In re M.S.
- Reporters:
- , ,
- Before:
- Werdegar
WERDEGAR, J.
This case requires us to address various constitutional challenges to
FACTS
The incident giving rise to this case was the subject of conflicting testimony. Members of each side of the fracas testified it stemmed from the other‘s verbal provocations; each portrayed the other as the aggressor. (1) As an appellate court, we view the facts in the light most favorable to the judgment. (People v. Mincey (1992) 2 Cal.4th 408, 432 [6 Cal. Rptr.2d 822, 827 P.2d 388].)
On August 20, 1990, around 2:30 a.m., Jonathan Ebarb, Christopher Minor, Bill Camilo, Dennis Graff and Christopher McMillen were riding in Ebarb‘s flatbed truck to Little Orphan Andy‘s, a restaurant on 17th Street near Castro Street in San Francisco. The Castro District is known as a predominantly gay neighborhood, and Ebarb and his companions were homosexual. They had just gotten off work and planned to eat breakfast at the restaurant.
As Ebarb‘s truck proceeded west along 17th Street, Minor and McMillen, who were sitting in the flatbed, heard male and female voices yelling antigay epithets in a “hateful” sounding tone. Christopher Minor saw two men and
The minors and Miles and Rosenberg continued to shout antigay epithets, threatening to “beat up” the gay men. From the doorway of the restaurant, Ebarb saw the minors, with Miles and Rosenberg, surround his truck. Rosenberg and M.S. began to strike the truck, and Ebarb yelled at them to stop. The minors, Miles and Rosenberg crossed the street, moving toward the gay men. M.S. screamed, “We are going to kill you, you are all going to die of AIDS.” A.G. yelled, “We are going to get you faggots.” Miles and Rosenberg issued similar threats. The four took aggressive stances near the gay men. Holding a beer bottle, A.G. lunged at Ebarb and dared him to hit her. M.S. stood with her fists clenched at chest level. Christopher Minor stood nearby, having obtained a milk crate to use defensively. A.G. reached up and clawed Ebarb‘s face with her left hand. Rosenberg attacked Christopher Minor, who attempted to fight back with the milk crate and to blow a whistle for help.
After a few moments, during which the fight continued, the minors and Miles and Rosenberg retreated down 17th Street. M.S. soon turned around and yelled epithets and declared, “We are going to get you.” At that point, the four returned toward the restaurant. Christopher Minor called out, “Why are you doing this? You leave the neighborhood, leave us alone.” Minor slipped and fell on the sidewalk, whereupon M.S., A.G., Miles and Rosenberg kicked him repeatedly. Ebarb came to Minor‘s aid, but was hit from behind and fell to the ground. Rosenberg delivered a “football” kick to the side of Ebarb‘s head, causing him to lose consciousness. Ebarb was treated at Davies Medical Center for lacerations to the ear.
A petition under
The minors’ cases were consolidated again on appeal. The Court of Appeal affirmed the juvenile court, rejecting the minors’ constitutional challenges to
DISCUSSION
Overbreadth
(2a) The minors contend
(5) As the minors acknowledge, the state may penalize threats, even those consisting of pure speech, provided the relevant statute singles out for punishment threats falling outside the scope of First Amendment protection. (People v. Mirmirani, supra, 30 Cal.3d at p. 388, fn. 10; see Watts v. United States (1969) 394 U.S. 705, 706-708 [22 L.Ed.2d 664, 666-668, 89 S.Ct. 1399].) In this context, the goal of the First Amendment is to protect expression that engages in some fashion in public dialogue, that is, “‘communication in which the participants seek to persuade, or are persuaded; communication which is about changing or maintaining beliefs, or taking or refusing to take action on the basis of one‘s beliefs....‘” (Shackelford v. Shirley (5th Cir.1991) 948 F.2d 935, 938, quoting Tribe, American Constitutional Law (2d ed. 1988) § 12-8, pp. 836-837.) As speech strays further from the values of persuasion, dialogue and free exchange of ideas, and moves toward willful threats to perform illegal acts, the state has greater latitude to regulate expression. (Shackelford v. Shirley, supra, 948 F.2d at p. 938.) Nonetheless, statutes criminalizing threats must be narrowly directed against only those threats that truly pose a danger to society. (People v. Mirmirani, supra, 30 Cal.3d at p. 388, fn. 10.)
A threat is an “‘expression of an intent to inflict evil, injury, or damage on another.‘” (U.S. v. Orozco-Santillan (9th Cir.1990) 903 F.2d 1262, 1265.) When a reasonable person would foresee that the context and import of the words will cause the listener to believe he or she will be subjected to physical violence, the threat falls outside First Amendment protection. (Id. at pp. 1265-1266; In re Steven S. (1994) 25 Cal. App.4th 598, 607 [31 Cal. Rptr.2d 644]; Wurtz v. Risley, supra, 719 F.2d at p. 1441 [“It is true that threats have traditionally been punishable without violation of the [F]irst [A]mendment, but implicit 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.“]; see also NAACP v. Claiborne Hardware Co. (1982) 458 U.S. 886, 927 [73 L.Ed.2d 1215, 1245, 102 S.Ct. 3409] [involving public speeches advocating violence].)
In contrast, “political hyperbole” of the sort at issue in Watts v. United States, supra, 394 U.S. 705 (Watts) remains within the “marketplace of ideas” protected by the First Amendment. (See U.S. v. Gilbert (9th Cir.1987) 813 F.2d 1523, 1531.) In Watts, a young man attending a political rally in Washington, D.C., during the time of the Vietnam War, informed a group of attendees that he had just received his draft notice to report for induction and declared he would not go. “If they ever make me carry a rifle,” he stated further, “the first man I want to get in my sights is L.B.J.” His listeners laughed. (Watts, supra, 394 U.S. at pp. 706-707 [22 L.Ed.2d at pp. 666-667].) In reversing Watts‘s conviction for threatening the life of the President, the United States Supreme Court considered the context and expressly conditional nature of the statement, as well as the listeners’ reaction. The high court concluded the statement, rather than a threat, was merely a “‘very crude offensive method of stating ... political opposition.‘” (Id. at pp. 707-708 [22 L.Ed.2d at p. 667].)
(2b) The minors contend, as they did before the Court of Appeal, that
The minors also contend, as they unsuccessfully did before the Court of Appeal, that
The error stems from an overly expansive reading of a decision of the federal Court of Appeals for the Second Circuit. In United States v. Kelner (2d Cir.1976) 534 F.2d 1020 [34 A.L.R.Fed. 767] (Kelner), defendant was convicted of transmitting in interstate commerce a threat to injure Yasser Arafat, who was then planning to visit the United States.4 On appeal defendant argued that, because he did not intend to carry out his threats, the statements he made were not threats within the meaning of the statute. The Court of Appeals rejected his argument, concluding proof of specific intent to carry out the threat is not constitutionally required so long as circumstances demonstrate the threats “are so unambiguous and have such immediacy that they convincingly express an intention of being carried out.” (534 F.2d at p. 1027, italics in original.) The Kelner court concluded the statute could be enforced as 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.” (Kelner, supra, 534 F.2d at p. 1027.)
The minors read Kelner as requiring any constitutionally valid statute punishing the making of threats to contain the element of immediacy or imminence. They purport to derive this requirement from the doctrines governing speech likely to incite imminent lawless action (see Brandenburg v. Ohio (1969) 395 U.S. 444, 447 [23 L.Ed.2d 430, 433-434, 89 S.Ct. 1827] (Brandenburg)) and “fighting words,” i.e., words that by their very utterance inflict injury or tend to incite an immediate breach of the peace (see Chaplinsky v. New Hampshire (1942) 315 U.S. 568, 571-572 [86 L.Ed. 1031, 1034-1035, 62 S.Ct. 766] (Chaplinsky)). Kelner, however, is distinguishable from the authorities pertaining to either incitement or fighting words, as it construed a statute lacking any requirement of specific intent. (See fn. 4, ante.) In order to restrict the statute‘s application to true threats, as Watts made clear the Constitution mandates, Kelner imposed the immediacy requirement quoted above. (See Shackelford v. Shirley, supra, 948 F.2d at p. 939.) Moreover, Kelner‘s requirement of imminence or immediacy must be read in light of the facts of that case. When the defendant made the threat, his victim had not yet even set foot in the United States, and there was no evidence he was aware of the threat. (Kelner, supra, 534 F.2d at pp. 1021, fn. 2, 1022.) Yet the Kelner court found the requisite immediacy in the fact the defendant professed the present ability to carry out the threat to kill Arafat: “‘We have people who have been trained and who are out now....‘” (Id. at p. 1028.)
Furthermore, in contrast to the federal statute at issue in Kelner,
Given, therefore, the specific intent requirements in the two California statutes at issue in this case, the concerns are absent that motivated the
(6), (2c) As the Attorney General and certain amici curiae6 have urged, despite superficial similarities, threats are not, for First Amendment purposes, treated identically with either fighting words or expression tending to incite imminent lawless action. Both fighting words and incitement have expressive value, the former as provocative communication of a most effective sort, the latter as communication aimed at moving the listener to act. The First Amendment protects the inherent communicative value in each of the two kinds of expression up to the point at which the state‘s compelling interest in maintaining order must outweigh the speaker‘s freedom of expression. This is the purpose served by the rule in Brandenburg, supra, 395 U.S. at page 447 [23 L.Ed.2d at pp. 433-434], that to forfeit constitutional protection the speech must be “directed to inciting ... imminent lawless action” and must be likely to do so, and the corresponding rule of Chaplinsky, supra, 315 U.S. at page 572 [87 L.Ed. at pp. 1035-1036], that fighting words lose First Amendment protection only when, by their very utterance, they “inflict injury or tend to incite an immediate breach of the peace.”
Violence and threats of violence, by contrast, fall outside the protection of the First Amendment because they coerce by unlawful conduct, rather than persuade by expression, and thus play no part in the “marketplace of ideas.” As such, they are punishable because of the state‘s interest in protecting individuals from the fear of violence, the disruption fear engenders and the possibility the threatened violence will occur. (R.A.V. v. St. Paul (1992) 505 U.S. 377, 388 [120 L.Ed.2d 305, 321, 112 S.Ct. 2538].) As long as the threat reasonably appears to be a serious expression of intention to inflict bodily harm (U.S. v. Orozco-Santillan, supra, 903 F.2d at pp. 1265-1266), and its circumstances are such that there is a reasonable tendency to produce in the victim a fear the threat will be carried out (Wurtz v. Risley, supra, 719 F.2d at p. 1441), the fact the threat may be contingent on some future event (e.g., “If you don‘t move out of the neighborhood by Sunday, I‘ll kill you“) does not cloak it in constitutional protection. (See U.S. v. Malik (2d Cir.1994) 16 F.3d 45, 49; People v. Gudger (1994) 29 Cal. App.4th 310, 321-322 [34 Cal. Rptr.2d 510].)
(7) Under
The minors argue that a construction of the phrase “apparent ability” to encompass the element of a reasonable tendency to induce fear would contradict legislative intent.
The minors’ arguments are not persuasive. The presence of the express “reasonable fear” element, in addition to the “apparent ability” element, in
Both “apparent ability to carry out a threat” and “having a reasonable tendency to induce fear in a victim” are essentially two aspects of the same
Causation
Summary
(8) Both
The minors first contend the phrase “because of” as used in
As discussed below, we conclude the statutes are sufficiently clear to meet due process requirements. The language of causation employed in
Vagueness
The minors contend that, in employing the term “because of,”
“Because of” is a term in common usage. It connotes a causal link between the victim‘s characteristic and the offender‘s conduct, and resembles language found in other civil rights and antidiscrimination statutes. (See, e.g.,
The minors likewise do not persuade us the statutes provide insufficiently definite guidelines to constrain their enforcement. When definite guidelines are absent, a criminal statute may deny due process by allowing a “‘standardless sweep‘” by which police, prosecutors and juries may indulge their personal predilections. (Kolender v. Lawson (1983) 461 U.S. 352, 358 [75 L.Ed.2d 903, 909-910, 103 S.Ct. 1855].) Such was the case in Kolender v. Lawson, supra, 461 U.S. 352, wherein the Supreme Court upheld a vagueness challenge to an antiloitering statute (former
Here, by contrast, the conduct punished by
Significantly, as we determined above,
“Because of”
As noted above, the Court of Appeal construed the phrase “because of,” as used in
Our purpose, as in every case of statutory construction, is to discover and effectuate the legislative purpose in enacting
One can articulate, then, the parameters of the expressed bias
Section 422.6 — Content-based Regulation?
(9a) The minors contend
In R.A.V., the high court invalidated, as impermissibly content and viewpoint based, a St. Paul, Minnesota, ordinance providing as follows: “Whoever places 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 commits disorderly conduct and shall be guilty of a misdemeanor.” (R.A.V., supra, 505 U.S. at p. 380 [120 L.Ed.2d at p. 315].)
(10), (9b) Content-based regulations of speech, the high court observed, are presumptively invalid. (505 U.S. at p. 382 [120 L.Ed.2d at p. 317].) The rationale of this general prohibition is that content discrimination “‘rais[es] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.‘” (Id. at p. 387 [120 L.Ed.2d at p. 320], quoting Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd. (1991) 502 U.S. 105, 116, [116 L.Ed.2d 476, 487, 112 S.Ct. 501].) First Amendment jurisprudence, however, has recognized certain categories of speech (e.g., obscenity, fighting words, threats and defamation) as lacking the full extent of constitutional protection and thus regulable for reasons related to their constitutionally proscribable content. (505 U.S. at p. 383 [120 L.Ed.2d at pp. 317-318].) In these contexts of proscribable speech, the prohibition against content discrimination is not absolute. (Id. at p. 387 [120 L.Ed.2d at p. 320].) When the nature of a particular content discrimination is such that there is “no realistic possibility that official suppression of ideas is afoot,” regulation of proscribable speech will survive constitutional scrutiny. (R.A.V., supra, 505 U.S. at p. 390 [120 L.Ed.2d at p. 322].)
The high court concluded the St. Paul ordinance was constitutionally defective because, although facially limited to the category of proscribable fighting words, in practical operation it applied only to fighting words that insult or provoke violence on the basis of race, color, creed, religion or gender. (R.A.V., supra, 505 U.S. at p. 391 [120 L.Ed.2d at p. 323].) The St. Paul ordinance thus went beyond mere content discrimination to actual viewpoint discrimination. (Ibid.) The ordinance handicapped those advocating racism, sexism or other prohibited bias, while imposing no comparable stricture on opponents of those views. (Ibid. [“St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensb[er]ry rules.“].)
The minors, however, assert
The high court in R.A.V. observed that when the state does not “target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.” (R.A.V., supra, 505 U.S. at p. 390 [120 L.Ed.2d at p. 322]; see also Roberts v. United States Jaycees (1984) 468 U.S. 609, 628 [82 L.Ed.2d 462, 478, 104 S.Ct. 3244] [“acts of invidious discrimination [] (like violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact ... are entitled to no constitutional protection.“].) Examples of such permissible regulation include title VII of the Civil Rights Act of 1964 (
Section 422.6 punishes the discriminatory threat of violence, not the thought behind it. (Cf. In re Joshua H., supra, 13 Cal. App.4th at p. 1749 [upholding § 422.7 against 1st Amend. challenge].) Wide channels remain open for expression of racist, homophobic and other discriminatory ideas.
Section 422.7 and Wisconsin v. Mitchell
(11) Section 422.7 raises to felony status a bias-motivated misdemeanor committed against another‘s person or property for the purpose of intimidating or interfering with that person‘s free exercise or enjoyment of a statutory or constitutional right. In Wisconsin v. Mitchell, supra, 508 U.S. ___ [124 L.Ed.2d 436] (Mitchell), the high court upheld, against First Amendment challenge, a statute that enhances punishment for misdemeanors when the offender intentionally selects the victim because of his or her race, religion or other specified characteristic.9 The court rejected the contention the statute impermissibly punished bigoted thought and not conduct. (508 U.S. at p. ___ [124 L.Ed.2d at pp. 444-447].) Sentencing judges, the court observed, traditionally have considered a wide variety of factors, including the defendant‘s motive, in determining the proper sentence. It cautioned, however, a defendant‘s abstract beliefs, no matter how obnoxious, may not figure in sentence selection. (Id. at p. ___ [124 L.Ed.2d at p. 445]; see Payne v. Tennessee (1991) 501 U.S. 808 [115 L.Ed.2d 720, 111 S.Ct. 2597]; Barclay v. Florida (1983) 463 U.S. 939, 949 [77 L.Ed.2d 1134, 1143-1144, 103 S.Ct. 3418] [defendant‘s racial animus against victim a proper consideration in sentencing defendant to death]; Dawson v. Delaware (1992) 503 U.S. 159, 165-168 [117 L.Ed.2d 309, 315-319, 112 S.Ct. 1093] [defendant‘s First Amendment rights violated by admission of evidence in capital trial
Although Mitchell upheld a hate crime sentence enhancement against First Amendment challenge, the minors argue it cannot validate section 422.7, because section 422.7 applies to such “expression-based” misdemeanors as violations of section 41510 and may lead to discrimination on the basis of content. Thus it is overbroad, they contend.
We are unpersuaded by the minors’ contention. An “expression-based” misdemeanor generally may not constitutionally be punished except in a content-neutral way. (R.A.V., supra, 505 U.S. at pp. 385-386 [120 L.Ed.2d at pp. 317-318].) In Mitchell the United States Supreme Court expressly noted the Wisconsin statute it upheld was “similar” to section 422.7. (Mitchell, supra, 508 U.S. at p. ___ [124 L.Ed.2d at p. 443, fn. 4].) The minors’ challenge to section 422.7 fails for the same reason the challenge in Mitchell failed: the statute does not impinge on freedom of expression, but rather, increases punishment for misdemeanors committed because of prohibited bias motivation. In such a case, the conduct is punishable in the first instance, if at all, for reasons unrelated to its expressive content, and the enhancement is proper under Mitchell to sanction bias-motivated conduct, not expression. (See R.A.V., supra, 505 U.S. at p. 388 [120 L.Ed.2d at pp. 319-321]; Mitchell, supra, 508 U.S. at p. ___ [124 L.Ed.2d at p. 447].) If in a particular case prosecution for an “expression-based” misdemeanor, such as section 415, were based discriminatorily on the content of the defendant‘s speech, then the fault would lie with the application to that case of section 415, not with section 422.7. Section 422.7 is therefore not overbroad. Even if it were possible to conjure some potential overbreadth in the statute, it
Application of Section 654
(12) A.G. argues the term imposed for violation of section 422.6 should have been stayed, pursuant to section 654,11 because the acts underlying that violation were the same as those underlying the assault charges. The Court of Appeal rejected her contention. It began its analysis by observing that when a defendant‘s violent conduct affects multiple victims, section 654 does not apply, so that his or her greater culpability may receive commensurate punishment. (People v. McFarland (1989) 47 Cal.3d 798, 803 [254 Cal. Rptr. 331, 765 P.2d 493].) Citing the Legislature‘s determination that hate crimes injure members of the protected class and society more severely than do random crimes and are more likely to lead to escalations of violence, the court reasoned the “victims” of the minor‘s crimes included the larger community, thus invoking the multiple-victims exception to section 654. The Court of Appeal also observed the sentencing court imposed no commitment time for the section 422.7 “enhancements” found true as to A.G. Whatever the relevance of the latter point, the Court of Appeal evidently believed punishing A.G. for violation of section 422.6, in addition to the assault and battery, would not contravene the purposes underlying section 654.
The Attorney General argues the Court of Appeal found, in essence, the Legislature “implicitly exempted” section 422.6 from the operation of section 654, because the impact of the harm resulting from hate crimes extends beyond the immediate victims to the larger community. He urges us to adopt the same reading of the statute.
We are unpersuaded. The Attorney General in effect argues the Legislature intended an implied repeal of section 654, insofar as it would otherwise apply in prosecutions under section 422.6. As a general rule of statutory construction, however, repeal by implication is disfavored, particularly when the assertedly repealed statute, like section 654, has been part of our penal jurisprudence for over a century. (People v. Siko (1988) 45 Cal.3d 820, 824 [248 Cal. Rptr. 110, 755 P.2d 294]; see Kennedy Wholesale, Inc. v. State Bd. of Equalization (1991) 53 Cal.3d 245, 249 [279 Cal. Rptr. 325, 806 P.2d 1360].) We are directed to no legislative history suggesting the enactment of section 422.6 was accomplished with an intent impliedly to repeal section
To say the Court of Appeal‘s analysis of the section 654 issue was erroneous is not to say, however, that minor A.G. is necessarily entitled to a reduction of her maximum commitment time. That determination depends on whether the conduct underlying the “true” finding on the section 422.6 count is the same as that underlying the other counts. As noted above (see fn. 3, ante), the record is not altogether clear on this point. Accordingly, proper resolution of this issue requires a limited remand to the juvenile court.
Sufficiency of Pleadings and Evidence
(13) Sections 422.6 and 422.7, as we have seen, require a specific intent to interfere with the victim‘s enjoyment of a defined civil or constitutional right because of his or her protected characteristic. (Lashley, supra, 1 Cal. App.4th at p. 949.) The minors contend the juvenile court‘s findings must be reversed because the accusatory pleading failed to provide adequate notice of the particular right they interfered with, the juvenile court failed to rectify that omission, and the record contains no evidence of the required intent.
We reject the minors’ contention at the threshold because they failed to raise it either in the Court of Appeal12 or in their petition for review. (
CONCLUSION
To ensure correct application of section 654 in the calculation of minor A.G.‘s maximum commitment time, as to A.G. alone the matter is remanded to the juvenile court for further proceedings consistent with the opinion of this court. In all other respects the judgment of the Court of Appeal is affirmed.
Lucas, C.J., Arabian, J., Baxter, J., and George, J., concurred.
MOSK, J.
I concur in the judgment. The majority‘s disposition is correct, and I join in it. But I cannot agree with the majority‘s analysis of Penal Code sections 422.6 and 422.7 (all statutory references are to this code).
I.
The majority have misconstrued the intent requirement of section 422.6 in a manner that will make prosecuting hate crimes more difficult.
Section 422.6 provides, “No person ... shall by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any ... person” exercising his or her personal liberties “because of the other person‘s race, color, religion, ancestry, national origin, disability, gender, or sexual orientation, or because he or she perceives that the other person has one or more of those characteristics.” (Id., subd. (a).) With regard to acts consisting purely of speech — i.e., threats — a showing is required that “the speech itself threatened violence against a specific person or group of persons and ... the defendant had the apparent ability to carry out the threat.” (Id., subd. (c).)
In other words, section 422.6 does no more than punish threats of violence, assaults or batteries made or committed for a particularly base motive. By contrast, the majority interpret the statute as requiring an intent to “interfere with a person‘s right protected under state or federal law” — i.e., his or her civil rights. (Maj. opn., ante, p. 713.) The statute contains no such requirement.
The majority evidently take this unfortunate step because they discern a First Amendment impediment to the enforcement of section 422.6 if they do
II.
Section 422.6 requires as the mental state an intent to injure. That is all. It does not use the phrase “specific intent.” Indeed, “specific intent” and “general intent” do not define criminal mental states. Rather, they are essentially “labels” attached to particular crimes to identify them as admitting (“specific intent“) or not admitting (“general intent“) the defense of voluntary intoxication. (People v. Cain (1995) 10 Cal.4th 1, 83-84 [40 Cal. Rptr.2d 481, 892 P.2d 1224] (conc. opn. of Mosk, J.), following People v. Hood (1969) 1 Cal.3d 444, 455-456 [82 Cal. Rptr. 618, 462 P.2d 370]; see People v. Whitfield (1994) 7 Cal.4th 437, 463 [27 Cal. Rptr.2d 858, 868 P.2d 272] (conc. & dis. opn. of Mosk, J.).) There is no need to attach one of the labels here. The issue is not implicated before this court. Indeed, there is a need not to attach either label. “Specific intent” and “general intent” have been “`notoriously difficult ... to define and apply,‘” and “have proved to be mischievous.” (People v. Cain, supra, 10 Cal.4th at p. 84 (conc. opn. of Mosk, J.), quoting People v. Hood, supra, 1 Cal.3d at p. 456.) They should not be employed in analyzing section 422.6.
Section 422.7 provides an enhancement under certain circumstances for a misdemeanor motivated by hatred for the victim and committed “for the purpose of intimidating or interfering with that other person‘s” constitutionally or statutorily protected liberties. The mental state required is that of “purpose.” The majority also affix the label “specific intent” to the enhancement defined by section 422.7, but the statute nowhere contains those words. As is true with regard to section 422.6, the use of such a label is “mischievous.” (People v. Cain, supra, 10 Cal.4th at p. 84 (conc. opn. of Mosk, J.).)
Although the majority‘s analysis is flawed, the disposition is correct. I therefore concur in the judgment.
KENNARD, J.
I concur in the majority opinion and in the judgment. I write separately to state my understanding of one part of our decision in this case: the construction of the words “because of” as they are used in Penal Code sections 422.6 and 422.7.
Penal Code section 422.6 defines a criminal offense. At the time of the conduct at issue here, the offense was defined as using force or the threat of
Deceptively simple in appearance, the words “because of” as used in these criminal statutes mask a host of difficult problems. These problems may generally be divided into two categories: problems of proof and problems of interpretation.
Consider first the problems of proof. Because of the complexity of the human mind, determining why a person has acted in a given situation is extremely difficult, even with the person‘s full cooperation. Not infrequently, motives for certain actions remain a mystery, even to the actor. In the context of a criminal trial, the prosecution cannot require the defendant to testify, and therefore must look to the defendant‘s out-of-court statements and conduct to demonstrate a motive or motives for the defendant‘s behavior. But the use of a defendant‘s past statements and associations to prove motive, if not carefully controlled, may have a chilling effect on First Amendment freedoms, and thus the inquiry generally must be confined to statements or conduct of the defendant reasonably close in time or context to the charged acts.
If these problems of proof are overcome, and all of a defendant‘s motives are ferreted out, there will still be problems of interpretation. Very often, motives prohibited by the statute will have combined in the defendant‘s mind with other more commonplace motives completely unrelated to the victim‘s statutorily enumerated characteristics. Again, First Amendment concerns are present. The more attenuated the relationship between the bias motive and the behavior, the greater the risk that the statutory punishment (or increase in punishment) is effectively being imposed for the defendant‘s bigoted thoughts or beliefs or expressions rather than for the behavior. (See generally, Weinstein, Hate Crime and Punishment: A Comment on Wisconsin v. Mitchell (1994) 73 Ore. L.Rev. 345.) When presented with this “mixed motives” situation, how is the jury to determine whether the defendant has acted “because of” the motives that the statutes condemn?
In adopting these conclusions, the majority follows the generally accepted analytical path of using the language of causation developed primarily in tort law to define the role that a bias motivation must play before conduct may be sanctioned as discriminatory.1 The terms “cause in fact” and “substantial factor” have established meanings in tort law. By using those terms here, the majority has adopted those tort law meanings.
“Cause in Fact”
In tort law, a person‘s conduct is a “cause in fact” of another‘s injury if the injury would not have occurred in the absence of that conduct. This is generally referred to as the “but for” test of causation. As this court has recognized, the “but for” test works well in most situations, but it should not be used “when two `causes concur to bring about an event and either one of them operating alone could have been sufficient to cause the result [citation].‘” (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1049 [1 Cal. Rptr.2d 913, 819 P.2d 872], quoting Vecchione v. Carlin (1980) 111 Cal. App.3d 351, 359 [168 Cal. Rptr. 571], italics added; see also Prosser & Keeton, The Law of Torts (5th ed. 1984) § 41, p. 266 [stating that a test other than “but for” is needed when “two causes concur to bring about an event, and either one of them, operating alone, would have been sufficient to cause the identical result“].) The most common illustration of concurrent causation is two fires of independent origin that join before destroying property. Under the “but for” test of causation, neither fire would be a “cause in fact” of the property‘s destruction (because either would have caused the loss in the other‘s absence), and thus persons responsible for the fires would escape
The Restatement Second of Torts, in section 432, gives essentially the same definition of “cause in fact,” in these words:
“(1) Except as stated in Subsection (2), the actor‘s negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent.
“(2) If two forces are actively operating, one because of the actor‘s negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor‘s negligence may be found to be a substantial factor in bringing it about.” (Italics added.)
This definition of “cause in fact,” developed to determine when one individual‘s conduct should be deemed a cause of another‘s injury or loss, must now be adapted to the context of motives as a cause of behavior. When a person has acted to deprive another of civil rights, and the evidence reveals both bias and nonbias motives, the bias motives will be a “cause in fact” of the conduct if either (1) the conduct would not have occurred in the absence of the bias motives, or (2) the bias and nonbias motives are independent of each other and the bias motives would have been sufficient to produce the conduct even in the absence of all nonbias motives. Under our decision today, as I understand it, this is what the prosecution must prove to establish that the bias motivation was a “cause in fact” of conduct charged under Penal Code section 422.6 or 422.7.
In tort law, a finding that the defendant‘s negligence was a “cause in fact” of the plaintiff‘s injury does not end the causation inquiry. A person‘s conduct may be a “cause in fact” of another‘s injury and yet not be a legally sufficient cause. In addition to simple causality, legal causation in tort law incorporates “our more or less inadequately expressed ideas of what justice demands, or of what is administratively possible and convenient.” (Prosser & Keeton, op. cit. supra, § 41, p. 264; see Mitchell v. Gonzales, supra, 54 Cal.3d 1041, 1057-1058 (dis. opn. of Kennard, J.).) This second level of causation inquiry has traditionally gone by the name of “proximate cause.” Because that term has been thought to overemphasize the importance of physical and temporal proximity in making the evaluation, it has in recent years given ground to the term “substantial factor.”3 Thus, negligent conduct will be deemed a legally sufficient cause of another‘s injury only if it is (1) a “cause in fact” of the injury (as defined above), and (2) a “substantial factor” in producing the injury.
Like “cause in fact,” this concept of “proximate cause” or “substantial factor” must be translated from the realm of tort law, where it describes a relationship between one person‘s conduct and another‘s injury, to the particular context at issue here, where it will be used to define the necessary relationship between a person‘s motives and the same person‘s actions. The majority does not undertake to define when an individual‘s bias motivation, having been found to be a “cause in fact” of that individual‘s conduct, can properly be said also to be a “substantial factor” in producing that conduct, generally deeming the term “substantial factor” to be self-defining. I agree that greater precision, although certainly desirable, is not constitutionally required and may well be impossible.
In the end, we must rely on the jury, with its inherent sense of fairness and justice, to use the “substantial factor” requirement in a way that appropriately accommodates the competing interests: on the one hand, deterring discriminatory conduct; on the other, preserving our First Amendment commitment to freedom of thought and speech. Perhaps the most that can be said is that when the defendant has entertained both discriminatory and nondiscriminatory motives, and either alone would have been sufficient to produce the behavior, the defendant should not be found to have acted “because of” the victim‘s statutorily enumerated characteristic if nonbias motives so
With this understanding of our decision today, I concur in the majority opinion.
Notes
At the time of the offense, section 422.6 provided in relevant part as follows: “(a) No person, whether or not acting under color of law, shall by force or threat of force, willfully injure, intimidate, 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 a county jail not to exceed one year, or by a fine not to exceed five thousand dollars ($5,000), or by both that imprisonment and fine. However, 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.”
At the time of the offense, section 422.7 provided in relevant part as follows: “Except in the case of a person punished under Section 422.6, any crime which is not made punishable by imprisonment in the state prison shall be punishable by imprisonment in the state prison or in a county jail not to exceed one year, by a fine not to exceed ten thousand dollars ($10,000), or both that imprisonment and fine, 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 and 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.”
Sections 422.6 and 422.7 are part of the Tom Bane Civil Rights Act (the Bane Act), enacted by the Legislature in 1987 in response to the alarming escalation in the incidence of hate crimes in California and the inadequacy of existing laws to deter and punish them. (See In re Joshua H. (1993) 13 Cal. App.4th 1734, 1748, fn. 9 [17 Cal. Rptr.2d 291].)
Sections 422.6 and 422.7 were subsequently amended to add gender and disability to the list of protected characteristics and to expressly apply, in addition, to violations committed because the defendant perceived the victim to have one or more of the protected characteristics. (Stats. 1991, ch. 607, §§ 5, 6; Stats. 1991, ch. 1184, §§ 1.5, 2.5; Stats. 1994, ch. 407, §§ 2, 3.)
One commentator has challenged the assumption “that the problem of mixed motives is a problem of causation, similar to causation problems in tort law....” (Gudel, Beyond Causation: The Interpretation of Action and the Mixed Motives Problem in Employment Discrimination Law (1991) 70 Tex. L.Rev. 17, 20.) Although the analogy is admittedly not exact, it is sufficiently close to be helpful, at least in the absence of another and superior method of analysis.The legislative history of the Bane Act makes clear the act derives from the federal and Massachusetts statutes referred to in the text. Those statutes, as noted, have been interpreted to require the kind of specific intent discussed above. When a state statute is modeled on a federal statute we presume the Legislature intended to adopt the construction employed by the federal courts. (People v. Simon (1995) 9 Cal.4th 493, 511 [37 Cal. Rptr.2d 278, 886 P.2d 1271]; Los Angeles Met. Transit Authority v. Brotherhood of Railroad Trainmen (1960) 54 Cal.2d 684, 688-689 [8 Cal. Rptr. 1, 355 P.2d 905].) Thus, it is sufficiently “apparent from the context” that, as used in the Bane Act, the term “willfully” refers to a specific intent to invade the victim‘s legally protected rights, by means of threats of violence, because of the victim‘s protected characteristic. Specific intent in this context does not, however, require the defendant to have been “thinking in constitutional terms.” (Screws v. United States, supra, 325 U.S. at p. 106 [89 L.Ed. at p. 1505].) We adopt this reading of