California Criminal Defense Blog

A Los Angeles man pled no contest to a hate crime and misdemeanor battery charges today in exchange for a six-month county jail sentence, three years of probation and psychological counseling.

The victim in this case complimented 35-year-old Johnny Rene Serrato on Serrato’s sunglasses as he was stepping onto a bus. Serrato…believing the victim was gay…beat the 39-year-old man, leaving him with a bloody nose, swollen cheek, bump on the head and multiple bruises.

California’s hate crime laws prohibit harming, threatening or harassing people based on their perceived race, national origin, disability, religion, sex, gender or sexual orientation. Whether or not the victim was gay is irrelevant – all that matters is that Serrato beat the victim because he believed he was gay.

But if, for example, Serrato and the victim had an argument…and Serrato punched the victim because he was antagonizing Serrato…the fact that he turned out to be gay would not subject Serrato to penalties under these hate crime laws. You only face hate crime penalties for crimes you commit against people solely based on animosity for the protected group. The fact that someone happens to belong to a protected group doesn’t matter unless his/her “membership” in that class supplied the motivation for the crime.

That’s the decision that the Los Angeles District Attorney will make this Friday regarding three Calabasas high school students. This question was triggered by the numerous swastikas, racial slurs and picture of Adolf Hitler that the students painted on walls, lockers and sidewalks at the school. Normally this type of graffiti would undoubtedly prompt the D.A. to charge the suspects with a hate crime. However, the office hasn’t yet decided whether to go this route or whether to simply charge the students with vandalism.

California and federal hate crime legislation impose severe penalties upon those individuals who harm, threaten or harass others based on their race, national origin, disability, religion, sex, gender or sexual orientation. Clearly the type of graffiti that was left at the school meets this criteria.

It appears that the D.A. is wavering because the students who allegedly committed this crime may have been “bullied” into doing so. These students maintain a 4.0 grade point average, have no criminal history and apparently have been “picked on” by several students whose names the suspects “tagged” at the school.

If prosecuted as hate crimes, the 11th grade students could face felony convictions that could lead to spending a substantial number of years in the state prison. However, vandalism is a less serious offense and is typically prosecuted as a misdemeanor, subjecting an offender to a maximum one-year in a county jail.

Three defendants in New Mexico will be the first to be tried under the new federal hate crimes legislation that President Obama signed into law in October 2009. Known as The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, this hate crimes law expanded the nation’s older hate crimes law that

1) required an individual to be involved in a “federally protected activity” (such as attending school or voting) before he/she could become the victim of a hate crime, and

2) didn’t afford hate crime protection to victims based on gender, gender identity, sexual orientation, or disability.

In this case, the three defendants allegedly shaped a coat hanger into a swastika, placed it on a heated stove and then branded it onto the arm of a 22-year-old mentally disabled Navajo man. They also shaved a swastika onto the back of the victim’s head and used markers to write hate messages on the victim’s body, all making reference to “white supremacy”.

If convicted, each defendant could face up to ten years in prison.

It is also important to note that many states have their own hate crimes laws. In fact, California’s hate crimes laws are among the toughest in the nation. If you commit a hate crime in a state that has its own hate crimes legislation, you could face charges under state and federal law, subjecting you to even more severe penalties.