated with a person or group of an identifiable race, color,

religion, nationality, country of origin, ancestry, gender,

disability, or sexual orientation, shall receive an additional term

of one, two, or three years in the state prison, at the court's

discretion.

subdivision (a) or (b) of this section, any person who commits a

felony, or attempts to commit a felony, because of the victim's race,

color, religion, nationality, country of origin, ancestry, gender,

disability, or sexual orientation, or because he or she perceives

that the victim has one or more of those characteristics, and who

voluntarily acted in concert with another person, either personally

or by aiding and abetting another person, shall receive an additional

two, three, or four years in the state prison, at the court's

discretion.

(d) For the purpose of imposing an additional term under

subdivision (a) or (c), it shall be a factor in aggravation that the

defendant personally used a firearm in the commission of the offense.

Nothing in this subdivision shall preclude a court from also

imposing a sentence enhancement pursuant to Section 12022.5,

12022.53, or 12022.55, or any other law.

(e) A person who is punished pursuant to this section also shall

receive an additional term of one year in the state prison for each

prior felony conviction on charges brought and tried separately in

which it was found by the trier of fact or admitted by the defendant

that the crime was committed because of the victim's race, color,

religion, nationality, country of origin, ancestry, disability,

gender, or sexual orientation, or that the crime was committed

because the defendant perceived that the victim had one or more of

those characteristics. This additional term shall only apply where a

sentence enhancement is not imposed pursuant to Section 667 or

667.5.

(f) Any additional term authorized by this section shall not be

imposed unless the allegation is charged in the accusatory pleading

and admitted by the defendant or found to be true by the trier of

fact.

(g) Any additional term imposed pursuant to this section shall be

in addition to any other punishment provided by law.

(h) Notwithstanding any other provision of law, the court may

strike any additional term imposed by this section if the court

determines that there are mitigating circumstances and states on the

record the reasons for striking the additional punishment.

(i) (1) "Because of" means that the bias motivation must 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 particular result.

(2) This subdivision does not constitute a change in, but is

declaratory of, existing law under In Re M.S. (1995) 10 Cal. 4th 698

and People v. Superior Court (Aishman)(1995) 10 Cal. 4th 735.

422.76. For purposes of Section 186.21, subdivisions (a) and (b) of

Section 422.6, Section 422.7, subdivisions (a), (b), (c), and (e) of

Section 422.75, Sections 1170.75 and 11410, paragraph (9) of

subdivision (b) of Section 11413, Section 13023, subdivision (c) of

Section 13519.4, and subdivision (a) of Section 13519.6, "gender"

means the victim's actual sex or the defendant's perception of the

victim's sex, and includes the defendant's perception of the victim's

identity, appearance, or behavior, whether or not that identity,

appearance, or behavior is different from that traditionally

associated with the victim's sex at birth.

422.8. Except as otherwise required by law, nothing in this title

shall be construed to prevent or limit the prosecution of any person

pursuant to any provision of law.

422.9. (a) Any willful and knowing violation of any order issued

pursuant to subdivision (a) or (b) of Section 52.1 of the Civil Code

shall be a misdemeanor punishable by a fine of not more than one

thousand dollars ($1,000), or by imprisonment in the county jail for

not more than six months, or by both the fine and imprisonment.

(b) A person who has previously been convicted one or more times

of violating an order issued pursuant to subdivision (a) or (b) of

Section 52.1 of the Civil Code upon charges separately brought and

tried shall be imprisoned in the county jail for not more than one

year. Subject to the discretion of the court, the prosecution shall

have the opportunity to present witnesses and relevant evidence at

the time of the sentencing of a defendant pursuant to this

subdivision.

responsibility for the enforcement of orders issued pursuant to

Section 52.1 of the Civil Code.

422.95. (a) In the case of any person who is granted probation for

any offense defined in Section 422.6, 422.7, 422.75, 594.3, or 11411,

the court may order that the defendant be required to do one or all

of the following as a condition of probation:

(1) Complete a class or program on racial or ethnic sensitivity,

or other similar training in the area of civil rights, or a one-year

counseling program intended to reduce the tendency toward violent and

anti-social behavior if that class, program, or training is

available and was developed or authorized by the court or local

agencies in cooperation with organizations serving the affected

community.

(2) Make payments or other compensation to a community-based

program or local agency that provides services to victims of hate

violence.

(3) Be required to reimburse the victim for reasonable costs of

counseling and other reasonable expenses that the court finds are the

direct result of the defendant's acts.

(b) Any payments or other compensation ordered under this section

shall be in addition to restitution payments required under Section

1203.04, and shall be made only after that restitution is paid in

full.

cities, and school districts to establish education and training

programs to prevent violations of civil rights and hate crimes.