IN RE: M.S.

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Court of Appeal, First District, Division 2, California.

IN RE: M.S., a Minor. The PEOPLE, Plaintiff and Respondent, v. M.S., Defendant and Appellant.

IN RE: A.G., a Minor. The PEOPLE, Plaintiff and Respondent, v. A.G., Defendant and Appellant.

Nos. A055072, A055963.

Decided: August 17, 1993

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Joanne S. Abelson, Deputy Atty. Gen., San Francisco, for plaintiff and respondent. Mat Zwerling, First Dist. Appellate Project, San Francisco, Stewart C. Pollack, Berkeley, Jean Allan, Donna Teshima, Deputy Public Defender, Office of the Public Defender, San Francisco, for defendants and appellants. Linda F. Robertson, Burlingame, for amicus curiae Calif. Public Defenders Assn. John T. Philipsborn, Dennis P. Riordan, San Francisco, for amicus curiae Calif. Attys. for Crim. Justice. Stephen Hankins, Robert Borton, Heller, Ehrman, White & McAuliffe, San Francisco, for amicus curiae Intergroup Clearinghouse. Diane T. Chin, San Francisco, for amicus curiae S.F. Lawyers' Committee for Urban Affairs. Joshua Baker, San Francisco, for amicus curiae Anti–Defamation League of B'nai B'rith. Angelo N. Ancheta, Doreena P. Wong, Kathryn K. Imahara, Stanley Mark, San Francisco, for amicus curiae Nat. Asian Pacific American Legal Consortium. Edward M. Chen, Matthew A. Coles, San Francisco, for amicus curiae ACLU for Northern California. Paul Hoffman, Erwin Chemerinsky, Mary Ellen Gale, Los Angeles, for amicus curiae ACLU for Southern California. Joyce M. Norcini, San Francisco, for amicus curiae Bay Area Lawyers for Individual Freedom. Robert J. Thyken, Jr., San Francisco, for amicus curiae Bay Area Lawyers for Individual Freedom.

Appellants in these consolidated cases contend that Penal Code sections 422.6 and 422.7, key portions of the California “hate crime” statute,1 violate the First Amendment.   We shall conclude that when narrowly construed these sections do not infringe First Amendment guarantees.

FACTS

On August 20, 1990, at approximately 2:30 a.m., Jonathan Ebarb, Christopher Minor, Bill Camilo, Dennis Graff, and Christopher McMillan rode in Ebarb's flat bed truck to Little Orphan Andy's, a restaurant on 17th Street near Castro in San Francisco.   The Castro district is known as a “gay ghetto” and the men in the truck were homosexual.   They had just gotten off work and were going to the restaurant to eat breakfast, as they did every Sunday.

As they drove along 17th Street, Minor, who along with McMillan was sitting in the flat bed, heard male and female voices yelling anti-gay epithets, such as “faggot” and “queer.”   Their tone sounded “hateful.”   Minor saw two women (appellants M.S. and A.G.) and two men (Rosenberg and Miles).   All four were screaming things like “where are you going, faggot, come here faggot, we are going to kill you.   You fucking Faggots․”  Their tone was threatening, and they were walking quickly.

After Ebarb parked the truck, M.S. and A.G., yelling anti-gay epithets, participated with Rosenberg and Miles in physically attacking Ebarb and Minor.   Although the facts are disputed, appellants concede that their conduct fell within the prohibitions of Penal Code sections 422.6 and 422.7 2 and that the findings of the court were supported by substantial evidence.   Hence, we shall forgo a lengthy factual recitation.

As a result of this attack, the court declared M.S. and A.G. to be wards of the court pursuant to Welfare and Institutions Code section 602, finding true as to each juvenile allegations of the petitions charging two counts of assault with a deadly weapon (§ 245, subd. (a)(1), counts 1 and 2);  battery (§ 243, subd. (d), count 3);  and interference with the exercise of civil rights, a misdemeanor (§ 422.6, count 4).   Counts 1 through 3 were enhanced pursuant to section 422.7, which applies to misdemeanors committed to interfere with civil rights.3

DISCUSSION

I.

The Legislature enacted Penal Code sections 422.6 and 422.7 in 1987 as part of the Bane Civil Rights Act (“the Act”), which implements recommendations of the Attorney General's Commission on Racial, Ethnic, Religious and Minority Violence (“Commission”).  (See Commission Final Report (April 1990) at pp. 19, 46–47.)   Following two years of public hearings throughout California, the Commission concluded that minorities had been harassed, intimidated, assaulted, and even murdered in virtually every part of the state.   It further found that the rate of such hate crimes was increasing, and that existing laws were inadequate to protect Californians from “hate-motivated” violence.  (See Commission Final Report (April 1986) at pp. 10–13, 19, 22–23.)   The impact of such crimes on the community was pervasive, as crimes targeted against members of minority communities “pose[ ] a serious threat to California communities․  Witnesses before the Commission cited the high level of distrust, fear, and alienation in minority communities” because of “hate violence.”  (Id., at p. 13.)   The express purpose of the Act was “to give law enforcement officials clear[,] effective authority to prevent acts of hate violence, and to deter such conduct by establishing serious criminal penalties.”  (Assem.Com. on Pub.Safety, Analysis of Assem. Bill No. 63 (1987–1988 Reg.Sess.), as amended April 6, 1987 at p. 2;  Sen. Rules Com., Analysis of Assem. Bill No. 63 (1986–1988 Reg.Sess.), as amended September 8, 1987 at p. 2;  Sen Com. on Judiciary, Analysis of Assem.Bill No. 63 (1987–1988 Reg.Sess.), as amended June 26, 1987 at p. 2.) 4

At the time of the crimes here,5 section 422.6 provided in relevant part:

“(a) No person, whether or not acting under color of law, shall by force or threat of force, willfully injure, intimidate or 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, or sexual orientation.

“․

“(c) Any person convicted of violating subdivision (a) or (b) shall be punished by imprisonment in the county jail not to exceed six months, or by a fine not to exceed five thousand dollars ($5,000), or by both the fine and imprisonment;  provided, however, that 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.”  (Italics added.)

Section 422.7 provided at all relevant times as follows:

“Except in the case of a violation of subdivision (a) or (b) of Section 422.6, any crime which is not made punishable by imprisonment in state prison shall be punishable by imprisonment in state prison or in county jail not to exceed one year, or by fine not to exceed ten thousand dollars ($10,000), or by both the fine and imprisonment, 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, because of the other person's race, color, religion, ancestry, national origin, or sexual orientation, 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.

“․”

Appellants contend that sections 422.6 and 422.7 violate the First Amendment.   They argue that these statutes are unconstitutionally vague, overbroad, and that they are impermissibly content-based as described in R.A.V. v. St. Paul (1992) 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305.6

A.

After completion of briefing of this case, the United States Supreme Court issued its opinion in Wisconsin v. Mitchell (1993) 508 U.S. 476, 113 S.Ct. 2194, 124 L.Ed.2d 436.   There, the Court upheld the constitutionality of the Wisconsin hate crimes enhancement statute,7 which is very similar to section 422.7, against First Amendment and overbreadth challenges.   The Court held the penalty enhancement of a crime where the perpetrator intentionally selected the victim on account of race or other protected status was not prohibited by the First and Fourteenth Amendments as the statute singled out bias inspired conduct unprotected by the First Amendment.  (Id., at p. ––––, ––––, 113 S.Ct. at pp. 2196, 2201.)  Mitchell recognized that under the enhancement statute “the same criminal conduct may be more heavily punished if the victim is selected because of his race or other protected status than if no such motive obtained.”  (Id., at p. ––––, 113 S.Ct. at p. 2199.)   While reaffirming that “a defendant's abstract beliefs, however obnoxious to most people, may not be taken into consideration by a sentencing judge” (id., at p. ––––, 113 S.Ct. at p. 2200), the Court nevertheless held that motive properly may be considered by the legislature in determining criminal penalties, reasoning that motive plays the same role in the Wisconsin statute as it does under state and federal antidiscrimination laws.  (Id., at p. ––––, 113 S.Ct. at p. 2200.)  Mitchell is dispositive of appellants' First Amendment and overbreadth challenges to section 422.7.

The Supreme Court expressly declined to reach Mitchell's Fourteenth Amendment equal protection and vagueness challenges to the statute, finding they had not been developed below and fell outside the question upon which certiorari had been granted.  (Id., at p. ––––, fn. 2, 113 S.Ct. at p. 2197, fn. 2.)

Foreshadowing the Supreme Court's decision in Mitchell, the Court of Appeal for the Sixth Appellate District in In re Joshua H., supra, 13 Cal.App.4th 1734, 17 Cal.Rptr.2d 291 rejected the constitutional challenge presented here to Penal Code section 422.7.8

The constitutionality of section 422.6 is not necessarily determined by Mitchell and that statute is not addressed in Joshua H.   We believe it presents a more difficult question than the constitutionality of section 422.7, because it contemplates that, where certain conditions are met, conviction may be “based on speech alone.”   The question is whether those conditions save the statute from constitutional infirmity and whether we may construe the statute narrowly so as to overcome First Amendment objections.

B.

 Appellants preliminarily contend that sections 422.6 and 422.7 are unconstitutionally vague.  “Due process requires a ‘ “reasonable degree of certainty in legislation, especially in the criminal law․” ’  (In re Newbern (1960) 53 Cal.2d 786, 792, 3 Cal.Rptr. 364, 350 P.2d 116 ․, quoted in People v. Mirmirani (1981) 30 Cal.3d 375, 382, 178 Cal.Rptr. 792, 636 P.2d 1130․)  Thus, a statute must be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt.  [Citation.]  The second of these criteria is the more important [citations]․”  (People v. Kelly (1992) 1 Cal.4th 495, 533, 3 Cal.Rptr.2d 677, 822 P.2d 385.)

Joshua H. rejected the vagueness challenge to section 422.7, applying “a narrowing construction” to save the statute.   Following People v. Lashley (1991) 1 Cal.App.4th 938, 947, 2 Cal.Rptr.2d 629 Joshua H. interpreted the section 422.7 to require proof of a “ ‘specific intent to deprive a person of a defined constitutional or statutory “right” on account of the person's status as a member of a protected class.’  (See e.g., Screws v. United States (1945) 325 U.S. 91, 101, 104 [65 S.Ct. 1031, 1035, 1036–37, 89 L.Ed. 1495]․)”  (Id., 13 Cal.App.4th at p. 1741, 17 Cal.Rptr.2d 291.)   The “requirement of a specific intent to deprive a person of a federal right made definite by decision or other rule of law saves the Act from any charge of unconstitutionality on the grounds of vagueness.”  (Screws v. United States (1945) 325 U.S. 91, 101, 103, 65 S.Ct. 1031, 1035, 1036, 89 L.Ed. 1495 interpreting the federal criminal civil rights statute upon which these California statutes were modeled;  see also, Joshua H., supra, 13 Cal.App.4th at pp. 1741–1742, 17 Cal.Rptr.2d 291;  People v. Lashley, supra, 1 Cal.App.4th 938, 947–948, fn. 7, 2 Cal.Rptr.2d 629.) 9

Section 422.7, which does not by its terms refer to “willful” conduct, is saved from unconstitutional vagueness by the specific intent requirement.   A fortiori, section 422.6, which expressly requires willful behavior, is not unconstitutionally vague.

C.

Recognizing that Mitchell appears to dispose of their First Amendment and overbreadth challenges to section 422.7, appellants focus their challenge to section 422.6 as an impermissible content-based regulation of expressive activity.   Relying upon R.A.V. v. St. Paul, supra, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed. 2d 305 (hereafter R.A.V.), appellants argue that section 422.6 impermissibly punishes bigoted thought.   We disagree, as we conclude that like section 422.7, section 422.6 falls within the exceptions to the prohibition on content based regulations of speech delineated by the Supreme Court in R.A.V.

In R.A.V., the majority held unconstitutional a St. Paul ordinance that made it a misdemeanor to “place[ ] on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender․”  (Id., 505 U.S. at p. ––––, 112 S.Ct. at p. 2541, 120 L.Ed. at p. 315.)   The Minnesota Supreme Court construed the statute to proscribe only “conduct amounting to ‘ “fighting words” ’ i.e., ‘ “conduct that itself inflicts injury or tends to incite immediate violence․” ’  [Citations.]   As so construed, the ordinance reached only expression that the First Amendment did not protect.”  (Joshua H., supra, 13 Cal.App.4th at p. 1744, 17 Cal.Rptr.2d 291.)

The United States Supreme Court reversed, concluding that as construed by Minnesota, the statute nevertheless violated the First Amendment as it “applied only to specific ‘fighting words,’ i.e., those that insult or provoke violence on the basis of race, color, creed, religion, or gender.   The court observed that ‘[c]ontent-based regulations are presumptively invalid.’  (R.A.V., supra, 505 U.S. at p. ––––, 112 S.Ct. at p. 2542. [120 L.Ed.2d at p. 317].)   Thus, the court's prior statements that certain categories of expression such as defamation, obscenity, and ‘fighting words' were ‘ “not within the area of constitutionally protected speech” ’ were not ‘literally true.’[10 ]  (Id., 505 U.S. at pp. –––– – ––––, 112 S.Ct. at pp. 2542–43 [102 L.Ed.2d at pp. 317–318], quoting Roth v. United States (1957) 354 U.S. 476, 483, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498․)  Those categories of expression may be regulated but not based on their content.”  (Joshua H., supra, 13 Cal.App.4th at pp. 1744–1745, 17 Cal.Rptr.2d 291 italics in original.)   Furthermore, the ordinance imposed viewpoint discrimination in addition to content discrimination.  (R.A.V., supra, 505 U.S. at p. ––––, 112 S.Ct. at p. 2547–48, 120 L.Ed.2d at p. 323.)   Although the ordinance promoted a compelling state interest in insuring the basic human rights of members of groups that have historically been subjected to discrimination (id., 505 U.S. at p. ––––, 112 S.Ct. at p. 2549, 120 L.Ed.2d at p. 325), its content discrimination was not reasonably necessary to achieve that compelling state interest.  (Id., 505 U.S. at p. ––––, 112 S.Ct. at p. 2550, 120 L.Ed.2d at p. 326.)

The court recognized that the prohibition against content discrimination is not absolute.  “It applies differently in the context of proscribable speech than in the area of fully protected speech.   The rationale of the general prohibition, after all, is that content discrimination ‘rais[es] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace,’ [citations].   But content discrimination among various instances of a class of proscribable speech often does not pose this threat.”   (Id., at p. ––––, 112 S.Ct. at p. 2545, 120 L.Ed.2d at p. 320.)   The court then reviewed three exceptions to the First Amendment prohibition of content discrimination, ultimately concluding that St. Paul's ordinance did not fall within any of them.

The first exception was “[w]hen the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable․”  In that situation “no significant danger of idea or viewpoint discrimination exists.”  (R.A.V., supra, 505 U.S. at pp. –––– – ––––, 112 S.Ct. at p. 2545, 120 L.Ed.2d at pp. 320–321.) 11

A second “valid basis for according differential treatment to even a content-defined subclass of proscribable speech is that the subclass happens to be associated with particular ‘secondary effects' of the speech, so that the regulation is ‘justified without reference to the content of the ․ speech․’  [Citation.]”  (R.A.V., supra, 505 U.S. at p. ––––, 112 S.Ct. at p. 2546, 120 L.3d.2d at p. 321, italics in original.) 12

“The last exception concerns selective restriction where ‘the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot.’  (R.A.V., supra, 505 U.S. at p. ––––, 112 S.Ct. at p. 2547 [120 L.Ed.2d at p. 322].)”  (Joshua H. 13 Cal.App.4th at p. 1746, 17 Cal.Rptr.2d 291.)

(1)

 Mitchell establishes that section 422.7 meets the constitutional requirements spelled out in R.A.V.   As Mitchell noted, “[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.” ’  505 U.S., at ––––, 112 S.Ct. at 2547 (quoting St. Paul Bias–Motivated Crime Ordinance, St. Paul, Minn., Legis. Code § 292.02 (1990)).   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,’ 505 U.S., at ––––, 112 S.Ct., at 2547—we held that it violated the rule against content-based discrimination.   See id., at –––– – ––––, 112 S.Ct. at 2547–2548.   But whereas the ordinance struck down in R.A.V. was explicitly directed at expression (i.e., ‘speech’ or ‘messages,’ id., at ––––, 112 S.Ct. at 2547, the statute in this case is aimed at conduct unprotected by the First Amendment.  [¶] Moreover, the Wisconsin statute singles out for enhancement bias-inspired conduct because this conduct is thought to inflict greater individual and societal harm․  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.”  (Wisconsin v. Mitchell, supra, 508 U.S. 476, –––– – ––––, 113 S.Ct. 2194, 2200–2201.)   This analysis applies equally to the materially indistinguishable penalty enhancement statute with which we are here concerned.

(2)

 Section 422.6 also survives the R.A.V. test.   Unlike section 422.7, section 422.6 applies literally to “speech,” as it prohibits not just “force” but the “threat of force.”   However, speech alone is proscribed only “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.”  (§ 422.6, subd. (c).)

“True threats” have traditionally been punishable without violation of the First Amendment.  (Watts v. United States (1969) 394 U.S. 705, 707, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664;  Wurtz v. Risley (9th Cir.1983) 719 F.2d 1438, 1441.)   However, “to satisfy First Amendment protections, punishable threats are limited to those statements which according to their language and context convey a gravity of purpose and likelihood of execution.”  (People v. Fisher (1993) 12 Cal.App.4th 1556, 1559, 15 Cal.Rptr.2d 889;  United States v. Kelner (1976) 534 F.2d 1020, 1026.)  “[S]pecific intent to carry out the threat is not constitutionally compelled, as long as the circumstances are such that the threats are so unambiguous and have such immediacy that they convincingly express an intention of being carried out.  ‘So long as the threat on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution, the statute may be properly applied.’  (United States v. Kelner, supra, 534 F.2d at pp. 1026–1028;․)”  (People v. Fisher, supra, 12 Cal.App.4th at p. 1559, 15 Cal.Rptr.2d 889.)

We believe the concept of “apparent ability” is sufficiently protean to encompass these constitutionally mandated requirements;  that is, a person has the “apparent ability” to carry out a threat of violence if the content and context of the communication clearly convey that capacity.  “[I]mplicit in the nature of such punishable threats is a reasonable tendency to produce in the victim a fear that the threat will be carried out.”  (Wurtz v. Risley, supra, at pp. 1441, 1443;  United States v. Merrill (9th Cir.1984) 746 F.2d 458, 462–463.)   Although section 422.6 is not by its terms limited to threats which induce reasonable fear for safety, we believe “apparent ability” must be construed to include a requirement that the victim reasonably fear for his or her safety.  Section 422.6 may be said to represent a reasonable legislative determination that a person will perceive a threat as real only where he has grounds to believe the perpetrator has the apparent ability to “carry out the threat.”  (§ 422.6, subd. (c).) 13  In adopting this construction we are aware that the phrase “apparent ability to carry out the threat” has been used in other statutes—such as Civil Code section 52.1, subdivision (j) (the civil counterpart of the instant statute), and Penal Code section 95.1, (threatening a juror) 14 —which expressly link “apparent ability” with a requirement that the victim reasonably fears for his or her safety.

Appellants argue that we should not read in language the Legislature neglected to include, particularly where the Legislature adopted the “reasonable fear” language in other statutes.15  However, we are unconvinced that the legislative history demonstrates a deliberate decision that an objectively reasonable fear on the part of the victim would not be required as an element of the crimes described in sections 422.6 and 422.7.   The legislative deliberations reflect an abiding concern that First Amendment freedoms be protected.16  The fact that the Legislature did not define the requisite threat as elaborately in section 422.6 as it did in Civil Code section 52.1, Penal Code section 422 and other statutes proscribing threats is not inconsistent with that constitutional concern.   Certainly the Legislature may achieve the same purpose in more than one way.

We adopt the construction of subdivision (c) urged by respondent and amici not only because the text of the provision is reasonably susceptible to that construction but also because “ ‘[s]tatutes are to be so construed, if their language permits, to render them valid and constitutional rather than invalid and unconstitutional’ and ․ California courts must adopt an interpretation of a statutory provision which, ‘consistent with the statutory language and purpose, eliminates doubt as to the provision's constitutionality.’ ”  (People v. Amor (1974) 12 Cal.3d 20, 30, 114 Cal.Rptr. 765, 523 P.2d 1173 citations omitted;  In re Kay (1970) 1 Cal.3d 930, 942, 83 Cal.Rptr. 686, 464 P.2d 142;  accord Osborne v. Ohio (1990) 495 U.S. 103, 113–114, 110 S.Ct. 1691, 1698–1699, 109 L.Ed.2d 98;  New York v. Ferber (1982) 458 U.S. 747, 769, fn. 24, 102 S.Ct. 3348, 1361, fn. 24, 73 L.Ed.2d 1113.) 17  Here, the language of section 422.6, its construction in conformity with other statutes passed at the same time, and the legislative history all support a construction that the statute applies only to “true threats” engendering reasonable fear in the mind of the victim.

We cannot accept appellants' strained theory that section 422.6 does not proscribe “true threats” because the phrase “group of persons” refers not to any specific group of persons, but to “group” in the abstract.   If, as we believe, the Legislature intended to limit the regulation to true threats, the word “group” must be taken to mean a specific group of persons, not an abstract “group.”

As construed, section 422.6 is a valid restriction of unprotected speech under the exceptions set forth by the United States Supreme Court in R.A.V. as it falls within all three exceptions to the prohibition against content discrimination described in that opinion.

The first exception allows content discrimination in unprotected speech when the basis for the discrimination “consists entirely of the very reason the entire class of speech at issue is proscribable․”  (Id., 505 U.S. at p. ––––, 112 S.Ct. at pp. 2545, 120 L.Ed.2d at pp. 320–321.)   To illustrate this exception, the court utilized the same species of unprotected speech at issue here:  threats of violence.   The court explained that the federal government can “criminalize only those threats of violence that are directed against the President, see 18 USC. § 871 ․—since the reasons why threats of violence are outside the First Amendment (protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur) have special force when applied to the person of the President.”  (Id., 505 U.S. at p. ––––, 112 S.Ct. at p. 2546, 120 L.Ed.2d at p. 321, citation omitted.)  R.A.V. refused to apply this exception to the subcategory of fighting words proscribed by the St. Paul ordinance, explaining that “the reason why fighting words are categorically excluded from the protection of the First Amendment is not that their content communicates any particular idea, but that their content embodies a particularly intolerable (and socially unnecessary) mode [italics in original] of expressing whatever idea the speaker wishes to convey.   St. Paul has not singled out an especially offensive mode of expression—it has not, for example, selected for prohibition only those fighting words that communicate ideas in a threatening (as opposed to a merely obnoxious) manner.  [Italics added.]   Rather, it has proscribed fighting words of whatever manner that communicate messages of racial, gender, or religious intolerance.   Selectivity of this sort creates the possibility that the city is seeking to handicap the expression of particular ideas.”  (Id., 505 U.S. at p. ––––, 112 S.Ct. at p. 2549, 120 L.Ed.2d at pp. 324–325.)   The ordinance did not single out for limitation a particularly offensive mode of expression (the reason why fighting words are generally proscribable), but those which conveyed a particular message of intolerance.   Hence it did not come within the first exception.

In contrast, true threats are outside the First Amendment precisely because of the government's interest in “protecting individuals from the fear of violence, from the disruption the fear engenders, and from the possibility that the threatened violence will occur․”  (Id., 505 U.S. at p. ––––, 112 S.Ct. at p. 2546, 120 L.Ed.2d at p. 321.)   These interests have special force when applied to victims of violent threats targeted because of their race, religion, sexual orientation or other protected status.  (See Wisconsin v. Mitchell, supra, 508 U.S. at p. ––––, 113 S.Ct. at p. 2201, “bias motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest.   [Citations.];”  Joshua H., 13 Cal.App.4th at p. 1748, fn. 9, 17 Cal.Rptr.2d 291 taking judicial notice of the results of numerous studies and reports showing that the incidence of hate crimes is increasing and that “hate crimes are more serious than conventional crimes.”)

Thus, unlike the challenged ordinance in R.A.V., the content based proscription with which we are here presented is directly related to the reason why threats are proscribable generally.  Section 422.6 focuses on threats which induce a distinct, greater fear of violence, a more severe disruption in an individual's life and within the community, and a greater risk the individual will actually be singled out for harm;  hence, its content limitation is therefore justified by precisely the same reasons true threats are outside the First Amendment.

Section 422.6 also comes within R.A.V.'s second exception.   As recognized in Joshua H., supra, “ ‘according differential treatment to’ those who select their victims on the basis of race or other protected status is permissible because the differential treatment ‘happens to be associated with particular “secondary effects” of the speech, so that the regulation is “justified without reference to the content of the ․ speech.”  [Citation.]’  (R.A.V., supra, 505 U.S. at p. ––––, [112 S.Ct. at p. 2546] [120 L.Ed.2d at p. 321], italics in original.)”  (Joshua H., supra, 13 Cal.App.4th at p. 1748, 17 Cal.Rptr.2d 291.)   Like section 422.7, section 422.6 “is indistinguishable from other antidiscrimination laws:  both make it an offense to undertake an act ‘because of’ the victim's race or other status.   While racism or bigotry may typically be involved in these situations, it is the act of discrimination and differential treatment based on race or other status—not the thought behind the act—which is proscribed.”  (Joshua H., at p. 1749, 17 Cal.Rptr.2d 291.)

Finally, also like section 422.7, section 422.6 complies with the third R.A.V. exception to the prohibition of content-based restrictions:  “there is no realistic possibility that official suppression of ideas is afoot.”  (505 U.S. at p. ––––, 112 S.Ct. at p. 2547, 120 L.Ed.2d at p. 322.)   The statute does not punish bigoted thought at all unless it is expressed in either violent attack or threats of violence, neither of which is protected by the First Amendment.   One is free to think speak, publish or advocate racist, homophobic and bigoted ideas and philosophies without violating the Act.   Unlike the ordinance at issue in R.A.V., the Act does not punish “speakers who express views on disfavored subjects” (505 U.S. at p. ––––, 112 S.Ct. at p. 2547, 120 L.Ed. at p. 323) or attempt to “drive certain ideas or view-points from the marketplace.”  (Simon & Schuster v. Crime Victims Bd. (1991) 502 U.S. 105, 112 S.Ct. 501, 508, 116 L.Ed.2d 476, 487.)   That section 422.6 proscribes hate motivated violence or threats regardless whether such conduct is intended to convey any message or is carried out in circumstances likely to be understood as communicative provides assurance it is not calculated to suppress bigoted ideas.

D.

 Appellants contend sections 422.6 and 422.7 are overbroad in that they will chill protected speech.18  We do not agree.

 A statute is considered to be unconstitutionally overbroad if it sweeps within its reach a significant amount of protected speech along with speech that may legitimately be regulated.  (Houston v. Hill (1987) 482 U.S. 451, 458–460, 107 S.Ct. 2502, 2508–2509, 96 L.Ed.2d 398;  Broadrick v. Oklahoma (1973) 413 U.S. 601, 611, 93 S.Ct. 2908, 2915–2916, 37 L.Ed.2d 830.)   The Supreme Court in Mitchell firmly rejected an overbreadth challenge similar to that made here.   Mitchell had argued the statute was “ ‘overbroad’ because evidence of the defendant's prior speech or associations may be used to prove that the defendant intentionally selected his victim on account of the victim's protected status.   Consequently, the argument goes, the statute impermissibly chills free expression with respect to such matters by those concerned about the possibility of enhanced sentences if they should in the future commit a criminal offense covered by the statute.”  (Id., 508 U.S. at p. ––––, 113 S.Ct. at p. 2201.)   The Supreme Court found no merit to this contention, reasoning the “sort of chill envisioned here is far more attenuated and unlikely than that contemplated in traditional ‘overbreadth’ cases.”  (Ibid.)

Moreover, the Supreme Court recognized that the First Amendment does not prohibit evidentiary use of speech to establish the elements of a crime or to prove motive or intent.  “Evidence of a defendant's previous declarations or statements is commonly admitted in criminal trials subject to evidentiary rules dealing with relevancy, reliability, and the like.”  (Id., at p. ––––, 113 S.Ct. at p. 2201.)

Joshua H., supra, also rejected the overbreadth challenge to section 422.7.  “ ‘ “[I]t has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written or printed.”  [Citation.]’  (Cox v. Louisiana (1965) 379 U.S. 559, 563 [85 S.Ct. 476, 480, 13 L.Ed.2d 487]․)”  (Joshua H., supra, 13 Cal.App.4th at p. 1752, 17 Cal.Rptr.2d 291.)

At oral argument, appellants contended that an overbreadth challenge to section 422.7 can be advanced despite Mitchell because our statute may be used to transform into felonies misdemeanors consisting only of speech or expressive conduct.   For instance, they argue that under R.A.V., a statute could not impose a maximum penalty of one year in jail for violating its general fighting words provision, but permit two years in jail for “racist fighting words.”   Such a statute would, they assert, constitute the type of viewpoint discrimination condemned in R.A.V.   Appellants refer specifically to misdemeanors such as Penal Code section 415 (disorderly conduct), section 602, subdivisions (f), (j), (k), (l ) (trespasses upon lands to damage signs or other property);  section 302 et seq. (relating to crimes against good morals, obscene matter, public health and safety, and the like);  and section 403 et seq. (crimes against the public peace).   As will be seen, we are not persuaded that section 422.7 genuinely presents the problem appellants anticipate.

It is a sufficient answer to appellants contention, however, that it was in effect rejected in Mitchell.   The Wisconsin hate crimes enhancement statute—which applies to all misdemeanors coming within the Wisconsin equivalent of the California Penal Code—does not materially differ from section 422.7;  nor do the misdemeanors to which the Wisconsin statute may be applied differ from those to which section 422.7 may be applied.   Indeed, California Penal Code section 415 is the counterpart of Wisconsin Statutes section 947.01 (disorderly conduct).   Absent some real and significant distinction between the Wisconsin and California hate crimes statutes or the misdemeanors to which they may be applied, which does not appear, the rejection of the overbreadth challenge by the United States Supreme Court in Mitchell necessarily determines this issue.

Moreover, the California enhancement statute does not penalize “racist fighting words” or the like, as appellants suggest.   It penalizes the selection of the victim because of that person's race, gender, or other protected status.   This act of selection is conduct.

 Finally, the overbreadth doctrine itself requires rejection of this contention.   As noted, a statute is overbroad where it sweeps within its reach a significant amount of protected speech along with speech that may legitimately be regulated.  (Houston v. Hill, supra, 482 U.S. 451, 458–460, 107 S.Ct. 2502, 2508–2509, 96 L.Ed.2d 398;  Broadrick v. Oklahoma, supra, 413 U.S. 601, 611, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830.)   Assuming the underlying misdemeanor statutes comport with the First Amendment, they must pertain only to speech that is not fully protected, such as, for example, speech that consists of “fighting words.”   If misdemeanors are committed in such a way as to trigger application of 422.7 (because the victim was selected because of his or her race or other protected status), nothing in the overbreadth doctrine prevents punishing such conduct more heavily.   Should application of section 422.7 in a particular case result in punishment of protected speech or other expressive activity the fault would lie not with section 422.7 but with application of the underlying misdemeanor statute in the first instance.

We believe that section 422.6, as we have construed it here to limit any proscription of speech alone to true threats of violence, also withstands the overbreadth challenge.

The central concern raised in the overbreadth challenge to section 422.6 is the same as that articulated by the defendant in Mitchell—that the statute will “chill” protected expression as the perpetrator's speech and affiliations, past and present, will be used to prove intentional selection of the victim “because of” the victim's protected status in a future hate crime prosecution.   We believe this concern to be unfounded.

As Joshua H. recognizes, “ ‘[s]peech is often used to prove crimes that do not proscribe speech, particularly the intent element of those crimes.’ ”  (Id., 13 Cal.App.4th at p. 1752, 17 Cal.Rptr.2d 291 quoting State v. Plowman (1992) 314 Or. 157, 838 P.2d 558, 564–565.)  “Justice Bablitch noted in his Mitchell dissent that ‘[i]t is no more chilling of free speech to allow words to prove the act of intentional selection ․ than it is to allow a defendant's words that he “hated John Smith and wished he were dead” to prove a defendant intentionally murdered John Smith.’  (State v. Mitchell, supra, 485 N.W.2d at p. 822.)   Speech may also be used to prove violations of antidiscrimination and fair housing discrimination laws.   (Id., at p. 823.)”  (Joshua, supra, 13 Cal.App.4th at pp. 1752–1753, 17 Cal.Rptr.2d 291;  accord Mitchell, supra, 508 U.S. 491, at p. ––––, 113 S.Ct. at pp. 2201–2202.)

Furthermore, statements sought to be used as evidence must relate directly to the particular crime or threat to the victim.  “ ‘The statute requires the state to show evidence of bigotry relating directly to the defendant's intentional selection of this particular victim upon whom to commit the charged crime.   The state must directly link the defendant's bigotry to the invidiously discriminatory selection of the victim and to the commission of the underlying crime.’  (State v. Mitchell, supra, 485 N.W.2d at pp. 818–819 (dis. opn. of Abrahamson, J.) italics added.)”  (Joshua H., supra, 13 Cal.App.4th at p. 1753, 17 Cal.Rptr.2d 291.)

Amicus ACLU urges that courts must strictly limit the admissibility of evidence of prior statements or associations which reflect bigotry, pointing out that while such evidence may be relevant, statements and associations remote in time, which have no direct bearing upon the crime at issue are likely to have little probative value, but may be extremely prejudicial.   We believe Evidence Code section 352 usually will require exclusion of such remote statements.

Moreover, each element of the crime must be proven beyond a reasonable doubt.  (Joshua H., supra, at p. 1753, 17 Cal.Rptr.2d 291;  Welf. & Inst. Code, § 701.)   Of course, this rigorous standard of proof applies as well to the fact that the threat or assault was committed “because of” the victim's protected status.   Under the federal civil rights statutes (18 U.S.C. §§ 241 and 242) and various hate crime statutes modelled upon them, such as the statutes before us here, it is not necessary that the deprivation of civil rights be the defendant's predominant purpose;  it is sufficient if it be one purpose.   However, we believe that the victim's status must be a substantial factor in the selection decision.  (See also, State v. Mitchell (1992) 169 Wis.2d 153, 485 N.W.2d 807, 819, 827 (dis. opn. of Bablitch, J.).)   “It is unreasonable to construe ‘because of’ to mean that the statute applies where race, color, or the like is only a minor or de minimis factor in the perpetrator's selection decision.   Such a construction in light of the legislature's rationale ․ would be absurd.”  (State v. Mitchell, supra, 485 N.W.2d at p. 827, dis. opn. of Bablitch, J.)

These requirements ensure that one who commits a violent crime or threatens violence against a particular person or group of persons is not subject to increased punishment merely because he happens to be a bigot, a punishment forbidden by the First Amendment.19

We believe as construed sections 422.6 and 422.7 are narrowly drawn to protect and further a compelling state interest and are not unconstitutionally overbroad.20

II.

Three issues are raised only in behalf of appellant A.G.

A.

 A.G. contends that the jurisdictional findings and the disposition must be reversed because the court construed the section 422.7 allegations in a manner that violated the separation of powers and the court failed to exercise judicial discretion by not declaring whether the underlying offense were misdemeanors or felonies.   In essence, appellant argues the court erroneously believed it was compelled by section 422.7 to declare the underlying “wobblers” to be felonies.   We do not agree.

Counts 1 through 3 of the amended petition charged violations of sections 245, subdivision (a)(1) and 243, subdivision (d), both of which are “wobblers,” which may be punished as misdemeanors or felonies.   The petition designated the offenses as felonies and charged section 422.7 as an enhancement to each count.   By its terms section 422.7 allows punishment of certain misdemeanors as either misdemeanors or felonies if the underlying crimes were committed with the intent to violate the victim's civil rights because of their protected status.  (§ 422.7;  see, e.g., Assem.Com. on Pub.Safety, Analysis of Assem.Bill No. 63 (1987–1988 Reg.Sess.), as amended April 6, 1987 at p. 1 [this bill “provides that any existing misdemeanor, if committed because of the victim's race, color, religion, ancestry, national origin, or sexual orientation, is a felony/misdemeanor (wobbler) ․”].) 21

At the close of the prosecution's case, defense counsel moved to dismiss the section 422.6 and 422.7 charges pursuant to Welfare and Institutions Code section 701.1 on grounds that the evidence was insufficient to show the requisite intent, and that the statutes were unconstitutional under the First Amendment.   The prosecutor countered that the evidence was sufficient and the statutes constitutional.   In so arguing, he termed section 422.7 as “what we would call an enhancement in the sense that it doesn't increase the punishment per se,” but that if the court in its discretion wished to reduce counts 1 or 2 to a misdemeanor, “essentially what [section 422.7] does is it boot straps the misdemeanor up to that felony․  It ․ makes it very difficult for this Court, if this Court were going to ․ reduce [the charges] to a misdemeanor, because it is a hate crime․  422.7 is not an enhancement for punishment purposes, it is just an enhancement to keep these charges as feloneys [sic].”   Whereupon, defense counsel reminded the court that “the legislature certainly did not intend to remove the Court's discretion to reduce an offense.”

After a recess to allow the court to look at the statute, the court denied the motion to dismiss.   Subsequently, the court sustained “all of the counts on all these petitions and all of the enhancements.”   The court expressly found counts 1 through 3 to be felonies.22  The court designated counts 1 through 3 as “serious offenses” pursuant to Welfare and Institutions Code section 707, subdivision (b).   It did not impose additional time for the section 422.7 enhancements.

Appellant claims that section 422.7 allegations were improper “surplusage” because counts 1 through 3 were charged as felonies.   Appellant has waived this claim by failing to raise it below.  (§ 1012.)

We find unpersuasive appellant's contention that the court failed to exercise its discretion on the “wobblers.”   It is, of course, true that the court must actually consider whether to reduce an offense to a misdemeanor.  (In re Curt W. (1982) 131 Cal.App.3d 169, 186, 182 Cal.Rpt. 266.)   The allegations of the petition charging the crime as a felony do not relieve the court of its statutory obligation.   However, there is no indication the court here failed to appreciate and consider that it might declare the underlying crimes to be misdemeanors.   The court expressly found counts 1 through 3 to be felonies;  it had no obligation to state on the record its reasons for doing so.  (In re Jacob M. (1989) 210 Cal.App.3d 1178, 1181–1182, 258 Cal.Rptr. 754.)   The prosecutor never argued the court lacked discretion 23 and defense counsel promptly reminded the court it had discretion to reduce an offense.

The language of section 422.7—which allows the court to punish the underlying crime “by imprisonment in the state prison or in county jail not to exceed one year․”  (§ 422.7, italics added)—does not mandate that any crime be treated as a felony.

Finally, “It is presumed that official duty has been regularly performed.”   (Evid.Code, § 664.)   Hence, appellant bears “the burden of proof as to the nonexistence of the presumed fact.”  (Evid.Code, § 606;  see also, Evid.Code, §§ 605, 660.)   The silence of the record on the issue does not suffice to prove the court failed to exercise its discretion.   (People v. Henson (1991) 231 Cal.App.3d 172, 182, 282 Cal.Rptr. 222;  People v. Flower (1976) 62 Cal.App.3d 904, 910, 133 Cal.Rptr. 455.)   Appellant has failed to sustain her burden.

B.

 Appellant A.G. next contends that the term imposed for violation of section 422.6 (count 4) should be stayed pursuant to section 654 24 because the acts underlying count 4 were the same as those underlying counts 1 and 2 (violations of § 245, subd. (a)(1).)   The argument is untenable.

Section 654 “is intended to ensure that defendant is punished commensurate with his culpability.”  (People v. Harrison (1989) 48 Cal.3d 321, 335, 256 Cal.Rptr. 401, 768 P.2d 1078 quotation omitted.)  “Because of the many differing circumstances wherein criminal conduct involving multiple violations may be deemed to arise out of an ‘act or omission,’ there can be no universal construction which directs the proper application of section 654 in every instance.”  (People v. Perez (1979) 23 Cal.3d 545, 551, 153 Cal.Rptr. 40, 591 P.2d 63 quotation omitted.)

When a defendant's violent conduct affects multiple victims, section 654 does not apply.  (People v. McFarland (1989) 47 Cal.3d 798, 803, 254 Cal.Rptr. 331, 765 P.2d 493;  People v. Miller (1977) 18 Cal.3d 873, 885–887, 135 Cal.Rptr. 654, 558 P.2d 552.)  “[W]hen a defendant commits an act of violence with the intent to harm more than one person or by means likely to harm to several persons, his greater culpability precludes application of section 654.”  (People v. McFarland, supra, 47 Cal.3d at p. 803, 254 Cal.Rptr. 331, 765 P.2d 493 quotation omitted.)

Although it may truly be said that every crime in some manner injures society, in adopting hate crimes legislation the Legislature determined that such crimes injure members of the protected class and society more severely than crimes committed at random.   Hence, the Legislature may penalize hate crimes over and above that imposed for the underlying criminal conduct.   As the Oregon Supreme Court observed in State v. Plowman, supra, 314 Or. 157, 838 P.2d 558, 564:

“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 assailants 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.   Those are harms that the Legislature is entitled to proscribe and penalize by criminal laws.”  (Fn. omitted.)

Joshua H., supra, also noted that “studies also show that hate crimes are more serious than conventional crimes.”  (Id., 13 Cal.App.4th at p. 1748, fn. 9, 17 Cal.Rptr.2d 291;  see also State v. Beebe (1984) 67 Or.App. 738, 680 P.2d 11, 13 [hate crimes “readily—and commonly do—escalate from individual conflicts to mass disturbances.   That is a far more serious potential consequence than that associated with the usual run of assault cases”];  Opening Statement of Rep. Charles Schumer, Chair, July 29, 1992, Hearings on H.R. No. 4797 before the House Subcom. on Crime and Criminal Justice, 102nd Cong., 2nd Sess., at p. 4 [“[hate crime] is no ordinary crime because it transcends its immediate victims and strikes fear and terror into entire communities”].) 25

Here, the sentencing court imposed no commitment time for the section 422.7 enhancements to the section 245, subdivision (a)(1) violations.   Consequently, appellant was not punished for the greater harm resulting from her “hate crimes.”   Since the victims of these crimes included not only Ebarb and Minor, but the larger community, section 654 does not bar punishment for her violation of section 422.6.

To conclude otherwise would unjustifiably render section 422.6 without force in a large class of cases.

C.

Appellant A.G. finally contends the court erroneously forwarded a Welfare and Institutions Code section 827, subdivision (b)(2),26 notice to a community college she had attended.   Pointing out that she was not a “minor” at the time of disposition and that the community college was not a “school district” covering “kindergarten or grades 1 to 12,” she asks this court to notify the school that the notice was sent in error and direct destruction of any record based upon the original notification.   The record is unclear whether this notice was ordered to be sent by the juvenile court or, indeed whether it was actually sent.   If it was sent, this was apparently done by the clerk as a ministerial act.   While we do not adopt respondent's argument that an order directing the clerk to send such notice would be unappealable under Welfare and Institutions Code section 800, under the circumstances we believe appellant's recourse in the first instance is to the juvenile court.27

The judgments are affirmed.

FOOTNOTES

1.   These sections are part of the Tom Bane Civil Rights Act.   (Civ.Code, § 52.1;  Pen.Code, §§ 422.6–422.95;  hereafter “the Act.”)

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

3.   At the dispositional hearing on July 24, 1991, the court declared M.S. a ward of the court, imposed a six-year, two-month CYA commitment, stayed that term, and placed her on probation conditioned on (among other things) six months in juvenile hall.   On September 13, 1991, upon appellant's motion, the court reconsidered its dispositional order, staying the remainder of the juvenile hall commitment and ordering appellant released with credit for time served.The court transferred the matter of A.G. to Alameda County for disposition because appellant legally resided there.   On November 1, 1991, the court found the maximum time of commitment to be five years and two months.   It stayed count 3 pursuant to section 654, and noted that the section 422.7 enhancements did not add confinement time.   The court suspended commitment to CYA and continued appellant on probation with numerous conditions, including 60 days in juvenile hall to be served in county jail (due to her age) beginning January 3, 1992.   The court designated appellant's offenses as Welfare and Institutions Code section 707, subdivision (b), offenses.   The court granted appellant's motion for rehearing of the dispositional order on November 26, 1991, setting aside the 60–day commitment and substituting 100 hours of volunteer work.   It continued all other dispositional orders.

4.   On motion of the California Attorney General, we have taken judicial notice of the numerous studies and reports on the incidence of hate crimes across the nation and in California and of the legislative history of the Act.  (Evid.Code, §§ 452, subd. (c), 453;  see also, In re Joshua H. (1993) 13 Cal.App.4th 1734, 1748, fn. 9, 17 Cal.Rptr.2d 291.)

5.   In 1991, the Legislature amended sections 422.6 and 422.7 to add gender and disability to the list of groups enumerated in subdivision (a) and to increase to one year the maximum of imprisonment specified in subdivision (c) of section 422.6.

6.   A.G. also contends:  (1) her due process rights were violated by the court's failure to exercise its discretion to designate counts 1 through 3 as misdemeanors;  (2) the maximum term of confinement included time attributable to the misdemeanor violation of section 422.6, in violation of section 654;  (3) the juvenile court improperly notified an educational institution of findings in her case.

7.   The Wisconsin statute “enhances the maximum penalty for an offense whenever the defendant ‘[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․’  § 939.645(1)(b).”  (Id., at p. ––––, 113 S.Ct. at p. 2197.)

8.   Joshua H. held that section 422.7 did not violate the First Amendment, concluding that “Hate crime statutes do not run afoul of the First Amendment because they do not proscribe expression.   Rather, they proscribe an especially egregious type of conduct—that of selecting crime victims on the basis of race, color, religion, ancestry, national origin, or sexual orientation.”  (Id., at p. 1739, 17 Cal.Rptr.2d 291 italics in original.)

9.   Sections 422.6 and 422.7 “are modeled after the federal criminal civil rights statute presently codified in 18 United States Code section 242 and the Massachusetts Civil Rights Act of 1979 (Mass.Gen.Laws., ch. 265, § 37.)  [Citation.]”  (People v. Lashley, supra, at p. 947, 2 Cal.Rptr.2d 629.)Title 18, United States Code section 242 provides:  “Whoever, under color of law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both;  and if death results shall be subject to imprisonment for any terms of years or for life.”The Massachusetts law states in relevant part:  “No person, whether or not acting under color of law, shall by force or threat of force, willfully injure, intimidate or interfere with, or attempt to injure, intimidate or interfere with, or oppress or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him by the constitution or laws of the commonwealth or by the constitution or laws of the United States․”  (Mass.Ann.Law, ch. 265, § 37 (Law.Co-op.1991).)”  (In re Joshua H., supra, 13 Cal.App.4th at p. 1742, fn. 4, 17 Cal.Rptr.2d 291;  see People v. Lashley, supra, 1 Cal.App.4th at pp. 947–948, fn. 7, 2 Cal.Rptr.2d 629.)

10.   “In his concurrence, Justice White, joined by Justices O'Connor and Blackmun, criticized the majority for announcing ‘that earlier Courts did not mean their repeated statements that certain categories of expression are “not within the area of constitutionally protected speech.” ’  (R.A.V., supra, 505 U.S. at p. –––– [, 112 S.Ct. at p. 2552,] [120 L.Ed.2d at p. 329].)   That group of justices, plus Justice Stevens, would have invalidated St. Paul's ordinance instead on the ground it was overbroad.   But for this infirmity, the ordinance would have been a valid regulation of unprotected speech for purposes of the Fourteenth Amendment equal protection clause.”  (Joshua H., 13 Cal.App.4th at p. 1745, fn. 8, 17 Cal.Rptr.2d 291.)

11.   Examples cited by the court include:  (1) prohibitions against only that obscenity which is the most patently offensive in its prurience, (2) criminalization of only those threats of violence which are directed against the President of the United States, and (3) regulation of price advertising in one industry but not others, where, in the state's view, the risk of fraud is greater.  (Id., 505 U.S. at p. ––––, 112 S.Ct. at p. 2546, 120 L.Ed.2d at p. 321.)

12.   “For example, a state could permit all obscene live performances except those involving minors.  (Ibid.)  Under this exception, ‘a particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct, rather than speech.’  (Id., 505 U.S. at p. ––––, 112 S.Ct at p. 2547, [120 L.Ed.2d at p. 322];  italics added.)   Thus, telling the enemy the government's defense secrets violates a law against treason.   Similarly, sexually derogatory ‘fighting words' may produce a violation of the general prohibition against sexual discrimination in employment practices under title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e–2).  (Ibid.)”  (Joshua H., supra, 13 Cal.App.4th at p. 1746, 17 Cal.Rptr.2d 291.)

13.   We note that in Wurtz v. Risley, supra, the court recognized that “[i]t is possible by judicial construction to read an element of instilling fear into the term ‘threat,’․ but, the Supreme Court of Montana had imposed no such narrowing construction” on the statute there at issue.  (Id., at p. 1441.)   A fortiori, when the statute before us contains not only the term “threat of violence” but also requires the “apparent ability to carry out the threat,” we may construe it to encompass a requirement that victim reasonably fear the threat will be carried out.

14.   They provide:Civil Code section 52.1, subdivision (j):  “Speech alone shall not be sufficient to support an action under subdivision (a) or (b), except upon a showing that the speech itself threatens violence against a specific person or group of persons;  and the person or group of persons against whom the threat is directed reasonably fears that, because of the speech, violence will be committed against them or their property and that the person threatening violence has the apparent ability to carry out the threat.”Penal Code section 95.1:  “Every person who threatens a juror with respect to a criminal proceeding in which a verdict has been rendered and who has the intent and apparent ability to carry out the threat so as to cause the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family, is guilty of a misdemeanor.”

15.   The April 6, 1987, report of the Assembly Committee on Public Safety, submitted by respondent as Exhibit (3) in the case of M.S., contains immediately adjacent summaries of the civil and criminal provisions of the Act, from which the difference in statutory standards is apparent:“2) Protected Speech.   The bill specifically provides that speech alone shall not be sufficient to support:  [¶] a) A civil action, unless the speech itself threatens violence against a specific person or persons, and that person or persons could reasonably fear that violence would be committed against them or their property, and that the person threatening violence has the apparent ability to carry out the threat.  [¶] b) A criminal action, unless the speech threatened violence against a specific person or group of persons, and the defendant had the apparent ability to carry out the threat.”  (Respondent's Exhibit (3), report of Assembly Committee on Public Safety, “AB 63 (Bane)—As Amended:  April 6, 1987,” p. 2;  italics added.)Other committee reports submitted by respondent contain no reference to a requirement of “reasonable fear.”  (See respondent's Exhibit (4), p. 2, report of Senate Rules Committee;  Exhibit (5), p. 6, Senate Committee on Judiciary.)   Each of those reports describes “apparent ability” as follows:  “apparent ability, e.g., possession of a weapon.”   Appellants contend the Legislature intended “apparent ability” to address only the means for executing a threat.

16.   Section 422.6 expressly protects “speech alone.”   Moreover, the legislative history reveals that the Legislature considered the effects of the statute on protected speech.   The Report of the Senate Rules Committee explicitly notes that “more than mere speech is required to support a criminal or civil action.”  (Sen. Rules Com., supra, at p. 2;  Sen.Com. on Judiciary, supra, at p. 3;  see also Assem.Com. on Pub. Safety, supra, at p. 2.)

17.   In People v. Amor, supra, the court construed a statute to require due process notice and hearing requirements in order to preserve its constitutionality, although the statute did not expressly provide for them.  (Id., 12 Cal.3d at p. 29, 114 Cal.Rptr. 765, 523 P.2d 1173.)

18.   Respondent contends appellants are precluded from raising these overbreadth claims as they have failed to demonstrate that the statutes “as applied” to them are unconstitutional.   We disagree.   The Supreme Court has “emphasized time and again that overbreadth doctrine is an exception to the established principle that ‘a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.’  Broadrick v. Oklahoma, 413 U.S., at 610 [93 S.Ct. at 2915]․;  Brockett v. Spokane Arcades, Inc., 472 U.S. [491] at 503–504, 105 S.Ct. [2794] at 2801–2802 [86 L.Ed.2d 394 (1985)]․  A defendant being prosecuted for speech or expressive conduct may challenge the law on its face if it reaches protected expression, even when that person's activities are not protected by the First Amendment.   This is because ‘the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted.’  [Citations.]  [¶] However, we have consistently held that, because overbreadth analysis is ‘strong medicine,’ it may be invoked to strike an entire statute only when the overbreadth of the statute is not only ‘real, but substantial as well, judged in relation to the statute's plainly legitimate sweep,’ Broadrick, 413 U.S., at 615, 93 S.Ct., at 2917 ․, and when the statute is not susceptible to limitation or partial invalidation.  Id., at 613, 93 S.Ct., at 2916;  [citation].  ‘When a federal court is dealing with a federal statute challenged as overbroad, it should ․ construe the statute to avoid constitutional problems, if the statute is subject to a limiting construction.’  [Citation.]  Of course, ‘[a] state court is also free to deal with a state statute in the same way.’  [Citation.]”  (R.A.V., supra, 505 U.S. at p. ––––, 112 S.Ct. 2538 at p.2558, 120 L.Ed.2d at pp. 336–337 (conc. opn. of White, J.).)

19.   As amicus ACLU correctly notes:  “Rigorous enforcement of the ‘because of’ requirement should also deter arbitrary and discriminatory enforcement of the Act feared by amici California Attorneys for Criminal Justice and the California Public Defenders Association.   The mere fact that an accused is minority and the victim is white would alone be insufficient to support a Bane Act Prosecution.   Furthermore, it should be noted that to the extent that the Act is being selectively prosecuted against poor and minority defendants accused of hate crimes as opposed to white defendants accused of hate crimes, selective enforcement is subject to constitutional challenge.   E.g., Murgia v. Municipal Court, supra, 15 Cal.3d 286, 124 Cal.Rptr. 204, 540 P.2d 44.   The danger of selective enforcement, however, does not establish that the Act is facially unconstitutional.”

20.   Responding to a brief reference in appellant M.S.'s supplemental opening brief and to an argument made by amicus curiae California Public Defenders Association, respondent also argues that the statutes do not deny equal protection of the laws.Appellants do not raise an equal protection challenge in their briefs.   Traditionally, appellate courts will not entertain issues raised by amicus which are not raised by the appellants.  (9 Witkin, Cal.Procedure (3d ed. 1985) Appeal § 497, p. 485, and cases there cited;  Eisenberg, Horvitz & Wiener, Cal. Practice Guide:  Civil Appeals & Writs (TRG 1992) ¶ 92:10–2:10.1, p. 9–37.)   Nevertheless, whether we will address issues raised by an amicus is wholly within this court's discretion.  (Ibid.)  We do not believe the equal protection challenge is adequately raised here and we decline to address it.

21.   Exhibit 3 to respondent's request for judicial notice in M.S.   We took judicial notice of the legislative history of sections 422.6 and 422.7 by order dated October 28, 1992.

22.   The court stated:  “As to petition No. 116302 in the matter of [A.G.], a minor, the Court finds beyond a reasonable doubt Count 1 to be true.   I am finding as to the allegation pled behind [count] 1, violation of Section 422.7 as an enhancement.   The Court finds Count 2 to be true beyond a reasonable doubt;  a violation of section 245A subparagraph 1 of the Penal Code.   The Court finds the enhancement pled behind that Count to be true beyond a reasonable doubt.   It is a violation of Section 422 [.]7 of the California Penal Code.  [¶] The Court finds Count 3 to be true beyond a reasonable doubt, a violation of section 243E of the California Penal Code and the court finds the enhancement pled behind that Count, to wit:  A violation of section 422.7 of the California Penal Code to be true beyond a reasonable doubt.  [¶] The Court finds count 4 to be true beyond a reasonable doubt as to a misdemeanor.  [¶] Count 1 the Court finds to be a felony.   Count 2 the Court finds to be a felony.   Count 3 the Court finds to be a felony.”

23.   If his remarks may be so construed, “the theories suggested [by the prosecutor] are not the exclusive theories that may be considered” by the court.  (People v. Perez (1992) 2 Cal.4th 1117, 1126, 9 Cal.Rptr.2d 577, 831 P.2d 1159.)

24.   “An 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․”  (§ 654.)

25.   We take judicial notice of Congressman Schumer's statement, as requested by the Attorney General.  (Evid.Code, § 452, subd. (c);  see, e.g., People v. Otto (1992) 2 Cal.4th 1088, 1100–1107, 9 Cal.Rptr.2d 596, 831 P.2d 1178.)

26.   Welfare and Institutions Code section 827, subdivision (b)(2), provides that the court shall provide “written notice that a minor enrolled in a public school in kindergarten or grades 1 to 12, inclusive, has been found ․ to have committed any crime listed in paragraphs (1) to (15), inclusive, or (17) to (19), inclusive of subdivision (b) of Section 707 ․ to the superintendent of the school district of attendance․”

27.   Respondent points out that appellant's concern may be moot in light of the requirement that the notice be destroyed “12 months after its receipt from the court or 12 months after the minor returns to public school, whichever occurs last.”  (Welf. & Inst.Code, § 827, subdivision (d).)

KLINE, Presiding Justice.

BENSON and PHELAN, JJ., concur.

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