PEOPLE v. AISHMAN

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE of the State of California, Petitioners, v. The SUPERIOR COURT of San Diego County, Respondent. Ronald Allan AISHMAN et al., Real Parties in Interest

No. D018536.

Decided: May 19, 1993

Edwin L. Miller, Jr., Dist. Atty., Thomas F. McArdle and Luis M. Aragon, Deputy Dist. Attys., for petitioners. No appearance for respondent. William L. Burnell, Gilbert E. Newton, El Cajon, and Kent H. Thaeler, San Diego, for real parties in interest.

FACTUAL BACKGROUND

The relevant facts, for purposes of this proceeding, are not contested.   Real party Daniel J. Stout learned on September 25, 1992, that his wife allegedly had been raped by Mexican men in the area of a creek bed behind the Alpine Market, on Tavern Road in Alpine.   Stout enlisted the aid of real parties Ronald A. Aishman, Ronald Inman, Charles E. Nocita and Christopher S. Hastings in seeking to retaliate against the Mexican “rapists.”

On the evening of October 1, 1992, real party Hastings drove the other real parties to the area of the alleged rape.   Stout, Aishman, Inman and Nocita went down to the creek bed and attacked three Mexican men with various club-type weapons such as baseball bats, metal pipes and a table leg.   Leobardo Zarco, Oscar Alfonso Mendoza and Jose Luis Lopez suffered fracture and laceration injuries.

As evidence of bias in victim selection, the People relied upon various statements purportedly made by real parties herein (Aishman, for example, is alleged to have talked of “hitting home runs with Mexicans”), and also upon the fact that Inman had both a swastika and “Thank God I'm White” tattooed on his arms.

PROCEDURAL BACKGROUND

On December 14, 1992, an information was filed in the respondent superior court charging all five real parties with three counts (one count for each victim) of assault with a deadly weapon and by means of force likely to produce great bodily injury (Pen.Code,1 § 245, subd. (a)(1)), and three counts of battery with serious bodily injury (§ 243, subd. (d)).  As to each count and real party it was also alleged the charged felonies were committed (1) while acting with another and (2) because of the victim's race, color, nationality, or country of origin or ancestry, in violation of section 422.75, subdivision (b).2

Real parties thereafter filed motions to dismiss the section 422.75 allegations on constitutional grounds.   Real party Aishman argued the statute was facially invalid as a punishment for his speech (the statements he allegedly made about “hitting home runs with Mexicans”).   Aishman also argued the statute was unconstitutional insofar as the words “because of” were impermissibly vague, and last urged that the statute was also overbroad.

Real party Nocita also asserted section 422.75 punished him only for “possessing thoughts which society holds in low regard,” and was unconstitutional because it violated rights secured by the First Amendment.   Nocita also argued that the statute was unconstitutionally vague because it applied to motive, rather than to a specific intent.

The response of the People was that section 422.75 was directed at discriminatory conduct, not speech, and thus did not violate the First Amendment.   Pointing to death penalty cases in which evidence of motive, including racial bias and hatred, was a permissible factor in determining the penalty, the People asserted the statute here was likewise directed to a constitutionally permissible end and was not overbroad.   The People also asserted section 422.75 was not vague, as the requirement the victim be selected “because of” a biased reason in fact defined a specific intent.3

On March 8, 1993, the parties argued the questions.   The real parties again argued the statute punished a defendant's thoughts in violation of the First Amendment, and also violated the Fourteenth Amendment in that it was vague.   The People again urged that the statute was directed at conduct, not thought, and was not vague insofar as it should be read to define a specific intent.   At the conclusion of the hearing, Judge May found section 422.75, subdivision (b) violated the First Amendment in that it had a “chilling effect” on freedom of expression, and also violated the Fourteenth Amendment because it was overbroad, and thus invited “standardless prosecution.”   Finding the section unconstitutional, Judge May granted real parties' motions to dismiss section 422.75, subdivision (b) allegations.

On March 12, 1993, the People petitioned this court for a writ commanding the respondent Superior Court to set aside the order entered.   On March 15, 1993, we issued an order to show cause why the requested relief should not be granted, and stayed the trial.   The cause was argued before us on May 11, 1993.

QUESTION PRESENTED

Do the First or Fourteenth Amendments to the Constitution of the United States prohibit penalty enhancement for felonies if a fact-finder determines the offender or offenders intentionally selected their victim “because of the victim's race, color, religion, nationality, country of origin, ancestry, disability, or sexual orientation”?

STANDARD OF REVIEW

 The constitutionality of a penal statute is a question of law.   We review such questions de novo, under a non-deferential standard.  (People v. Price (1991) 1 Cal.4th 324, 409, 3 Cal.Rptr.2d 106, 821 P.2d 610.)

DISCUSSION

A. History of Section 422.75 and Related Statutes

Section 422.75 was added to the Penal Code by Statutes 1991, chapter 607, section 7.4  The enactment dealt with civil rights, providing, among other things, for both new civil and new criminal penalties for specified violations of civil rights.   It has not previously been construed by a California appellate court.5

B. Other State Supreme Court Authority

Three state supreme courts have recently construed so-called “hate crimes” statutes.   In State v. Mitchell (1992) 169 Wis.2d 153, 485 N.W.2d 807, the Wisconsin Supreme Court held the statute unconstitutional.6  In State v. Wyant (1992) 64 Ohio St.3d 566, 597 N.E.2d 450, the Ohio Supreme court also ruled the statute unconstitutional.   Finally, in State v. Plowman (1992) 314 Ore. 157, 838 P.2d 558, the Oregon Supreme Court concluded the statute at issue was in fact constitutional.

1. State v. Mitchell

After seeing the movie “Mississippi Burning,” Todd Mitchell, part of a group of young black men, asked them, “Do you all feel hyped up to move on some white people.”  (State v. Mitchell, supra, 169 Wis.2d at p. 158, 485 N.W.2d at p. 809.)   Mitchell noticed Gregory Reddick, a white 14–year–old, walking nearby.   He told his friends, “You all want to fuck somebody up?   There goes a white boy;  go get him.”  (Ibid.)  The beating Reddick suffered from the group left him with extensive injuries and brain damage.

At the time Wisconsin law provided that if a felony were committed, and the actor “[i]ntentionally selects the person against whom the crime ․ is committed ․ because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person ․ the maximum period of imprisonment prescribed by law for the crime may be increased by not more than five years.” 7  Mitchell received a sentence of four instead of two years by reason of this enhancement.

The Wisconsin Supreme Court, relying on Professor Gellman's law review article,8 determined Mitchell had been punished for his motive, and such punishment, no matter how the statute was parsed or worded, necessarily implicated and encroached upon his First Amendment rights.   The court found the statute facially invalid because it punished constitutionally protected thought.

The court also found the statute was overbroad.   Once again relying upon Professor Gellman's analysis,9 the court found that a person's awareness his bigoted but protected expressions and associations might later be used to enhance a criminal penalty could lead to habitual self-censorship, and that this constituted a chilling effect on the protected exercise of free speech.

2. State v. Wyant

David Wyant, a white, rented a campsite with his relatives.   The adjoining campsite was occupied by Jerry White, a black, and his girlfriend.   In the evening, White complained about Wyant's loud radio to park officials, who then asked Wyant to turn it off.   Wyant did so, but later turned his radio back on, and White heard Wyant say, “I ought to shoot that black mother fucker” and make other racial epithets and threats.  (State v. Wyant, supra, 64 Ohio St.3d at p. 567, 597 N.E.2d at p. 450.)

Wyant was convicted on ethnic intimidation under a statute 10 which provided that an offense committed by reason of the race, color, religion, or national origin of the victim was to be punished as an offense of the next higher degree.   Relying on a view the enhanced penalty related only to an actor's motive, and that motive was not an element of the offense,11 the Ohio Supreme Court held the statute involved punishment of thought rather than acts, and thus violated the First Amendment, which guarantees the freedom of beliefs as a necessary predicate to freedom of speech.

3. State v. Plowman

Plowman and three friends went to a convenience store in Portland, Oregon to buy beer.   One of Plowman's friends approached an Hispanic, Serafin, and asked if he had any cocaine.   Serafin, who spoke little English, said he did not have anything, and was then attacked by two of Plowman's friends, while Plowman and the other attacked a companion of Serafin, and then Serafin also.   Plowman yelled, “Knock it off with us white boys”.  (State v. Plowman, supra, 314 Ore. at p. 160, 838 P.2d at p. 560.)   When the store clerk said she had called the police, Plowman screamed, “They're just fucking wetbacks” (ibid.) and other epithets, and left with his friends.

Plowman was convicted of intimidation in the first degree in violation of ORS 166.165(1)(a)(A), which makes it a crime for two or more people to intentionally cause physical injury to a victim because of their perception of a victim's race, color, religion, origin, or sexual orientation.   On appeal Plowman urged the statute was void for vagueness under the Fourteenth Amendment, and also impermissibly chilled speech under the First Amendment.

The Oregon Supreme Court held that as the statute required the state to prove a causal connection between injury inflicted and a defendant's perception of his victim's group, the statute was not unconstitutionally vague and did not invite standardless prosecution.   The court also held the statute did not criminalize opinion, but the act of inflicting injury because of a perception that the defendant belonged to a particular group.   The Oregon court thus upheld the constitutionality of ORS 166.165(1)(a)(A).

4. Summary of Other–State Authority

 State v. Plowman resolves two of the same questions before us, and in favor of the constitutionality of the statute.  State v. Wyant dealt with a statute and set of facts that are of lesser relevance for our purposes.   The Wisconsin statute reviewed in State v. Mitchell is analogous to the one before us, and the reasoning of that court would thus normally be of much interest.   The validity of the holding therein, however, is itself presently under review as Wisconsin v. Mitchell.12

C. United States Supreme Court

 A case decided last term by the United States Supreme Court, R.A.V. v. City of St. Paul (1992) 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (hereafter, R.A.V.), is of use in our analysis insofar as it dealt with another anti-bias criminal statute, a city ordinance proscribing messages of racial, gender, or religious intolerance.  (Id. at p. ––––, 112 S.Ct. at p. 2541, 120 L.Ed.2d at p. 315.)   The Supreme Court, although for sharply diverging reasons, struck down the statute, finding that it was on its face directed at certain types of expression.   Among many types of expression, the statute made criminal only those types which were disfavored by the city council.   Five members of the court held this to be an impermissible content-based restriction on speech, even though the speech in question was entitled to only limited protection.

In an earlier First Amendment case, the author of R.A.V. had pointed out that “those who choose to employ conduct as a means of expression must make sure that the conduct they select is not generally forbidden.”  (Barnes v. Glen Theatre, Inc. (1991) 501 U.S. 560, ––––, 111 S.Ct. 2456, 2468, 115 L.Ed.2d 504, 521, Scalia, J., concurring in the judgment.)   In our case, of course, even were we to view the selection of a victim as some sort of expression, the conduct selected is by definition felonious, which under the reasoning set out above would thus not implicate First Amendment concerns.

Of interest for our purposes is the subsequent observation of Justice Scalia in R.A.V., after citation to Barnes and other related cases:  “Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory ideal or philosophy.”  (R.A.V., supra, 505 U.S. at p. ––––, 112 S.Ct. at p. 2546–2547, 120 L.Ed.2d at p. 322.)   Under any view of these analyses, section 422.75, which is directed at enhancing punishment for felony offenses committed for particular reasons, is not invalid merely because, prior to or in the process of commission of a felony, the felon voiced sentiments which might in other settings be protected.

In both State v. Mitchell, supra, 169 Wis.2d at pp. 169–173, 485 N.W.2d at pp. 814–815 and State v. Wyant, supra, 64 Ohio St.3d at pp. 578–579, 597 N.E.2d at pp. 458–459, the courts relied upon the R.A.V. decision in overturning the statute before them.   The court in State v. Plowman, supra, 314 Ore. at p. 168, 838 P.2d at p. 565, however, determined that R.A.V. did not apply to the prohibitions of a statute such as the one before us, noting that the R.A.V. court had expressly noted that question was not before it.

D. Constitutionality of Section 422.75

1. Introduction

As we have earlier noted, on March 8, 1993, the Court of Appeal for the Sixth District decided the case of In re Joshua H., supra, 13 Cal.App.4th 1734, 17 Cal.Rptr.2d 291.   At issue in Joshua H. was the constitutionality of section 422.7, which makes punishable as felonies those misdemeanors “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․”

In Joshua H., as here, this enactment was challenged as invalid under the First Amendment because it punished speech, and as both vague and overbroad.   There is in our view no principled distinction which can be made between the constitutionality of section 422.7 and section 422.75.

Section 422.7 in pertinent part simply provides that where a specified variety of misdemeanor is committed “because of” one of several specified reasons, that misdemeanor is punishable as a felony offense.   Section 422.75, as noted earlier, provides for an enhancement where a felony is committed “because of” one of the same type of specified reasons.   If an legislative enactment may properly elevate a misdemeanor to a felony for specified reasons, it must of logical necessity be permissible to apply the same reasons to enhance a felony sentence.

The central question is thus whether we follow the Joshua H. ruling in its analyses of (1) whether R.A.V. controls this case, (2) whether these statutes violate due process, and (3) whether these statutes offend the First Amendment.  Joshua H. answered all these questions in the negative.   For reasons which shall appear, we agree with and follow the Joshua H. decision.

2. R.A.V. v. City of St. Paul

As we have already indicated, we are of the view that the statute considered in R.A.V., unlike the statute before us, was clearly directed at expression, rather than conduct, and thus that decision cannot be dispositive here.   Phrased another way, section 422.75 “targets discriminatory conduct, not speech, and therefore falls outside the rule and within the exceptions set forth by R.A.V.”  (In re Joshua H., supra, 13 Cal.App.4th at p. 1750, 17 Cal.Rptr.2d 291.)   We so hold.

3. Due Process/Vagueness

Real parties assert section 422.75 is (1) so vague as not to provide constitutionally sufficient notice of the prohibited conduct, and (2) it also fails to provide sufficiently clear standards for non-arbitrary and non-discriminatory enforcement.   The People disagree with these propositions, as we do also.13

Perhaps the most cogent formulation of the sufficient notice point was set forth in Connally v. General Construction Co. (1925) 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322:

“That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law.   And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process.”

 A second part of the certainty requirement is that a statute provide law enforcement officials with sufficiently certain guidelines for its application.  (Walker v. Superior Court (1988) 47 Cal.3d 112, 141, 253 Cal.Rptr. 1, 763 P.2d 852;  United States v. Brice (9th Cir.1991) 926 F.2d 925, 930.)   A statute meets these requirements “if its language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.”  (Turf Center, Inc. v. United States (9th Cir.1963) 325 F.2d 793, 795;  see also Grayned v. Rockford (1972) 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222.)   Finally, “legislative enactments ‘must be upheld unless their 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.’  (Lockheed Aircraft Corp. v. Superior Court (1946) 28 Cal.2d 481, 484, 171 P.2d 21, citations omitted.)”  (Walker v. Superior Court, supra, 47 Cal.3d at p. 143, 253 Cal.Rptr. 1, 763 P.2d 852.)

The question is whether a “reasonable and practical construction” can be given to section 422.75's punishment for felonies committed “because of” specified attributes of the victim.   Here the People assert real parties (acting in concert) selected the three victims “because of” their status as Mexicans.   Stout responds that he only initiated the concerted activity “because of” the (alleged) rape of his wife.   If he had no other motive he would not, of course, come within the statute.   Does the fact Stout may, apart from the alleged rape, harbor ill-will toward Mexicans bring him within the statute's prohibition?   In other words, it is necessary for us to determine the burden of proof put on the prosecution by the words “because of.”

Recognizing that humans seldom act from isolated “pure” motives, but rather from a mixture of motives, the People urge on policy grounds that “because of” means the improper motive need only be a “substantial factor” in the selection of the victim.   Real parties claim that a penal statute requires more precision in definition than do statutes imposing civil liability, urging this interpretation of “because of” can not be discerned from the language of the assertedly vague statute, and by inference would require a higher level of causation, that “but for” the victims' ethnicity they would not have been selected as victims.

It is well settled that causation is as much an element of a criminal offense as it is an element of a civil tort.  (See, e.g., People v. Moan (1884) 65 Cal. 532, 537, 4 P. 545, People v. Lewis (1899) 124 Cal. 551, 556, 57 P. 470, and People v. McGee (1947) 31 Cal.2d 229, 240–243, 187 P.2d 706.)   A review of authority is not conclusive on our precise question, however.  “Causation problems seldom arise in any field except homicide, which furnishes nearly all the case law on the subject.”  (1 Witkin, Cal.Crimes (1963) § 78, p. 79.)

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, supra, 65 Cal. at p. 537, 4 P. 545.)   The current view is, however, 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.  (See People v. Scola (1976) 56 Cal.App.3d 723, 726, 128 Cal.Rptr. 477.)”  (Italics in original.)

We recognize that the “causation” discussed in the homicide cases is often a question of physical fact, while the “because of” test for victim selection refers instead to a mental state.   But in People v. Caldwell the issue was whether two survivors of three fleeing criminals could be held to have “caused” the death, by police gunfire, of the third.  (People v. Caldwell, supra, 36 Cal.3d at p. 219, 203 Cal.Rptr. 433, 681 P.2d 274.)   The court found there could have been “more than one proximate cause of the killing” (ibid.) and thus the defendant's “acts may thus also have been a ‘but for’ cause (in fact) of the gun battle and ․ death.”  (Id. at p. 220, 203 Cal.Rptr. 433, 681 P.2d 274.)

Thus the question before the court in Caldwell involved the type of assignment of moral responsibility involved in this case.   A standard of causation which is sufficient to impose liability for a homicide is, as a matter of principle, adequate to impose liability for choice of a victim “because of” ethnicity, race, or other prohibited factor specified by section 422.75.

 Thus we reject the proposition that section 422.75 can only be applied to cases where there is a clearly overriding motive sufficient to constitute a “but for” cause of victim selection.   Instead, we hold the prosecution's burden is met if the state produces evidence from which it may be reasonably inferred that the victim's status was a substantial factor in the actor's selection of him or her.  (People v. Caldwell, supra, 36 Cal.3d at p. 220, 203 Cal.Rptr. 433, 681 P.2d 274;  People v. Scola, supra, 56 Cal.App.3d at p. 726, 128 Cal.Rptr. 477;  see also People v. Armitage (1987) 194 Cal.App.3d 405, 419–421, 239 Cal.Rptr. 515, and People v. Stamp (1969) 2 Cal.App.3d 203, 210, 82 Cal.Rptr. 598.)

 Thus traditional and established principles dictate that section 422.75's enhancement may be applied where the actor selects his victim “because of” a specified proscribed reason, and the specified improper motive was at least a substantial, rather than a trivial, factor in the selection of the victim.14  These facts, of course, must be proved beyond a reasonable doubt.   As so construed, we hold “because of” to be sufficiently precise to provide “constitutionally sufficient notice” to real parties, as well as sufficiently certain guidelines for its application.   (Walker v. Superior Court, supra, 47 Cal.3d at p. 144, 253 Cal.Rptr. 1, 763 P.2d 852.)

4. First Amendment Considerations

i. Overbreadth

 Does the statute sweep within its prohibition conduct not properly subject to the statutory purpose?   No.  To begin with, as an enhancement, section 422.75 may only properly be applied where the underlying conduct is itself a felony, thus severely limiting possible overbroad applications.   Second, as have other courts which have considered this issue, we believe that the requirement the state prove a causal connection between the felony and the victim's status provides further safeguards against application of section 422.75 to inappropriate cases.

Any fair reading must not ignore the clear purpose of the statute, which is the prevention of “hate crime,” the societal evil addressed by the Legislature in division 11.6 of the Penal Code.   There must be at least some danger of punishment being imposed for an individual's protected thought or speech before the statute may be found to be overbroad.   Because, as we have already noted, the statute is directed at enhancing punishment for conduct, rather than for speech or opinion, it is not overbroad.

ii. Chilling Effect

 The heart of real parties' arguments, accepted in the trial court's ruling, was that section 422.75 exerted an impermissible “chilling effect” on both speech and thought, thus vitiating the core values of the First Amendment.   We do not agree the statute has such an effect.

Perhaps the best example concerns the evidence offered of the fact Inman has a “Thank God I'm White” tattoo and also a swastika tattoo, supporting the proposition he selected his victims because he was a racist.   At the time Inman acquired the tattoos (however unpopular or repellent these views are and were) they clearly constituted that quintessence of protected speech, statements expressing repugnant opinions.

From this, the argument accepted by the Wisconsin and Ohio courts would deduce Inman was being punished only on the basis of his beliefs.   We do not agree.   The clear but unspoken assumption underlying this reasoning is that courts will utilize clearly protected expressions of belief in the attempt to prove a person acted with a bias motive.

It is clear, however, that speech and writings are and have been routinely used to demonstrate, in criminal cases, the mental state of an offender.   The limitations on use of such material are those established by well-developed rules governing relevance (Cal.Evid.Code, § 300) and the balance between probative value and prejudice (Cal.Evid.Code, § 352).   Only evidence relevant to Inman's criminal act, and not his bad character in general, is thus admissible.15

In these circumstances the likelihood of a generalized self-censorship by reason of the section 422.75 enhancement is none.   Expressions of bias, bigotry, and racism will not be censored, because, except when relevant to a criminal act, they may not be offered in evidence against the penal interest of the person holding such views.

iii. Punishment of Motive as Punishment of Thought

 Real parties argue that the statute criminalizes only a pure thought process, the selection of a victim, or the “motive” for the crime.   Real parties assert this amounts to punishment for thoughts, not deeds, and thus section 422.75 must both found unconstitutional.   We disagree.

The essential argument presupposes that motive is not and can not be an element of the crime, and thus it may not constitutionally be punished.   This supposition is, however, incorrect.   In Barclay v. Florida (1983) 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134, the defendant argued that his sentence should be set aside because the trial judge, in making his sentencing choice, discussed the defendant's racial motive for the murder.

The plurality opinion rejected this argument, holding (although not in a First Amendment context) that “[t]he United States Constitution does not prohibit a trial judge from taking into account the elements of racial hatred in this murder.”  (Barclay v. Florida, supra, 463 U.S. at p. 949, 103 S.Ct. at p. 3424.)

In Dawson v. Delaware, supra, 505 U.S. at p. ––––, 112 S.Ct. at p. 1097, 117 L.Ed.2d at p. 316, however, the issue was clear:  “[Dawson] contends that the Constitution forbids the consideration in sentencing of any evidence concerning beliefs or activities that are protected under the First Amendment.”   To this unambiguous challenge, the Supreme Court had an unambiguous response:  “[T]he Constitution does not erect a per se barrier to the admission of evidence of one's beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment.”  (Id. at p. ––––, 112 S.Ct. at p. 1097, 117 L.Ed.2d at p. 317.)16  Dawson is, we believe, dispositive of this issue.

5. Summary

In view of the United States Supreme Court, California, and Oregon decisions cited above, we find the reasoning of the Wisconsin and Ohio courts unpersuasive, and decline to follow them.   Finding the statute before us neither (1) void under the reasoning of the United States Supreme Court in R.A.V., supra, nor (2) unconstitutionally vague, nor (3) offensive to the First Amendment, we thus uphold the constitutionality of section 422.75.

DISPOSITION

Let a peremptory writ of mandate issue directing the court to vacate its order of January 13, 1993, dismissing the section 422.75 allegations as unconstitutional, and to enter a new order consistent with this opinion.   The stay issued on May 15, 1993, is vacated.   This opinion is final immediately as to this court.  (Cal.Rules of Court, rule 24(d).)

While concurring generally with the majority's analysis of the constitutional issues in this matter, I must dissent from the holding as to the quantum of proof necessary to impose criminal sanctions for victim selection “because of” a prohibited reason.   In my view, the “substantial factor” test arrived at by the majority is not sufficiently precise to provide comprehensible standards to ensure application of this sanction will be evenhanded and appropriate.   The imprecision of the “substantial factor” formulation permits discretion “of such a standardless sweep [that it] allows policemen, prosecutors, and juries to pursue their personal predilections.”   (Smith v. Goguen (1974) 415 U.S. 566, 575, 94 S.Ct. 1242, 1248, 39 L.Ed.2d 605, cited in Walker v. Superior Court (1988) 47 Cal.3d 112, 144, 253 Cal.Rptr. 1, 763 P.2d 852.)

While agreeing causation is as much an element of a criminal offense as it is an element of a civil tort, the majority fails to recognize the unique nature of the “cause” here in question.   Although I believe that sentence enhancement by reason of victim selection is constitutional, this novel area of criminal sanctions is not properly comparable to the considerations involved in, for example, the felony-murder situation in People v. Caldwell (1984) 36 Cal.3d 210, 220, 203 Cal.Rptr. 433, 681 P.2d 274,1 the case relied upon for support of the result here.

In my view, the purpose of Penal Code section 422.75 can only be served when its application is limited to those cases in which, except for the race, ethnicity, or other protected status of the victim, that victim would not have been selected.   As so construed, this enhancement would only be charged where the prohibited motivation produced the act to be punished by separate enhancement, the selection of a victim because of his status.   The less stringent “substantial factor” test settled on by the majority is, I believe, susceptible to what the trial judge correctly termed “standardless prosecution.”

Because the “substantial factor” test does not provide adequate guidelines for enforcement, I would read the statute to require a prosecution showing that the prohibited act of victim selection was the product of the racist or other motivation of the actor, in that the motivation in question resulted in what otherwise would not have occurred, the selection of this victim “because of” that reason.   As so construed, I would hold “because of” to be sufficiently precise to provide sufficiently certain guidelines for its application (Walker v. Superior Court, supra, 47 Cal.3d at p. 144, 253 Cal.Rptr. 1, 763 P.2d 852), but I do not agree that the term “substantial factor” is sufficiently precise.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   Section 422.75 (entitled “Protected classes;  felony or attempted felony against person because of class membership;  additional term;  aiding and abetting ․”) is contained in Part I of the Penal Code, in title 11.6, entitled “Civil Rights,” which includes sections 422.6 through 422.95.Section 422.75, subdivision (b) provides in relevant part:  “[A]ny 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 at the court's discretion.”Section 422.75, subdivision (a) is addressed to the person not acting “in concert with another,” but otherwise is worded in the same language, and provides for “an additional term of one, two, or three years in state prison” for a person who commits “or attempts to commit a felony” for the specified reasons.   The constitutional challenge herein, although addressed to section 422.75, subdivision (b), necessarily encompasses the identical provisions in section 422.75, subdivision (a).

3.   See, e.g., People v. Lashley (1991) 1 Cal.App.4th 938, 946–947, 2 Cal.Rptr.2d 629, where the court construed similar language to require proof of a specific intent.

4.   Section 422.75 was amended by Statutes 1992, chapter 265, section 1, which added “disability” to the list of prohibited reasons for committing an offense.At last count, some 49 states have some version of “ethnic intimidation” statutes.   Many of these statutes are patterned after model legislation first drafted and introduced by the Anti–Defamation League of B'nai B'rith (ADL) in 1981.  (Gellman, Sticks and Stones Can Put You in Jail, But Can Words Increase Your Sentence?   Constitutional and Policy Dilemmas of Ethnic Intimidation Laws (1991) 39 UCLA L.Rev. 333, 339–340 (hereafter Sticks and Stones ).)

5.   People v. Lashley, supra, 1 Cal.App.4th 938, 2 Cal.Rptr.2d 629 upheld convictions under related provisions of title 11.6 by reading the statutes (including § 422.7) to require proof of a specific intent (id. at pp. 946–947, 2 Cal.Rptr.2d 629), but did not address the constitutional issues raised in this proceeding.In re Joshua H. (1993) 13 Cal.App.4th 1734, 1741–1753, 17 Cal.Rptr.2d 291, did uphold the constitutionality of section 422.7, which under specified circumstances makes punishable as felonies rather than misdemeanors crimes committed because of reasons generally paralleling those which are proscribed by section 422.75.

6.   The State's petition for certiorari to the United States Supreme Court was granted, sub nomine Wisconsin v. Mitchell, 506 U.S. 1033, 113 S.Ct. 810, 121 L.Ed.2d 683.   The cause was argued on Wednesday, April 21, 1993.  (See Greenhouse, Justices Receptive to Arguments Backing Hate Crimes, L.A. Daily J., (April 22, 1993) p. 9, cols. 1–6.)

7.   (§ 939.645, Wis.Stats.)

8.   (Gellman, Sticks and Stones, op. cit. supra, 39 UCLA L.Rev. at p. 363.)

9.   (Gellman, Sticks and Stones, op. cit. supra, at pp. 360–361.)   For an excellent overview of all sides of the issues addressed by Professor Gellman, see the symposium in 11 Criminal Justice Ethics, No. 2 (Winter/Spring 1992), pages 3–63, including Gellman, “Brother, You Can't Go to Jail for What You're Thinking”:  Motives, Effects and “Hate Crime” Laws at page 24 and Weinstein, First Amendment Challenges to Hate Crime Legislation:  Where's the Speech? at page 6.   See also Note, Hate Is Not Speech:  A Constitutional Defense of Penalty Enhancement for Hate Crimes (1993) 106 Harvard L.Rev. 1314.

10.   (Ohio R.C. 2927.12.)

11.   See, e.g., LaFave and Scott, 1 Substantive Criminal Law (2nd ed. 1986) section 3.6, pages 319–324.

12.   The decision in Wisconsin v. Mitchell, supra, 506 U.S. 1033, 113 S.Ct. 810, 121 L.Ed.2d 683, whose legal questions closely parallel the ones before us, will likely be controlling or at least persuasive on the questions now before us.   We would in these circumstances normally defer resolution of the matter.   In this case, however, real parties are in custody, with their trial stayed pending resolution of the proceedings.   We thus must proceed to resolve the case before us.

13.   As we have earlier observed (fn. 5, infra ), for purposes of our analysis we accept the holding in People v. Lashley, supra, 1 Cal.App.4th at p. 947, 2 Cal.Rptr.2d 629, that a specific intent requirement is defined by these statutes, a position taken below and before us in this case by petitioner.   Indeed, such a requirement is, contrary to the position of real parties herein, an accepted principle of California law.  (See, e.g., CALJIC No. 9.95 (1992) “Felony Interference with Civil Rights”, which informs the jury (based on People v. Lashley, supra ) that the People are required to prove specific intent.   No comparable pattern instruction exists for section 422.75.)

14.   We are mindful of but do not share our colleague's concern that the “substantial factor” test might create opportunities for standardless prosecutions.   Because (1) a defendant's specific intent and (2) his or her motivation in substantial part for a prohibited purpose must both be demonstrated to a jury's satisfaction beyond a reasonable doubt, there is no reason to fear that law enforcement officials might employ the statute in cases to which it would not have been intended to apply.   The statute, found adequate to provide fair warning to defendants, includes as construed a sufficiently certain “standard for police enforcement and for ascertainment of guilt.”  (Burg v. Municipal Court (1983) 35 Cal.3d 257, 269, 198 Cal.Rptr. 145, 673 P.2d 732.)

15.   Perhaps the best example is a case we will further discuss in part 4 iii, infra, Dawson v. Delaware (1992) 505 U.S. ––––, 112 S.Ct. 1093, 117 L.Ed.2d. 309.   There, the court reversed Dawson's conviction because evidence of his association with racists was irrelevant, not because it was unconstitutional.  Dawson demonstrates, as urged by petitioner below and here, that adherence to traditional notions of relevancy will address most of the concerns voiced by real parties over possible evidentiary use of their statements and writings.

16.   We would reach the same result, that consideration of motivation is a proper basis for differential sentencing, under an analysis of California law.   As the court pointed out in In re Joshua H., supra, 13 Cal.App.4th at p. 1751, 17 Cal.Rptr.2d 291, “[I]t is not true that an actor's reason for acting is never relevant in criminal or civil law.   The same conduct may be punished differently depending on the reason the defendant acted, i.e., the defendant's mental state, or mens rea.   For example, a homicide may be charged as first degree murder, second degree murder, voluntary manslaughter, or involuntary manslaughter, or it may be excused altogether, depending on the perpetrator's motive.   Another example is breaking and entering, which is punished more severely if done to commit a felony (§ 459);  yet another example is kidnapping, which is punished more severely where the kidnapping is done to commit a sex crime (§ 208, subd. (d)).”

1.   People v. Caldwell, supra, 36 Cal.3d 210, 203 Cal.Rptr. 433, 681 P.2d 274, in turn relied upon People v. Scola (1976) 56 Cal.App.3d 723, 726, 128 Cal.Rptr. 477, which relied only upon a brief citation to the Restatement Second of Torts, analysis of the applicability of those civil principles to the criminal law.

NARES, Associate Judge.

KREMER, P.J., concurs.