PEOPLE v. BAKER

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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Frank Robert BAKER, Defendant and Appellant.

No. G013054.

Decided: December 15, 1993

Martin Nebrida Buchanan, San Diego, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Keith I. Motley, Supervising Deputy Atty. Gen. and Demetra P. Lewis, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

Frank Robert Baker was convicted of robbery, assault with great bodily injury, battery with serious bodily injury and simple battery on Jose Olguin.   The jury also found he committed these offenses “because of the victim's race, color, religion, nationality, [or] country of origin ․ and who voluntarily acted in concert with another․”  (See Pen.Code, § 422.75, subd. (b), infra, fn. 1.)   At sentencing, Baker admitted the special allegation that he had a prior serious felony conviction.   The court sentenced him to 10 years in state prison.1  On appeal, he contends the “hate-crime-in-concert” enhancement was unconstitutional, the trial court's instructions were erroneous and certain evidence involving his codefendant, Michael Pryne, was improperly admitted in their joint trial.   We affirm.

FACTS

I

Jose Olguin was born in Mexico City and moved to Orange County in 1989.   He worked as a dental assistant in Garden Grove and lived in Santa Ana.   When he left work one evening for home, he missed the last bus and decided to hitchhike.   Two men in a white pickup truck gave him a ride.   One of the men—later identified as Baker—asked him if he had any beer, marijuana or cocaine.   Olguin said he “did not do such things.”   The driver—later identified as Baker's codefendant, Michael Pryne—asked him where he was going.   He told them he wanted to go to the City Mall in Orange where there was a bus station.   Pryne asked how much money he had on him.   When Olguin said he had only $2, Pryne told him he would drive him there for that amount.   Olguin took the $2 from his fanny pack, handed it to Pryne and jumped into the back of the truck.

At one point during the journey, Pryne stopped the truck, and both he and Baker relieved themselves by the side of the road.   Pryne then handed the $2 back to Olguin, saying it was no trouble driving him to the City Mall.   They got back into the cab of the truck and drove on, parking in the back of the lot near a restaurant in the mall area.   Olguin got out.   Simultaneously, Pryne got out of the cab, approached him and demanded the $2.   Olguin gave it to him, and Pryne asked Olguin where he was from and said “you speak so funny.”   Olguin replied he was from Mexico.   Baker interjected, “A Mexican?   Oh, shit.   We hate Mexicans.”   Pryne joined in, saying “Yeah, we hate those bastards, Mexicans.”   Then they both related a recent trip they took to Mexico to “do a few things right down there,” implying they attacked Mexicans.

Olguin, fearing for his safety, tried to mollify the two men.   He handed them his business card, offering to return their “favor” of giving him a ride.   Pryne, however, demanded to know what was in Olguin's fanny pack.   When Olguin denied having anything of value, Pryne attacked him, hitting him on the left side of his head.   Baker then jumped into the fray, and they both pounded Olguin with their hands and fists.   Shouting, they repeatedly called him a “bastard Hispanic” and said they were going to kill him.

Olguin fell after being struck in the head.   Baker grabbed Olguin's head and neck and held him in a choke hold from behind, while Pryne viciously kicked him.   Olguin lost strength and felt numbness creeping over him.   He threw his watch on the ground, hoping they would take it and leave him.   They did not.   Baker continued strangling him with his arm wrapped around his neck.   Pryne then grabbed Olguin's fanny pack and picked up the watch.   Baker muttered as he choked him, “we're gonna kill you.   You are going to die right here.”

Suddenly, a car drove into the lot, and Pryne ran to the pickup, yelling at Baker to “hurry up [and] let's get outa here.”   Baker squeezed his neck one last time, then kicked him hard and ran to the truck.   Pryne stepped on the gas, and the truck sped away.

The car that pulled into the lot was occupied by two men, Anthony Kemper and William Travis.   They noticed something suspicious in the parking lot and decided they better find out what was going on.   As they approached the truck, it sped off;  they noticed a lone figure on the ground and asked if they could help.   Olguin told them he had just been beaten and robbed.   They decided to follow the truck and get the license number, which they did.   Once they had the number, they returned to Olguin who then called the police.

Within 30 minutes, the police spotted a pickup truck with two male occupants which matched the description given by Olguin.   The truck was stopped, Olguin and the two witnesses arrived, and Baker and Pryne were identified by all three.   The police searched the pickup and found various credit cards in the name of Jose Olguin, and Olguin identified the watch on Baker's wrist as his own.   Baker had two $1 bills in his pants pocket.

By the time the identification procedure was over, Olguin's health was terrible.   He originally rejected medical aid by the paramedics, but when his head began throbbing, he decided he needed hospitalization even though he did not have medical insurance.   He spent the night in the hospital where the doctors prescribed pain killers.

At trial, Pryne was ordered to display the backs of his elbows:  the left was tattooed with the word, “white,” and the right tattooed with the word, “pride.”   The court instructed the jury it could only use this evidence against Pryne alone;  it could not consider it in their deliberations concerning Baker.

DISCUSSION

IIThe “Hate–Crime–in–Concert” Enhancement

Baker contends the two-year enhancement he received pursuant to section 422.75, subdivision (b) was unconstitutional.  Section 422.75, subdivision (b) increases the sentence for any felony committed on a person “because of” his or her race, religion, or national origin when done in concert with another.   Baker argues the enhancement violates the First Amendment by punishing protected speech.   We disagree.

 Baker challenges the constitutionality of the statute for the first time on appeal.   He may do so;  it is a question of law relating to the enforcement of a penal statute which eliminates the need to voice an objection at trial.  (In re Mazoros (1977) 76 Cal.App.3d 50, 54, 142 Cal.Rptr. 609;  see Hale v. Morgan (1978) 22 Cal.3d 388, 394, 149 Cal.Rptr. 375, 584 P.2d 512.)

Baker's attack is three-pronged:  (1) the enhancement statute penalizes protected areas of thought and speech;  (2) it is overbroad;  and (3) it is impermissibly vague.   All three issues are addressed in the recent case, Wisconsin v. Mitchell (1993) 508 U.S. 476, 113 S.Ct. 2194, 124 L.Ed.2d 436.  (See also In re Joshua H. (1993) 13 Cal.App.4th 1734, 17 Cal.Rptr.2d 291, which discusses the same arguments as they apply to the general hate-crime statute, section 422.7.)   We apply and follow Mitchell and the analogous discussion in Joshua H.

In Mitchell, the United States Supreme Court unanimously upheld the constitutionality of a statute enhancing the penalty for any crime perpetrated on a victim selected “because of [his or her] race, religion, color, disability, sexual orientation, national origin or ancestry․”  (Mitchell, supra, 508 U.S. at p. ––––, 113 S.Ct. at p. 2197.)   Mitchell attacked the statute, contending it violated his First Amendment right to freedom of speech and was overbroad.   The Supreme Court first noted the statute punishes bigoted conduct, not just speech.2  It then analyzed whether a defendant's motive for the crime as a factor in fixing the sentence passes constitutional muster, particularly when that motive is the perpetrator's “abstract belief.”   (Compare Tison v. Arizona (1987) 481 U.S. 137, 156, 107 S.Ct. 1676, 1687, 95 L.Ed.2d 127 [defendant's mental intent at time of victim's murder by accomplice is crucial in assessing culpability and punishment] and Haupt v. United States (1947) 330 U.S. 631, 67 S.Ct. 874, 91 L.Ed. 1145 [permissible to use Haupt's earlier statements to prove his treasonous acts were motivated by an “adherence to the enemy” rather than “parental solicitude”] with Dawson v. Delaware (1992) 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 [court cannot use a capital defendant's membership in white supremacy group as evidence in fixing penalty at death for murder].)   Holding that “the First Amendment does not protect violence,” the court emphasized a person's motive was the most appropriate evidence to use to fix the punishment with the crime.   (Mitchell, supra, 508 U.S. at p. –––– – ––––, 113 S.Ct. at pp. 2200–2201.)

 The “primary responsibility for fixing criminal penalties lies with the legislature.”  (Mitchell, supra, 508 U.S. at p. ––––, 113 S.Ct. at p. 2200.)   The legislative declaration behind the statute in Mitchell—as well as that expressed for section 422.75—singles out criminal conduct which is bias-inspired for greater punishment than that committed as run-of-the-mill malfeasance.   Hate crimes “inflict greater individual and societal harm.   For example, ․ bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest․  The State's desire to redress these perceived harms provides an adequate explanation for its penalty-enhancement provision over and above mere disagreement with offenders' beliefs or biases.” 3  (Id. at p. ––––, 113 S.Ct. at p. 2201.)   Thus, the Supreme Court simultaneously disposed of Baker's arguments attacking section 422.75 when it resolved Mitchell's contentions against the almost-identical Wisconsin enhancement.   Even if the proscribed conduct may represent “nonverbal communication,” the state may legitimately restrict and regulate it when there is “a sufficiently important governmental interest” in doing so.   (United States v. O'Brien (1967) 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672.)  “[T]he government has a legitimate and even compelling interest in distinguishing between acts of violence randomly committed and acts of violence committed because the victim is a member of a racial, religious or other protected group.  [Citation.]  It is the selection of a victim because of his or her race or other status, not the reason for that selection (intolerance, xenophobia, vengeance, fear, to impress others, and so forth) that triggers the additional punishment imposed by the hate crime statutes.”   (Joshua H., supra, 13 Cal.App.4th at pp. 1751–1752, 17 Cal.Rptr.2d 291.)

Baker's contention that the hate-crime enhancement is overly broad is laid to rest as well by the rationale of Mitchell.   Mitchell contended the hate-crime enhancement had a “chilling effect” on free speech:  a perpetrator, knowing any future sentence would be increased if he expressed his bigoted opinions, would be unconstitutionally inhibited to express his thoughts for fear such declarations might later be used against him as evidence of his motive for committing any particular crime.   To this argument, Baker adds that the enhancement does not increase all sentences for any professed motive, only disfavored motives such as racial animus.   Thus, the Legislature has involved itself in verbal censorship, criminalizing “politically incorrect” statements.

In its unanimous decision in Mitchell, the Supreme Court dismissed the issue, noting whatever chilling effect may occur, it is “far more attenuated and unlikely than that contemplated in traditional ‘overbreadth’ cases․  To stay within the realm of rationality, we must surely put to one side minor misdemeanor offenses covered by the statute․  [And the prospect of it happening in serious cases] is simply too speculative a hypothesis to support [the] overbreadth claim.”  (Mitchell, supra, 508 U.S. at p. ––––, 113 S.Ct. at p. 2201.)

 The clear purpose of the whole statutory scheme of sections 422.6–422.95 is the prevention of hate crime, a major societal evil.   The state has a pressing and legitimate interest in promoting and maintaining racial and ethnic tolerance and harmony.   Virtually every culture and religion on earth is represented in California society.   The promotion of racial and ethnic harmony is a legitimate and desirable—even necessary—legislative goal.   Addressing the heightened danger of crimes motivated by bigotry more than adequately explains the enhancement statute.   Disagreement with an offender's obnoxious beliefs is an irrelevant, if not nonexistent, component of the legislative intent.  (Mitchell, supra, 508 U.S. at p. ––––, 113 S.Ct. at p. 2201.)   The use of the perpetrator's statements explaining his criminal conduct has been routinely used to prove the mental state of a criminal offender.   As long as such expressions meet evidentiary limitations—i.e., relevance, voluntariness, probity over prejudice—they must be available as proof in a criminal trial if it is the “serious and dedicated search for the truth” (People v. Galante (1983) 143 Cal.App.3d 709, 711, 192 Cal.Rptr. 184) it is supposed to be.  “The Constitution does not erect a per se barrier to the admission of evidence of one's beliefs and associations ․ simply because those beliefs and associations are protected by the First Amendment.”   (Dawson v. Delaware, supra, 503 U.S. at p. ––––, 112 S.Ct. at p. 1097, 117 L.Ed.2d at p. 317.)

 Finally, Baker opines section 422.75 is unconstitutionally vague because it fails to define the phrase, “because of.”   He contends it is also vague because it fails to establish what proportion of the perpetrator's motivation is comprised of the disfavored hatred, and it fails to give adequate notice to the public of the proscribed conduct.   We are required to uphold a statute “unless [its] unconstitutionality clearly, positively, and unmistakably appears.  [Citations.]  A statute should be sufficiently certain so that a person may know what is prohibited thereby and what may be done without violating its provisions, but it cannot be held void for uncertainty if any reasonable and practical construction can be given to its language.   [Citation.]”  (Walker v. Superior Court (1988) 47 Cal.3d 112, 143, 253 Cal.Rptr. 1, 763 P.2d 852, internal quotation marks omitted.)

The same issues were addressed in Joshua H., supra, 13 Cal.App.4th 1734, 17 Cal.Rptr.2d 291, the case which upheld the constitutionality of the hate crime under section 422.7,4 not the hate-crime enhancement of section 422.75.   However, Joshua H. focused on the identical phrase, “because of,” in its analysis of the hate crime that we must scrutinize in this attack on the enhancement.   Thus, we draw on Joshua H.'s rationale by analogy.

 Joshua H. accepted the common understanding of the phrase to mean that bigoted hatred is a direct cause leading to the selection of the victim.   (Joshua H., supra, 13 Cal.App.4th at p. 1753, 17 Cal.Rptr.2d 291.)   Concededly, the degree to which the hatred comprises the reason for the selection is not explicitly stated in the statute.   But it makes no sense to interpret “because of” to mean the statute applies only where race, color, or ethnicity is a de minimis factor in the selection process.   In light of the legislative rationale behind hate crime statutes, such an interpretation would be absurd.  (See State v. Mitchell (1992) 169 Wis.2d 153, 485 N.W.2d 807, 827 (dis. opn. of Bablitch, J.), the decision which was reversed by the United States Supreme Court in Wisconsin v. Mitchell, supra, 508 U.S. 476, 113 S.Ct. 2194.)   Thus, the statute must be construed to apply when the hatred involved comprises a substantial factor in the selection process.5

Here, this standard was met.   The facts indisputably demonstrated that the only reason Olguin was beaten was because he was Mexican.   Pryne even returned Olguin's money to him en route to the mall, and became belligerent only after he was told Olguin was from Mexico.   More significantly, the robbery did not occur until after the beating.   Olguin even tossed away his watch in the hopes they would take it and leave, a ploy which was unsuccessful because Baker and Pryne were not motivated by a desire to take his property.   Because of their bigotry, they wanted to pummel poor Olguin;  the robbery was an afterthought.   Their real purpose was to beat a Mexican senseless—indeed, even kill him.

III

The Jury Instruction for Section 422.75

 Baker contends the trial court erred in its jury instruction regarding section 422.75 because it failed to define the phrase, “because of,” sua sponte.   He opines the statute is unconstitutionally vague for failing to define the phrase.   But even if it is not, the court's failure sua sponte to tell the jury it must find the victim would not have been selected “but for” his race or national origin renders the verdict inherently defective.   We disagree.

The following instruction was read to the jury:  “The People have the burden of proving the truth of this allegation.   If you have a reasonable doubt that it is true, you must find it to be not true․  Now, it is alleged also that at the time of the commission of the crimes charged in counts I and II or any lesser-included crime thereto of the information, the defendants ․ Baker and ․ Pryne committed such crime against the person because of the person's race, color, nationality[,] country of origin, or ancestry and the defendant voluntarily acted in concert with another person either personally or by aiding and abetting the other person in the commission of the crime.”   The jury was also instructed with the following directions:  “In each of the crimes and allegations charged in counts I and II of the information ․ there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator.   Unless such specific intent exists, the crime or allegation to which it relates is not committed.   The specific intent required is included in the definitions of the crimes or allegations charged.”  (CALJIC No. 3.31.)   Finally, the jury received the standard instruction of specific intent which stated, “if the evidence as to any such specific intent is susceptible to two reasonable interpretations, one of which points to the existence of the specific intent and the other to the absence of the specific intent, you must adopt the interpretation which points to the absence of the specific intent.  [¶] If, on the other hand, one interpretation of the evidence as to such specific intent appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.”   No suggestions for modifications were proffered by the defense, and no question regarding the allegation's wording was submitted by the jury.6

 On its face, the instruction is neither misleading nor incorrect;  it recites section 422.75 almost verbatim.   And there is no sua sponte duty to instruct “on the meaning of terms in common usage, which are presumed to be within the understanding of persons of ordinary intelligence.   [Citation.]”  (People v. Raley (1992) 2 Cal.4th 870, 901, 8 Cal.Rptr.2d 678, 830 P.2d 712.)   Most pertinently, “[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.”  (People v. Lang (1989) 49 Cal.3d 991, 1024, 264 Cal.Rptr. 386, 782 P.2d 627.)

Baker's heightened concern that the jury was misled by the prosecutor's final argument is unwarranted.   The prosecutor argued that the victim had to be selected at least in part for racial or ethnic reasons.7  The defense attorney argued the statute was so new that he could not say;  he ended his discussion with “Perhaps you can decide that from the instructions and interpret it better than I.”   Whatever his opinion or concern, he never requested clarification or amplification.   It was not error for the court to instruct on the law by quoting the law.

IV

Jury Instruction Regarding Motive

 Baker complains the jury was instructed that “[m]otive is not an element of the crime charged and need not be shown.   However, you may consider motive or lack of motive as a circumstance in this case․”  (CALJIC No. 2.51)  On its face, the instruction is correct.   Motive is not an element of any crime.   It is a synonym for an element of the special allegation, and an allegation is not a crime.  (See People v. Hernandez (1988) 46 Cal.3d 194, 207–208, 249 Cal.Rptr. 850, 757 P.2d 1013.)   However, Baker is estopped from complaining;  Baker requested this instruction.   Assuming arguendo that error occurred, it was invited.  (People v. Whitt (1990) 51 Cal.3d 620, 640, 274 Cal.Rptr. 252, 798 P.2d 849.)8

V

Admission of Pryne's Tattoo

 At trial, the court granted the prosecutor's motion to show codefendant Pryne's tattoos to the jury.   One elbow had the word, “white,” tattooed on it while the other had the word, “pride.”   It was then stipulated that the tattoos were obtained after the night of the attack.   Baker contends this evidence violated his Sixth Amendment right of confrontation even though the jury was told the evidence could only be used in its deliberations against Pryne.9  Relying on People v. Aranda (1965) 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265, he argues the evidence was “an extrajudicial statement of a codefendant which implicates [himself], [and therefore] the trial court must either exclude the statement in its entirety or delete those portions of the statement which implicate the defendant.” 10

There is no question but that the tattoos did not implicate Baker.   He contends, however, that the inflammatory nature of the tattoos—proclaiming racist beliefs—would result in the jury disregarding the limiting instruction and considering the evidence against himself as well as Pryne.   But the rule is contrary.  “ ‘[T]he Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence.’  (Richardson [v. Marsh (1987) 481 U.S. 200,] 211, [107 S.Ct. 1702, 1709, 95 L.Ed.2d 176], fn. omitted.)”  (People v. Vasquez (1991) 229 Cal.App.3d 1310, 1314, 280 Cal.Rptr. 599.)   Thus, all the jury received was that the victim and witnesses identified both Baker and Pryne as the two assailants, and that sometime thereafter, Pryne subjected himself to the tattoo needle.   It is hard to imagine a more fitting situation in which the corollary of Richardson and Vasquez was applicable.   And the court quickly, thoroughly and appropriately instructed the jury to consider the tattoo exclusively against Pryne.

The judgment is affirmed.

FOOTNOTES

1.   Specifically, the court imposed the midterm of three years for the robbery count, enhanced with the low term of two years for the “hate-crime-in-concert” special allegation under Penal Code section 422.75, subdivision (b), and five years for the prior serious felony enhancement under Penal Code section 667, subdivision (a).   The assault convictions—as lesser included offenses of the attempted murder charge—were stayed pursuant to Penal Code section 654.All further references are to the Penal Code unless otherwise stated.Section 422.75, subdivision (b) states, in pertinent part, “․ 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, disability, or sexual orientation 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 state prison․”Section 667, subdivision (a) states, in pertinent part, “․ any person convicted of a serious felony who previously has been convicted of a serious felony in this state ․ shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.   The terms of the present offense and each enhancement shall run consecutively.”Section 654 states, in pertinent part, “[a]n act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one;  ․”

2.   Because speech alone is not the focus of the enhancement—the conduct of selecting the victim is the focus—the holding of the five-to-four decision in R.A.V. v. St. Paul (1992) 505 U.S. 377, –––– – ––––, 112 S.Ct. 2538, 2543–2547, 120 L.Ed.2d 305, is inapplicable.   As was summarized in Mitchell, R.A.V. “involved a First Amendment challenge to a municipal ordinance prohibiting the use of ‘fighting words' that insult, or provoke violence, ‘on the basis of race, color, creed, religion or gender.’  [Citations.]  Because the ordinance only proscribed a class of ‘fighting words' deemed particularly offensive by the city—i.e., those that contain ․ messages of ‘bias-motivated’ hatred [citation]—we held that it violated the rule against content-based discrimination․  But ․ the statute in this case is aimed at conduct unprotected by the First Amendment.”  (Mitchell, supra, 508 U.S. at pp. –––– – ––––, 113 S.Ct. at pp. 2200–2201, some internal quotation marks omitted.)

3.   The Attorney General, amici curiae and footnote 9 of In re Joshua H., supra, 13 Cal.App.4th 1734, 1748, 17 Cal.Rptr.2d 291 have provided us with a wide range of background material detailing the concerns which culminated in the passage of the initial hate-crime legislation known as the Bane Civil Rights Act.  (See Assem.Com.on Pub.Safety, Analysis of Assem.Bill No. 63 (1987–1988 Reg.Sess.) at p. 2;  Sen.Rules Com., Analysis of Assem.Bill No. 63 (1987–1988 Reg.Sess.), p. 2;  Sen.Com. on Judiciary, Analysis of Bill No. 63 (1987–1988 Reg.Sess.), p. 2.)   However, subsequent statistics indicated a dramatic rise in hate crimes after the passage of the act:  in 1990 alone, a 34 percent increase in attacks on Jews was noted and a concomitant rise of 50 percent in such crimes against homosexuals.   Determining that further action was needed, the Legislature amended the Bane Civil Rights Act, adding the enhancement provisions of section 422.75.  (Sen.Com. on Judiciary, Analysis of Sen.Bill No. 98 (1991–1992 Reg.Sess.), at pp. 4–5;  Assem.Subcom. on the Admin. of Justice, Analysis of Sen.Bill No. 98 (1991–1992 Reg.Sess.) at p. 2;  Sen.Rules Com., Analysis of Sen.Bill No. 98 (1991–1992 Reg.Sess.) at pp. 1–6.)   Various articles and studies concluded “hate crime assaults are ‘far more lethal than other kinds of attacks, resulting in hospitalization of their victims four times more often than is true for other assaults.’   (Goleman, As Bias Crimes Seem To Rise, Scientists Study Roots of Racism, New York Times, May 29, 1990 [“Roots of Racism”] § C at col. 1.)   Furthermore, the effects of a single hate-crime attack are more far-reaching:“Such crimes—because they are directed not only toward the victim but, in essence, toward an entire group of which the victim is perceived to be a member—invite imitation, retaliation, and insecurity on the part of persons in the group to which the victim was perceived by the assailant to belong.   Such crimes are particularly harmful, because the victim is attacked on the basis of characteristics, perceived to be possessed by the victim, that have historically been targeted for wrongs․”  (State v. Plowman (1992) 314 Or. 157, 838 P.2d 558.)

4.   Penal Code section 422.7 states, in pertinent part,“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, ․ 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 ․ and because of the other person's race, color, religion, ancestry, national origin, disability, gender, or sexual orientation, ․”

5.   This depiction appears consistent with the fluctuating definition of proximate cause in criminal cases.   Some statements of the causation element appear to require a stricter causal relationship, as in “but for the blows the man would not have died, at least not at the time he did.   This makes the defendant criminally responsible.”  (People v. Moan (1884) 65 Cal. 532, 537, 4 P. 545.)   The more current view, however, was set out in People v. Caldwell (1984) 36 Cal.3d 210, 220, 203 Cal.Rptr. 433, 681 P.2d 274:  “To be considered a proximate cause of [the] death, the acts of the defendants must have been a ‘substantial factor’ contributing to the result.”   But People v. Roberts (1992) 2 Cal.4th 271, 6 Cal.Rptr.2d 276, 826 P.2d 274 reserved the substantial factor issue for direct causation solely and centered the general definition of proximate cause on an analysis more akin to tort law.   It held that “[t]he criminal law thus is clear that for liability to be found, the cause of the harm not only must be direct, but also not so remote as to fail to constitute the natural and probable consequence of the defendant's act.”   (Id., at p. 319, 6 Cal.Rptr.2d 276, 826 P.2d 274.)

6.   The jury sent two notes to the judge during the course of deliberations.   The first requested certain testimony be read back to them, and the second asked if the findings must be unanimous.

7.   Contrary to Baker's assertion, the court never instructed that the bigoted motive had to be at least one of the reasons the crime was committed.   At the commencement of the trial, the court read the charges to the jury, including “that [the defendants] violated a provision of 422.75(A) and B [sic] of the Penal Code.   And that relates to the idea that the motive or one of the reasons that the offenses charged in Counts I and II were committed had to do with the racial or ethnic motive;  that is, the victim[']s ethnic background or national origin.  [¶] So those are the charges.”   Under any interpretation of this record, the court did not instruct the jury that the motive had only to be a part of the reason for the victim's selection.

8.   Subsequent to oral argument Baker's counsel moved to vacate the submission in order to file a letter brief to challenge CALJIC No. 2.90, the standard reasonable doubt instruction, in view of the United States Supreme Court's grant of certiorari in People v. Sandoval (1992) 4 Cal.4th 155, 14 Cal.Rptr.2d 342, 841 P.2d 862 (cert. granted Sept. 28, 1993, 509 U.S. 954, 114 S.Ct. 40, 125 L.Ed.2d 789) and Nebraska v. Victor (1993) 242 Neb. 306, 494 N.W.2d 565.   We granted that request;  but our hands are tied on the issue (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937;  People v. Smith (1992) 9 Cal.App.4th 196, 202, 11 Cal.Rptr.2d 645) because the California Supreme Court has consistently upheld the formulation derived from Penal Code section 1096.  (People v. Webb (1993) 6 Cal.4th 494, 24 Cal.Rptr.2d 779, 862 P.2d 779).   Thus, we reject Baker's constitutional challenge to CALJIC No. 2.90 in order that he may address it to courts with the power to act upon it.

9.   The actual statement to the jury, following Pryne's display of the back of his elbows to the jury, was:  “․ that tattoo on Mr. Pryne you have just seen.   That evidence is not admitted as to Mr. Baker;  you are not to consider that as against Mr. Baker in any way.   It's just not admitted as to Mr. Baker.   That's the first thing.  [¶] And as to Mr. Pryne, it's admitted for a limited purpose.   And that is whatever value you, the trier of fact—you as the trier of fact—think that it has, if it does tend to prove motive or mental state that Mr. Pryne may have had at the time, that the acts alleged were committed, and not as tending to prove some general propensity to commit some crime;  ․”

10.   We are aware the Aranda rule was not predicated on a Sixth Amendment right;  it actually was a statutory derivative under California Penal Code section 1098 which permits joint trials of codefendants in the discretion of the trial court.  (See People v. Aranda, supra, 63 Cal.2d at p. 530, 47 Cal.Rptr. 353, 407 P.2d 265.)   The subsequent opinion of Bruton v. United States (1968) 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 mandated the same rule based on the Sixth Amendment confrontation clause.

SILLS, Presiding Justice.

MOORE and SONENSHINE, JJ., concur.