(a) Application This rule is intended to assist judges in sentencing in felony hate crime cases. It applies to: (1) Felony sentencing under section 422.7; (2) Convictions of felonies with a hate crime enhancement under section 422.75; and (3) Convictions of felonies that qualify as hate crimes under section 422.55. (b) Felony sentencing under section 422.7 If one of the three factors listed in section 422.7 is pled and proved, a misdemeanor conviction that constitutes a hate crime under section 422.55 may be sentenced as a felony. The punishment is imprisonment in state prison or county jail under section 1170(h) as provided by section 422.7. (Subd (b) amended effective January 1, 2017.)
(c) Hate crime enhancement If a hate crime enhancement is pled and proved, the punishment for a felony conviction must be enhanced under section 422.75 unless the conviction is sentenced as a felony under section 422.7. (1) The following enhancements apply: (A) An enhancement of a term in state prison as provided in section 422.75(a). Personal use of a firearm in the commission of the offense is an aggravating factor that must be considered in determining the enhancement term. (B) An additional enhancement of one year in state prison for each prior felony conviction that constitutes a hate crime as defined in section 422.55. (2) The court may strike enhancements under (c) if it finds mitigating circumstances under rule 4.423, or pursuant to section 1385(c) and states those mitigating circumstances on the record. (3) The punishment for any enhancement under (c) is in addition to any other punishment provided by law. (d) Hate crime as aggravating factor If the defendant is convicted of a felony, and the facts of the crime constitute a hate crime under section 422.55, that fact must be considered a circumstance in aggravation in determining the appropriate punishment under rule 4.421 unless: (1) The court imposed a hate crime enhancement under section 422.75; or (2) The defendant has been convicted of an offense subject to sentencing under section 1170.8. (e) Hate crime sentencing goals When sentencing a defendant under this rule, the judge must consider the principal goals for hate crime sentencing. (1) The principal goals for hate crime sentencing, as stated in section 422.86, are: (A) Punishment for the hate crime committed; (B) Crime and violence prevention, including prevention of recidivism and prevention of crimes and violence in prisons and jails; and(C) Restorative justice for the immediate victims of the hate crimes and for the classes of persons terrorized by the hate crimes.(2) Crime and violence prevention considerations should include educational or other appropriate programs available in the community, jail, prison, and juvenile detention facilities. The programs should address sensitivity or similar training or counseling intended to reduce violent and antisocial behavior based on one or more of the following actual or perceived characteristics of the victim: (F) Sexual orientation; or (G) Association with a person or group with one or more of these actual or perceived characteristics. (3) Restorative justice considerations should include community service and other programs focused on hate crime prevention or diversity sensitivity. Additionally, the court should consider ordering payment or other compensation to programs that provide services to violent crime victims and reimbursement to the victim for reasonable costs of counseling and other reasonable expenses that the court finds are a direct result of the defendant's actions. Rule 4.427amended effective 3/14/2022; amended effective 1/1/2017; adopted effective 1/1/2007.Advisory Committee Comment
Multiple enhancements for prior convictions under subdivision (c)(1)(B) may be imposed if the prior convictions have been brought and tried separately. (Pen. Code, Section 422.75(d).
In order to impose the upper term based on section 422.75, the fact of the enhancement pursuant to sections 422.55 or 422.6 must be stipulated to by the defendant or found true beyond a reasonable doubt at trial by the jury or the judge in a court trial.
Any enhancement alleged pursuant to this section may be dismissed pursuant to section 1385(c).
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