Brief Bank # B-857 (Re: F 4.031 n1 [Cultural Background As Relevant To Defense Theories: Cultural Background As Relevant To Heat Of Passion (PC 192(a))].)
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Date of Brief: February 1988
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION ONE
PEOPLE OF THE STATE OF CALIFORNIA, )
)
Plaintiff and Respondent, ) No. A000000
)
vs. ) Sonoma County
) Superior Court
JOHN DOE, ) No. 00000-C
)
Defendant and Appellant. )
)
Appeal from the Judgment of the
Superior Court of California
in and for the County of Sonoma
____________________________
Hon. Rex H. Sater, Judge
APPELLANT’S SUPPLEMENTAL BRIEF
RICHARD I. TARGOW
Attorney at Law
Post Office Box 1143
Sebastopol, California 95472
Telephone: (707) 829-5190
Attorney for Appellant
INTRODUCTION
Appellant’s opening brief urged this court to reverse the judgment on the ground that important considerations of policy and equity militate in favor of recognizing that the cultural background of an accused is relevant to assessing the reasonableness of his reaction to verbal provocation. This supplemental brief is submitted in support of an additional and more compelling argument: that insofar as words can be understood and evaluated only in their cultural context, the failure of the trial court to take into account the relevant aspects of appellant’s ethnic background in applying the standard of reasonableness constitutes discrimination based on national origin and ethnic characteristics in violation of the 14th Amendment to the U.S. Constitution and Article 1, Section 7 of the California Constitution. [Footnote 1]
ARGUMENT
I. THE COURT’S FAILURE TO CONSIDER APPELLANT’S CULTURAL BACKGROUND IN DETERMINING THE REASONABLENESS OF HIS REACTION TO VERBAL PROVOCATION DENIED HIM THE EQUAL PROTECTION OF THE LAW GUARANTEED BY THE U.S. AND CALIFORNIA CONSTITUTIONS
A. UNDER EITHER THE “SUSPECT CLASSIFICATION” OR “FUNDAMENTAL INTEREST” STRANDS OF EQUAL PROTECTION ANALYSIS, STRICT SCRUTINY IS THE APPROPRIATE STANDARD TO BE APPLIED IN THIS CASE
1. Discrimination on the Basis of Ethnic Characteristics Requires Strict Scrutiny Under the Equal Protection Clauses of the U.S. and California Constitutions
The U.S. Supreme Court has noted the special role played by the Equal Protection Clause in criminal cases: “Discrimination on the basis of race, odious in all respects, is especially pernicious in the administration of justice.” (Rose v. Mitchell (1979) 443 U.S. 545, 555 (grand jury selection). [Footnote 2]
Various reasons have been articulated for the application of a standard of strict scrutiny in cases of discrimination on the basis of race or membership in a particular ethnic group. Foremost among these is the “political powerlessness” theme first articulated by Justice Harlan Fiske Stone in his famous footnote four in United States v. Carolene Products (1938) 304 U.S. 144, 152, n.4, where he suggested that “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities,and which may call for a correspondingly more searching judicial inquiry.”
Another factor that has made race and ethnicity “suspect” is that such classifications “are more likely than others to reflect deep-seated prejudice” (Plyler v. Doe (1982) 457 U.S. 202, 216 n.4). The pervasiveness of stereotypes of Hispanics, particularly in the American mass media, has been thoroughly documented. (See, e.g., Green-berg, Burgoon, Burgoon & Korzenny, Mexican Americans and the Mass Media (1983), pp. 42-52 (hereinafter cited as Greenberg); Christian & Christian, Spanish Language & Culture in the Southwest, in Language Loyalty in the United States (J. Fishman ed. 1966).
An additional reason for heightened scrutiny in these cases, and perhaps the one most pertinent to the issue of impaired self-control raised by the instant case, is that race and ethnic status are “unalterable” (Gunther, Cases and Materials on Constitutional Law (9th ed. 1975) pp. 754, 758). “[T]here is a marked difference between a status or condition such as illegitimacy, national origin or race, which cannot be altered by an individual, and the ‘status’ of [other victims of discrimination].” (Sugarman v. Dougall (1973) 413 U.S. 634, 657 (Rehnquist, J., dissenting). More important for the instant case, leading authorities on linguistic theory emphasize the extent to which the emotive and cognitive meaning of words are among the aspects of human experience that are least susceptible to individual control. “Human beings . . . are very much at the mercy of the particular language which has become the medium of expression for their society.” (E. Sapir, Language, Culture and Personality: Selected Writings (D. Mandelbaum ed. 1951) p. 162 (hereinafter cited as Sapir, Selected Writings); see also B. Whorf, Language, Thought and Reality (1940), p. 214).
When a person invoking the defense of adequate provocation shares the standard English usage and slang expressions of the dominant culture in the United States, the cultural context in which derogatory words were understood by the defendant is routinely, although rarely consciously, taken into consideration by a judge or jury in assessing the meaning and gravity of the offending language. [Footnote 3] The failure to consider the cultural context in which words in this case were understood by a Mexican-American defendant when determining the reasonableness of his reaction to verbal provocation–given the fact that the cultural context in which words are understood by an Anglo, English-speaking defendant is implicitly taken into account in applying the standard of reasonableness to similar situations of verbal provocation–amounts to discrimination based on national origin and ethnic characteristics. [Footnote 4] Both national origin or ethnic characteristics, under the Equal Protection Clauses of the federal and state constitu─ tions, are classifications requiring strict scrutiny (see, e.g., Hernandez v. Texas, supra, 347 U.S. 475, 479 (equal protection challenge may be maintained where “persons of Mexican descent constitute a separate class in . . . [the community] distinct from ‘whites’.”); Castaneda v. Partida, supra, 430 U.S. 482); Fujii v. California (1952) 38 Cal.2d 718, 729-731; Perez v. Sharp (1948) 32 Cal.2d 711, 715). [Footnote 5] Under federal anti-discrimination law, national origin discrimination includes not only discriminatory treatment because of an individual’s or ancestor’s place of origin, but “because an individual has the physical, cultural, or linguistic characteristics of a national origin group.” (Saint Francis College v. Al-Khazraji, supra, 107 S.Ct. 2022, 2028 (Brennan, J., concurring, quoting from 29 C.F.R. § 1606.1 (1986); see also Gutierrez v. Municipal Court of the Southeast Judicial District, 88 L.A. Daily Journal D.A.R. (Jan. 29, 1988) 1039, 1041-1042 (9th Cir., Jan. 27, 1988) (discussing relationships between language, culture, and national origin discrimination under Title VII, 42 U.S.C. § 2000e-2).
2. Under the California Constitution, Personal Liberty is a “Fundamental Interest” that Triggers Strict Scrutiny
It is generally recognized that under the Equal Protection Clause of the California Constitution (art. I, § 7, subd. (a)) and the Fourteenth Amendment of the U.S. Constitution, strict scrutiny may be triggered not only by the presence of a “suspect” classification, such as race or ethnicity (discussed ante), but also by an impact on a “fundamental” right or interest (Griffin v. Illinois (1956) 351 U.S. 12; People v. Olivas (1976) 17 Cal.3d 236, 243-251; In re Gary W. (1971) 5 Cal.3d 296, 306-307).
In developing the “fundamental interest” strand of equal protection analysis, the California Supreme Court has held that personal liberty is a fundamental interest under article I, section 7, and that deprivation of personal liberty by reason of incarceration is therefore sufficient to trigger strict scrutiny without regard to whether the discriminatory treatment of the defendant was based on a suspect classification (People v. Olivas, supra, 17 Cal.3d at pp. 246-250; see also People v. Queen (1987) 194 Cal.App.3d 501, 504).
Appellant’s conviction herein resulted from judicial application of a discriminatory standard that both rested on a “suspect” classification and impacted a “fundamental interest”; there are, therefore, two separate grounds for subjecting appellant’s conviction to strict scrutiny. Under that standard, “the State bears the burden of establishing not only that it has a compelling interest which justifies the [discrimination], but that the distinctions drawn by the law are necessary to further its purpose.” (People v. Olivas, supra, 17 Cal.3d at p. 243 (citations omitted; emphasis in original).
B. THE RELATIONSHIP BETWEEN LANGUAGE, CULTURE AND THE LAW OF ADEQUATE PROVOCATION IS CRUCIAL TO THE APPLICATION OF EQUAL PROTECTION PRINCIPLES IN THIS CASE
The California Supreme Court declared in a recent case that sensitivity toward language differences and language difficulties is “the hallmark of our multiracial state.” This sensitivity, the Court said, has been “appropriately elevated to constitutional proportions” by article I, section 14, of the California Constitution (People v. Aguilar (1984) 35 Cal.3d 785, 794). [Footnote 6]
Aguilar involved the right of a Mexican-American defendant to an interpreter to understand the proceedings against him. The same considerations of fundamental fairness and ethnic equality that animated Aguilar, recognizing a defendant’s right to understand the proceeding, should extend to a defendant’s right to be understood–not only through a literal translation of his primary language, but in terms of the culturally shared meanings of that language as well.
Appellant’s opening brief reviewed the case law in California which makes it clear that in enacting the state’s manslaughter statute (Pen. Code § 192), the Legislature intended to reject the traditional common law rule that mere words can never provide sufficient provocation to reduce murder to manslaughter (People v. Valentine (1946) 28 Cal.2d 121, and authorities cited at AOB 24-27).
Insofar as California law continues to affirm the progressive principle that “verbal provocation may be sufficient” to satisfy the requirement of reasonable provocation (e.g., People v. Berry (1976) 18 Cal.3d 509, 515), the cultural background of a person charged with homicide must necessarily play a critical role in assessing the reaction of the accused to the provocative language used by the victim. This is so because “language is a cultural or social product” (Sapir, Selected Writings, supra, at p. 166), and words take on meaning only in the context of the culture that has produced a particular language.
The pioneering work of Edward Sapir and Benjamin Whorf in the field of linguistic theory established the foundation for the now widely held view among social scientists that language is not merely a technique of communication, but is a symbolic system deeply embedded in a cultural matrix (Sapir, Selected Writings, supra, at pp. 162-66; Whorf, Language, Thought and Reality (1940); Whorf, Collected Papers in Metalinguistics (1952); see generally B. Blount, ed., Language, Culture and Society (1974); see also L. Wittgenstein, The Blue and Brown Books: Preliminary Studies for the “Philosophical Investigations” (1958) p. 134 (“a language . . . means . . . a culture”); F. Fanon, Black Skins, White Masks (C. Markmann transl. 1967), p. 17 (“To speak . . . means above all to assume a culture”). In a study of Hispanic-Americans, four sociologists describe the strong relationship that exists between Hispanic-American culture, language and world view. According to the authors, “the nature of Hispanic-American culture is embedded in the Spanish language; language and culture together form a basic, irreducible orientation of Hispanic-Americans to the external world.” (Greenberg, supra, at p. 42).
Using modern linguistic theory and cultural anthropology to examine the nature of insult behavior, Professor Charles Flynn explains how the reaction of an individual to a particular insult will depend upon the cultural framework in which the offending language is used:
One of the most important characteristics of insult is not only that it is a type of interaction, but that it is never dependent wholly upon the manifest content of a communication. Put in symbolic interactionist terms, insult is created through a particular, mutual definition of a remark or other communication. Thus, the definition of an act or remark as insulting is always dependent upon the shared sets of cultural meanings of the interactants, what ethno-methodologists term “shared conceptions of reality.”
(Flynn, Insult and Society: Patterns of Comparative Interaction (1977), pp. 8-9 (emphasis added)).
In this case, the definition of the victim’s remarks as insulting was totally dependent upon the sets of cultural meanings–the conceptions of reality–that he shared with appellant. By not taking into account those cultural meanings, the trial court necessarily ignored both the words and their import, and necessarily deprived appellant of the benefit of California’s recognition that words indeed can provide adequate provocation to reduce murder to manslaughter.
C. EQUAL TREATMENT OF ETHNICALLY DIVERSE PERSONS REQUIRES THAT IF CERTAIN VERBAL PROVOCATIONS ARE SUFFICIENTLY OFFENSIVE IN AMERICAN CULTURE TO MITIGATE MURDER TO MANSLAUGHTER, THE INSULTS THAT ARE EQUALLY OFFENSIVE IN THE DEFENDANT’S CULTURE SHOULD BE TREATED AS EQUALLY MITIGATING
The Equal Protection Clause of the 14th Amendment requires that “all persons similarly circumstanced shall be treated alike.” (Plyler v. Doe, supra, 457 U.S. 202, 216; F.S. Royster Guano Co. v. Virginia (1920) 253 U.S. 412, 415; see generally Tussman & Tenbroek, The Equal Protection of the Laws (1949) 37 Cal.L.Rev. 341, 344). The California Supreme Court has articulated a similar standard of equal protection under Article 1, Section 7 of the state constitution. “The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.” (In re Gary W. (1971) 5 Cal.3d 296, 303, quoted in People v. Queen (1987) 194 Cal.App.3d 501, 504).
Equal protection requires that similarly provocative insults be similarly treated, without regard to their ethnic origin or cultural derivation. If certain insults are sufficiently offensive in American culture to mitigate murder to manslaughter (People v. Valentine, supra, 28 Cal.2d 121, 130), then insults that are equally offensive in another culture should be treated as equally mitigating.
The longstanding resistance of courts to consider cultural factors in applying various doctrines of excuse and justification in the criminal law is largely attributable to the widespread misunderstanding that exists concerning the concept of cultural relativity. Courts in California, as well as other jurisdictions, have expressed the compelling state interest in maintaining norms of behavior that will not allow a defendant to “set up his own standard of conduct” (People v. Wickersham (1982) 32 Cal.3d 307, 326, quoting People v. Valentine, supra, 28 Cal.2d at p. 139). The concern is that following the dictates of one’s culture should not be permitted to override the duty to obey the law.
However, introducing a proper understanding of the concept of cultural relativity into the law of provocation does not mean that conduct acceptable by the standards of the defendant’s culture is to be regarded as acceptable in American culture when such conduct violates established legal standards of social behavior. As one eminent anthropologist has expressed it, a proper cross-cultural analysis requires that “in every instance the formulae must be worked out that will enable scientists to equate event A2 in culture A1 with event B2 in culture B1.” (E. Hall, The Silent Language (1973), p. 192). Extrapolating from this formulation and expressing it as a function of the constitutional standard of equality which requires that “all persons similarly circumstanced shall be treated alike” (Plyler v. Doe, supra, 457 U.S. 202 at p. 216), the appropriate cross-cultural standard, as it applies to the doctrine of adequate provocation, may be stated as follows:
If the statement “p,” when directed to A in the context of American culture, is sufficient to constitute adequate provocation when judged by American standards of reasonableness, and the statement “q,” when directed to B in the context of another culture, signifies the same degree of offensiveness as the statement “p,” then A and B are similarly situated with respect to the reasonableness of their loss of self-control, and should be similarly treated.
Such a constitutional standard of cross-cultural equality, far from making the standard of the reasonable person any less objective, simply makes the standard as fair and free of prejudice when applied to individuals of diverse ethnic backgrounds as it is when applied to individuals who share the social symbols of the dominant culture.
D. APPLICATION OF THE PROPOSED STANDARD OF EQUAL TREATMENT OF ETHNICALLY DIVERSE PERSONS TO THE EVIDENCE RECEIVED AT TRIAL REQUIRES REVERSAL OF APPELLANT’S CONVICTION
Appellant, John Doe, a young man described by various witnesses as a “noble” person (RT 84), a “peaceful” man (RT 151), “very passive, non-aggressive, dependent [and] somewhat subdued” (RT 335-336), was born and raised in “a very traditional old-fashioned Catholic Mexican family” (RT 336) in a small town outside of Guadalajara, Mexico (RT 336). Approximately three years after settling in California, at the age of 19, and while living alone in a house on the ranch were he worked, he found himself confronted with a quarrel he did not seek and a challenge to his honor which he could not handle. The quarrel ended in the shooting of his boyhood friend, Mr. P, who had come to California with appellant from Mexico (RT 340). [Footnote 7]
On the day of the killing, Mr. P unexpectedly arrived at appellant’s home, demanded money appellant had won in a poker game, and angrily threatened to kill him unless appellant gave him the money (RT 344). In an appar─ ent effort to provoke a fight (RT 344; 298), Mr. P taunted appellant with swear words in Spanish regarding his mother–a form of insult known in Mexican culture as rallar la madre (RT 297-298). This is a form of “fighting words” frequently employed by aggressors as a challenge to defend one’s honor by physical combat. [Footnote 8]
The most offensive of the insults directed at the appellant by the victim, and the one which appears to have finally triggered the shooting (see RT 357), involved the taboo expression “chinga tu madre” (RT 315), which literally translated means, “Go and fuck your mother” (RT 315). The precise words that were used by the victim, as they were reported by the appellant to his brother, were translated as follows:
“We’re gonna get to the mother, and we’re gonna have a fight about this, we’re gonna get to the mother.” And [then] he said, “You know what, I like you to go and fuck your mother.”
(RT 298).
From the average middle-class Anglo perspective, this insulting language looks like little more than an exaggerated form of bad taste, a variation on the epithet “motherfucker,” which although currently regarded as “the most derogatory of all common U.S. epithets” (Wentworth & Flexner, Dictionary of American Slang (2d Supp. Ed. 1975) p. 724), is frequently used as a “familiar, jocular, even affectionate term of address between males,” similar to the meaning of the older, hence weakened epithets, “bastard” and “son of a bitch” (Ibid.; see Freddo v. State (Tenn. 1913) 155 S.W. 170 (“son of a bitch,” as used by victim “meant to be taken as an expression of good fellowship or of slight deprecation” and held insufficient provocation). At worst, the expression “motherfucker”, as it is used in American culture, is a term of extreme disapprobation where “the dislike may apply to any characteristic: selfishness, rudeness, laziness, unethical behavior, etc.” (Wentworth & Flexner, supra, at p. 724). Most significantly, according to American usage “the incest image is purely fig[urative], never lit[eral].” (Ibid.).
In Spanish and Latin-American culture, however, there is a more literal meaning attached to the epithet “chinga tu madre.” As Robert Lozano, an expert witness on the Spanish language, testified at the trial, it is different than the English expression “motherfucker”: “When you say “chinga tu madre,” you are like telling the person to exert an action against his mother. It is like you are giving a command. It’s an imperative.” (RT 319:17-19).
For individuals who grow up in a culture that places a high value on both individual and group honor, and in which the incest taboo is one of the salient elements of its normative code,
any insinuation that someone has been or is engaging in incestuous behavior will constitute a most severe insult . . . . The worst . . . insults are those which not only offend one’s modesty but also one’s sense of piety, since they are aimed not only at the insulted person, but also his mother or his sister. “Go sleep with your sister” is an insult which will make even the most passive Hottentot furious.
(Flynn, Insult and Society, supra, at p. 17).
The sense of honor as “precedence over other men” is particularly strong in Latin American countries where an exaggerated sense of male pride appears to be a vestige of medieval Spanish warrior culture. (Pitt-Rivers, Honour and Social Status, in Honor and Shame: The Value of Mediterranean Society (J. Peristiany edit. 1966) p. 45). In these Latin countries, and in Mexican culture in particular, where there is also a strong identification of the mother with the Virgin Mary, [Footnote 9] the epithet “chinga tu madre” not only has an obscene connotation, but a blasphemous one a well (Wentworth & Flexner, supra, at p.24).
For young males especially, [Footnote 10] a symbolic violation of the incest taboo in an honor-based culture that exalts the mother as the object of religious veneration, is tantamount to a physical assault on the personal honor which such persons identify as the foundation of their self-respect and social dignity. Far from being a manifestation of some deficiency in moral character, the aggressive manner in which one reacts to such ritual insults may play an important role in shaping a young man’s character as well as his moral status in the community (E. Goffman, Interaction Ritual (1967), pp. 253-254, 209 n.87; J. Campbell, Honor, Family and Patronage: A Study of Institutions and Moral Values in a Greek Community (1964) pp. 280-81). Even in American street culture, a too-liter al interpretation of an epithet that violates the incest taboo may “incite aggressive anger even among people who have developed an armor of defense against the insults derived from obscenity.” (E. Sagarin, The Anatomy of Dirty Words (1962) p. 139; cf. Freud, Totem and Taboo (1918) pp. 3-25).
Although it is difficult to find an exact equivalent in English usage for the Spanish epithet “chinga tu madre” in terms of the intensity of the emotional reaction found in the use of certain racist epithets in contemporary American society. The critical importance of considering a person’s racial or ethnic background in evaluating the reasonableness of his or her violent reaction to insulting language is graphically illustrated by the case of a black person enraged by repeated racist slurs whose mitigating claim of reasonable provocation cannot fairly be judged without taking account of that person’s experience of racial discrimination. (See Low, Jeffries & Bonnie, Cases and Materials on Criminal Law (2d ed. 1986) p. 893; Goffman, Interaction Ritual, supra, at p. 254). “‘Dirty nigger’ would probably mean little if said to a white man or even if said by one coloured man to another, but is obviously more insulting when said by a white man to a coloured man.” (Director of Public Prosecutions v. Camplin (House of Lords 1978) 2 All E.R. 168, (opinion of Lord Justice Simon Glaisdale)).
In an analogous context, the Washington Supreme Court has held that a female defendant was entitled to have the jury consider her claim of self-defense “in light of her own perceptions of the situation, including those perceptions which were the product of our nation’s ‘long and unfortunate history of sex discrimination.'” (State v. Wanrow (Wash. 1977) 559 P.2d 548, 559, quoting Frontiera v. Richardson (1973) 411 U.S. 677, 684).
In People v. Natale (1962) 199 Cal.App.2d 153, this court declined to “permit a finding of adequate provocation merely because the word ‘dago’ may have been used by the victim of an assault” (Id. at p. 158 (emphasis added)). It is unclear whether the decision in Natale was based on the implicit judgment that, as a matter of law, this particular ethnic slur, standing alone, was not sufficiently derogatory to constitute adequate provocation, or whether the decision had its roots in the deeper conviction that “though ‘sticks and stones may break our bones,’ we are all expected to maintain a stiff upper lip in the face of verbal aggression” (Fletcher, Rethinking Criminal Law, supra, at p.244).
Whatever view one may take of the nature of the rationale in Natale, it is essential to recognize that even under the vigorous dominion of the First Amendment, there exists a class of “fighting words” that are so offensive to the average person that it is reasonable to expect a violent reaction when such words are “addressed by one citizen to another, face to face and in a hostile manner” (Lewis v. New Orleans (1972) 408 U.S. 913, 913 (Powell, J., concurring) (“god damn motherfucker”)). Accordingly, the U.S. Supreme Court has declared that such words are not protected by the First Amendment and may be punished under criminal statutes provided the statutes are not vague or overbroad (Gooding v. Wilson (1972) 405 U.S. 518; Chaplinsky v. New Hampshire (1942) 315 U.S. 568; see also In re John V. (1985) 167 Cal.App.3d 761 (upholding conviction under Pen. Code § 415, subd. 3, for defendant’s use of such obscene epithets as “fucking bitch” and “whore”).
The “fighting words” doctrine recognizes shock and sense of affront, and sometimes the injury to mind and spirit can be as great from words as from some physical attacks. To say as much is not to imply that resort to homicidal violence is an appropriate form of self-help, but only that the loss of self-control experienced by appellant, in the face of what are regarded as the ultimate “fighting words” in Mexican culture, is not so far beyond the pale of understanding of the reasonable American person, or so inconsistent with mainstream American constitutional values, as to preclude the kind of compassionate judgment that calls for mitigation of his offense from murder to manslaughter.
II. TO THE EXTENT THAT THE COURT IMPLIES THAT IT WOULD FIND NO MITIGATION TO MANSLAUGHTER EVEN WERE THE LAW DIFFERENT THAN THE COURT FOUND IT, THAT IMPLICATION IS WITHOUT A BASIS IN THE FACTS AND DEPENDS ON AN ERROR OF LAW
It is possible to construe certain statements by the trial court as indicating that, even if the law of manslaughter were different than the court found it, the court might still refuse to mitigate the crime to manslaughter. Appellant submits that to the extent that the trial court so indicated, it was both not supported by the record and was based on an erroneous view of the law.
On two occasions, the court implied that it based its ruling on the murder/manslaughter issue in part on the particular “sensitivity” of appellant (RT 475, CT 133). In particular, in denying appellant’s post-judgment motion to reduce the conviction to manslaughter, the court referred to appellant as “a more sensitive–individually sensitive young man” (CT 133).
There is, however, absolutely no evidence in the record to support a finding that appellant was any more sensitive to the particular language used by the victim than the average Mexican male. On the contrary, Dr. La Calle, the forensic psychologist called by the defense, testified that he had “seen even very educated professionals react angrily and physically aggressive after being, what they call in Mexico ‘mentar la madre,’ . . . [which] means insult your mother using that type of words.” (RT 347).
In addition, the court’s view of the law of provocation during the post-judgment hearing was flawed. As a reason for its suggestion that even given a different view of the law it might not mitigate to manslaughter in this case, the court noted that, even in the Mexican culture, the particular epithet used by the victim is one “that doesn’t always lead to violence” (CT 133; emphasis added). The proper question, however, is not whether a reasonable person “would go and shoot somebody” (Ibid.), but whether the provocation was such “as would render ordinary men of average disposition liable to act rashly . . . from this passion rather than from judgment” (People v. Valentine, supra, 28 Cal.2d 121, 139; quoted in People v. Berry, supra, 18 Cal.3d 509, 515).
The point is important enough to have drawn specific comment from the authors of the standard texts on criminal law. Lafave and Scott, for example, write:
It is sometimes stated that, in order to reduce an intentional killing to voluntary manslaughter, the provocation involved must be such as to cause a reasonable man to kill. yet the reasonable man, however greatly provoked he may be, does not kill . . . . What is really meant by “reasonable provocation” is provocation which causes a reasonable man to lose his normal self-control; and, although a reasonable man who has thus lost control over himself would not kill, yet his homicidal reaction to the provocation is a least understandable.
Lafave & Scott, Handbook on Criminal Law (1972) p. 573.)
Perkins makes the same point in a somewhat different fashion:
“If a reasonable man would be strongly moved to kill, the fact that he would be able to control his temper sufficiently to avoid such an extreme measure, whereas [appellant] was unable to do so, does not mean that the circumstance is without the element of mitigation.”
(Perkins, Criminal Law (2d. ed. 1969) p. 55.)
The proper test to be applied is thus whether appellant’s heat of passion–not his act of killing–was reasonable; that is, whether it was “such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances . . . .” (People v. Valentine, supra, at p. 139, quoted in People v. Berry, supra, 18 Cal.3d at p. 550). What the legislature intended in enacting Penal Code section 192 was to mitigate the degree of culpability and punishment for criminal homicide when the situation was such that it appears to the trier of fact to have resulted not from malice, but from an understandable human response which a reasonable person can regard “with empathy and compassion” (People v. Coad (1986) 181 Cal.App.3d 1094, 1108).
Appellant submits, moreover, that whatever implication might arise from the trail court’s two references to appellant’s “sensitivity” is far outweighed by the court’s clear and repeated statements that it was the state of the law rather than the state of appellant that mandated denying the mitigation of the murder to manslaughter (see AOB 17-18).
CONCLUSION
There was a time in the evolution of cultural consciousness in American society when there prevailed the idea of “Americanization” of immigrants and the assimilation of ethnically diverse peoples into some vast “melting pot” of standardized humanity. Within the last quarter century, however, there has emerged the progressive theme of cultural pluralism and ethnic diversity as the preferred model for responding to the realities of an increasingly multiracial and multiethnic society.
There are deep and enduring differences between various ethnic groups, in their cultural achievements and in the broader cultural characteristics in which their differing perceptions of social reality are ultimately rooted. If our legal system is to maintain its commitment to equal protection and fundamental fairness in the administration of justice, it is essential that persons of diverse cultural backgrounds be afforded the opportunity to have their reactions to provocative language judged by the same determinants of social reality that implicitly govern the standard of reasonableness that is applied to persons who share the language community of the dominant culture in America and in our state.
The defense of adequate provocation has its source in the claims that the frailty of human nature makes upon our compassion. The empathy felt by the trial court for the tragic situation in which appellant found himself permeates the record. It was only the court’s conscientious regard for precedent that finally compelled him to find appellant guilty of murder rather than manslaughter. The record is clear that this case was truly one in which persons of principle found their hearts and their minds sorely divided.
Appellant seeks reversal of his conviction not because of some technical defect in the substantive law, but because at the core of our system of criminal justice, there reside basic principles of equal protection and fundamental fairness that elevate human compassion to the level of a constitutional value. In light of those principles, and for the reasons set forth, the law of adequate provocation should be interpreted to permit a trier of fact to consider the cultural background of an accused in determining the reasonableness of his reaction to verbal provocation.
For the foregoing reasons and those discussed in appellant’s opening brief, this court should find that the trial court erred in its refusal to consider appellant’s cultural background in applying the reasonable person standard to the reduction of homicide to manslaughter. Accordingly, this court should either exercise its discretion under Penal Code section 1181, subparagraph (6), to modify the judgment and reduce the conviction to manslaughter, or remand to the trial court to reconsider the judgment in light of the principles discussed herein and in appellant’s opening brief.
DATED: February 26, 1988
Respectfully submitted,
RICHARD I. TARGOW
Attorney at Law
Attorney for Appellant
SUPPLEMENTAL BRIEF FOOTNOTES [Footnotes 1-10]:
Footnote 1: Counsel wishes to express his deep appreciation for the assistance of Prof. Paul N. Savoy, whose profound understanding of constitutional principles provided the genesis for this belief and who provided invaluable assistance during the research and drafting of it.
Footnote 2: Equal protection challenges to discrimination based on racial or ethic prejudice have been sustained in a variety of settings involving the administration of criminal justice.(See Batson v. Kentucky (1986) U.S. , 106S.Ct. 1712 (use of peremptory challenges); Castandeda v. Partida (1977) 430 U.S. 482 (grand jury selection); Ham v. South Carolina (1954) 347 U.S. 475 (voir dire examination); Hernandez v. Texas (1954) 347 U.S. 475 (jury selection); Strauder v. West Virginia (1880) 100 U.S. 303 (same); cf. People v. Snow (1987) 44 Cal.3d 216 (right to trial jury drawn from a representative cross-section of the community); People v. Wheeler (1978) 22 Cal.3d 258 (same).
Footnote 3: On the unconscious character of man linguistic phenomena, and the extent to which the assumptions that underlie the understanding of a particular communication are “covert” in the sense that they rest on common sense, largely unspoken, taken-for-granted premises, see C. Flynn, Insult and Society: Patterns of Comparative Interaction (1977) p. 5; E. Sapir, The Unconscious Patterning of Behavior in Society, in Language, Culture and Society (Blunt edit. 1974), pp. 32-45; E. Hall, The Silent Language (1973) pp. 62-63 (distinguishing between “explicit” and “implicit” culture).
As a matter of law, the fact that ethnic or racial bias may be unconscious or covert makes it no less subject to judicial scrutiny. (See Batson v. Kentucky (1986) U.S. 106 S.Ct. 1712, 1728 (Marshall, J., concurring) (discussing the effect of “a judge’s own conscious or unconscious racism” as leading him to accept certain explanation that “would not have come to his mind if a white [person] had acted identically.”)
Footnote 4: The U.S. Supreme Court has recognized that discrimination on the basis of “ancestry or ethic characteristics” is as invidious as discrimination on the basis of race, “irrespective of whether or not it would be classified as racial in terms of modern scientific theory.” (SaintFrancisCollege v. Al-Khazraji (1987) U.S. , 107 S.Ct. 2022, 2028; emphasis added). (construing 42 U.S.C. §1981 in light of equal protection cases, 107 S.Ct. at p. 2028, n.5).
Footnote 5: The fact that appellant was living in the United States as an undocumented alien (RT 15, 463) does not deprive him ofhis status as a “person” within the meaning of the 14th Amendment of his standing to claim a denial of equal protection when the discrimination is based not on his status as an undocumented alien but on his national origin or ethnic characteristics. (Plyler v. Doe (1982) 457 U.S. 202, 210).
Footnote 6: Article I, section 14 provides in pertinent part: “A person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings.” See generally Chang & Araujo, Interpreters for the Defense: Due Process for the Non-English-Speaking Defendant (1975) 63 Cal.L.Rev. 801, cited with approval in People v. Aguilar, supra, 35 Cal.3d at p. 790.
Footnote 7: With respect to the gun that appellant used in the shooting, the trial judge stated, “[I]t appears clear to the court he only had the gun in his house for self-defense, if you recognize there had been a previous burglary or something . . .” (RT 474.) Approximately two months before the shooting, appellant’s brother, who had been living in the house with his wife and children, was robbed and brutally beaten with a baseball bat by three men who broke into the house (Rt 81). Appellant purchased the gun shortly thereafter (RT 84-85: 1-2).
Footnote 8: Literally translated, “raller” means “to grate, to grate on, to annoy,” or in American syntax, “to goad, spur” (University of Chicago Spanish-English, English-Spanish Dictionary (1948) p. 176). Also see Horowitz & Schwartz, Honor, Normative Anbiguity and Gang Violence (1974) 39 Am. Soc. Rev. 238 (describing the use of verbal provocation to initiate teenager gang violence in an inner city, Mexican-American community). For a general discussion of the use of “fighting words” as a character contest to test “the recipient’s honor, that is, his readiness regardless of price to uphold the codes by which he lives,” See E. Goffman, Interaction Ritual (1967), p. 254 (emphasis added). See also Lobov, Rules for Ritual Insults, in Studies in Social Interaction (D. Sudnow edit. 1972).
Footnote 9: See Galleagos y Chavez, The Northern New Mexican Woman: A Changing Silhouette, in The Chicanos: As We See Ourselves (A. Rejo edit. 1982), pp. 67, 75; Browner & Lewin, Female Alturism Reconsidered: The Virgin Mary as Economic Woman (1982) 9 American Ethologist 61, 62.
Footnote 10: At the time of the shooting, appellant was eighteen years old (AugCT 142). Dr. Jose LaCalle, a forensic psychologist, testified that appellant’s “emotional maturity was somewhere between fifteen and sixteen years of age, significantly behind chronological age.” (RT 335.)
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
PEOPLE OF THE STATE OF CALIFORNIA, ) No.
)
Plaintiff and Respondent, ) Court of Appeal
) No. A000000
vs. )
) Sonoma County
JOHN DOE, ) No. 00000-C
)
Defendant and Appellant. )
)
Appeal from the Judgment of the
Superior Court of California
in and for the County of Sonoma
Hon. Rex H. Sater, Judge
PETITION FOR REVIEW FOLLOWING THE JUDGMENT OF
THE COURT OF APPEAL, FIRST APPELLATE DISTRICT,
DIVISION ONE, AFFIRMING THE JUDGMENT
RICHARD I. TARGOW
Attorney at Law
Post Office Box 1143
Sebastopol, California 95473
Telephone: (707) 829-5190
Attorney for Appellant
by appointment of the
Court of Appeal under the
First District Appellate
Project’s assisted case system
II. THIS COURT SHOULD DECIDE WHETHER APPLICATION OF THE “OVERLY-SENSITIVE” EXCEPTION TO THE DEFENSE OF PROVOCATION, WHEN APPLIED TO AN DEFENDANT WHOSE VICTIM KNEW OF AND EXPLOITED HIS SENSITIVITIES IN ORDER TO PROVOKE HIM, IS A DENIAL OF DUE PROCESS AND EQUAL PROTECTION
When a classification affects a “fundamental interest” such as personal liberty, the standard of review is one of strict scrutiny (Griffin v. Illinois (1956) 351 U.S. 12; People v. Olivas (1976) 17 Cal.3d 236, 243-251; In re Gary W. (1971) 5 Cal.3d 296, 306-307). Under that standard, “the State bears the burden of establishing not only that it has a compelling interest which justifies the [discrimination], but that the distinctions drawn by the law are necessary to further its purpose.” (People v. Olivas, supra, 17 Cal.3d at p. 243 [citations omitted; emphasis in original].)
In this case, the Court of Appeal repeated and relied on the familiar rule which “precludes particularly sensitive or irrational individuals from claiming the defense [of adequate provocation].” (Opn. p. 6.) As applied in this case, however, the rule is so broadly drawn that it unconstitutionally burdens an individual for whom exclusion under the exception is not rationally related to the purposes for it.
From it’s inception, the hyper-sensitivity exception was intended to prevent exceptionally pugnacious or ill-tempered persons from benefitting from the provocation defense. Thus, taking into account a defendant’s physical and mental condition would result in the “encouragement of vicious habits” (Small v. Commonwealth (1879) 91 Pa. 304, 308), and “become the refuge for ill-tempered, irresponsible citizens” (Hart v. United States (D.C.Cir. 1942) 130 F.2d 456, 458). The common expression of the doctrine in California springs from People v. Logan (1917) 175 Cal. 45, 48: “Thus, no man of extremely violent passions could so justify or excuse himself if the exciting cause be not adequate, nor could an excessively cowardly man justify himself unless the circumstances were such as to arouse the fears of the ordinarily courageous man.” The mention of the “cowardly” in the foregoing quote contains the root of the constitutional problem. There can be no disagreement that the hot-head or bully-boy should not be entitled to the benefits of a provocation defense. Neither should it be available to the hyper-sensitive who responds with homicide to “any fancied slight” or insult which can occur in common daily discourse (People v. Ogen (1985) 168 Cal.App.3d 611, 622, cited in Opn. at pp. 6-7). Application of the exception in such cases is an expression of the strong moral inhibition against partially excusing or justifying the intentional killing of an innocent person when the victim did not engage in any conduct that a person of average sensibility would regard as provocative.
As legitimate and compelling as these reasons are, however, the constitutional standard of equal protection requires at the very least that there be a rational relationship between these purposes and the exclusion of this defendant from the benefits of the provocation defense. The important constitutional issue raised by this petition is whether any of these purposes are rationally served in a case in which (1) the sensitivity of the accused is not attributable to deficiencies of moral character, and (2) the sensitivities of the accused were known to and deliberately exploited by the eventual victim for the purpose of provoking a fight.
The Court of Appeal’s recitation of appellant’s “defects” provides a stark example of the constitutional infirmities of a doctrine reduced to rote application. “The evidence established that appellant was immature for his age, quiet, sometime moody, and was feeling vulnerable living in the house alone after his brother was physically attacked [in the same house]. It also indicated that appellant had a traditional religious upbringing and was not accustomed to fighting.” [Footnote 11] It is difficult to find a rational basis for the conclusion that immaturity, a quiet and passive disposition, a traditional religious upbringing, and a quite reasonable feeling of vulnerability arising from a recent attack in the house in which he was living, brings him within the same excluding category as the morally repugnant bully-boy or the hyper-sensitive reactor to every fancied slight. There is simply no rational relationship between the purposes of the rule and its application to this defendant.
To the extent that the purpose of the rule is to deter homicidal misconduct by not extending the benefits of the doctrine to persons who react homicidally to essentially innocent remarks, the purpose cannot be served where, as here, the sensitivities of the accused are both known to and deliberately provoked by the victim/provocateur. The constitutional infirmity is that a rule designed to distinguish between the morally innocent and morally deficient has swept so broadly as to ensnare a morally innocent actor who was provoked by a morally culpable victim.
III. THIS COURT SHOULD DECIDE WHETHER THE REASONABLE MAN STANDARD REQUIRES, AS BOTH COURTS BELOW SUGGEST, THAT THE PROVOCATION BE ONE THAT WOULD ALWAYS PROVOKE A HOMICIDAL RESPONSE
A. THE RULINGS BELOW SUGGEST THAT THE DOCTRINE OF PROVOCATION REQUIRES THAT THE PROVOCATION BE SUCH THAT WOULD ALWAYS LEAD TO HOMICIDAL VIOLENCE
Both of the lower courts suggest in their rulings that a provocation is not adequate to mitigate murder to manslaughter unless it is a provocation that would normally or always lead to homicidal violence. This is manifestly not the rule, and if allowed to stand would lead both to absurd results and the virtual emasculation of the provocation doctrine. The trial court, in explaining its denial of the posttrial motion, noted that “There is evidence in the case that even within that culture — it’s a street epithet that doesn’t always lead to violence. It’s a severe insult, but it’s thrown back and forth in the street.” (CT 133.)
Appellant argued on appeal that this represented a misstatement of the doctrine–that the question was not whether the provocation would always lead to violence, but whether it ‘”would render ordinary men of average disposition liable to act rashly . . . from this passion rather than from judgment.'” (Appellant’s Supp. Brf., p. 25, quoting People v. Valentine (1946) 28 Cal.2d 121, 139.) In response, the court of appeal answered (1) that appellant cited no California authority for the distinction; and (2) that the court “was simply citing evidence in support of its conclusion that the provocation was only slight.” (Opn. pp. 11-12.)
This constitutes both an unsupportable misreading of the trial court’s statements, [Footnote 12] and, worse, a misstatement of the law of provocation.
B. THIS COURT SHOULD CLARIFY THE RULE SO AS TO PREVENT CONTINUED MISSTATEMENT AND MISAPPLICATION OF IT
Both of the lower courts relied on a statement by expert witness Roberto Lozano that the insult, although it is used in heated exchanges to provoke, is also used in common street exchanges (RT 308-309, 311, 314, 317-318).
The question answered by the trial court, however–is this an epithet that always leads to violence–is simply not the question posed by the doctrine of provocation. The Court of Appeal is correct that there is no California authority for the distinction posed by appellant, but this is because common sense and the history of provocation law lead so naturally to such a distinction that it would not have been discussed in earlier cases.
The “objective” portion of the test asks whether the provocation is such as would render an ordinary man incapable of controlling his actions. If the Court of Appeal is correct, that it must be a provocation that always leads to homicidal violence, the rule would swallow the defense. For example, there is a long tradition in the common law that makes the finding out about adultery a legally adequate provocation to reduce the ensuing homicide to manslaughter (Donovan & Wildman, “Is the Reasonable Man Obsolete? A Critical Perspective on Self Defense and Provocation” (1981) 14 Loyola L.Rev. 435, 446; Comment, “Provoked Reason in Men and Women: Heat-of-Passion Manslaughter and Imperfect Self-Defense” (1986) 33 UCLA L.Rev. 1679, 1685-1686). Nowhere is it suggested, however, that this is so because discovering the infidelity of one’s spouse always leads to homicidal violence. Were it so, the prisons would be swollen with jealously homicidal spouses.
So, too, with verbal insults. Indeed, the very statement of the doctrine requires that “such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances.” (People v. Logan, supra, 175 Cal. 45, 48.) The question is, then, not whether there the provocation would always lead to violence, but whether it would lead to a loss of control in some circumstances, circumstances such as those in which the appellant found himself. In the case at bench, that question was answered in the affirmative by both expert witnesses (RT 317-318, 320-321, 346-347).
To the extent that both of the courts below relied on a misstatement of the standard of adequate provo─ cation, this court should clarify that standard for the future guidance of the lower courts.
IV. THIS COURT SHOULD DECIDE THE IMPORTANT SUBSTANTIVE ISSUES RAISED BY THIS CASE AND AVOIDED BY THE COURT OF APPEAL’S INTERPRETATION OF THE TRIAL COURT’S DECISION
Appellant’s underlying substantive issues, avoided the court of appeal, raise important questions for this state at this time in its history, a time of increas─ ing ethnic diversity. These questions are: (1) whether a defendant’s cultural background can or must, as a matter of state decisional law, be taken into account in applying the reasonable person standard to the doctrine of provocation; and (2) whether, as a matter of constitutional law, the failure to take defendant’s cultural background into account as a “circumstance” affecting his reaction to provocation is a denial of equal protection.
Appellant raised these issues in over 45 pages of argument in his opening, supplemental and reply briefs, and can only summarize them in the context of this petition for review. The importance of those issues in California, however, cannot be exaggerated, for we are increasingly a society of diverse cultural background and upbringing, and continuing rote application of a reasonable man standard which fails to account for the diversity of the population raises serious questions both of policy and of constitutionality.
A. THERE IS NOTHING IN THE HISTORY OR APPLICATION OF THE LAW OF PROVOCATION THAT PRECLUDES A DEFENDANT’S CULTURAL BACKGROUND FROM BEING TAKEN INTO ACCOUNT AS A “CIRCUMSTANCE” OF THE PROVOCATION
Appellant argued in his opening brief that the neither the common law development of the reasonable man standard nor its application in reported California cases precludes taking a defendant’s cultural background into account (AOB, pp. 19-33).
First, appellant argued that although the “reasonable man” standard suggests an objective test that relies on an average person of this culture, the historical development of the doctrine shows instead that the purpose of the doctrine was to focus on the particular defendant and to acknowledge that in some circumstances of provocation, the defendant could not be said to entertain any malice aforethought (see AOB, pp. 19-21).
Second, appellant’s review of the reasons underlying the reasonable man standard, as stated ante, was to preclude from its benefits those bully-boys and hot-heads that society was not prepared to excuse from their homicidal passions (AOB pp. 22-24).
Finally, appellant discussed two cases which, despite the usual broad statements of the rule, did in fact take into account the background and frailties of the defendants involved, People v. Slater (1943) 60 Cal.App.2d 358, 371, and People v. Peter (1932) 125 Cal.App. 657, 665 (discussed at AOB pp. 25-26).
B. THE FAILURE TO TAKE APPELLANT’S CULTURAL BACKGROUND INTO ACCOUNT CONSTITUTES A DENIAL OF EQUAL PROTECTION UNDER THE STATE AND FEDERAL CONSTITUTIONS
Appellant raised the equal protection argument in his supplemental brief. The argument takes the following form:
First, under either the “suspect classification” or “fundamental interest” strands of equal protection analysis, strict scrutiny must be applied. Appellant’s ethnic origins involve a suspect classification, while his liberty interest invokes fundamental interests (Supp. Brf. pp. 2-8).
Second, and crucially for this case, the common sociological and anthropological understanding of language in general and insults in particular is that they are culture-specific. That is, it is impossible to assess the reaction of a person to an insult without reference to the culture in which he grew up (see Supp. Brf., pp. 12).
Third, therefore, because a trier of fact’s assessment of a native-born defendant’s reaction to provocative words implicitly but necessarily includes an under─ because equal protection requires that we treat persons in like situations in a like manner, a foreign-born defendant’s reaction to an insult must take into account the cultural determinants of his reaction (Supp. Brf. pp. 12-23).
Both national origin or ethnic characteristics, under the Equal Protection Clauses of the federal and state constitutions, are classifications requiring strict scrutiny (see, e.g., Hernandez v. Texas, supra, 347 U.S. 475, 479 (equal protection challenge may be maintained where “persons of Mexican descent constitute a separate class in . . . [the community] distinct from ‘whites’.”); Castaneda v. Partida, supra, 430 U.S. 482); Fujii v. California (1952) 38 Cal.2d 718, 729-731; Perez v. Sharp (1948) 32 Cal.2d 711, 715). Under federal anti-discrimination law, national origin discrimination includes not only discriminatory treatment because of an individual’s or ancestor’s place of origin, but “because an individual has the physical, cultural, or linguistic characteristics of a national origin group.” (Saint Francis College v. Al-Khazraji, supra, 107 S.Ct. 2022, 2028 (Brennan, J., concurring, quoting from 29 C.F.R. § 1606.1 (1986); see also Gutierrez v. Municipal Court of the Southeast Judicial District, 88 L.A. Daily Journal D.A.R. (Jan. 29, 1988) 1039, 1041-1042 (9th Cir., Jan. 27, 1988) (discussing relationships between language, culture, and national origin discrimination under Title VII, 42 U.S.C. § 2000e-2).
C. THIS CASE RAISES IMPORTANT POLICY ISSUES REGARDING THE APPLICATION OF THE LAW OF MANSLAUGHTER TO A POPULATION OF INCREASINGLY DIVERSE BACKGROUND
For much of our history, it was sufficient to say that foreign-born persons must adhere to our laws and therefore could not be allowed to rely on their own backgrounds to assert the provocation defense. In an increasingly diverse society, however, exclusion of large numbers of persons from the benefits of the provocation defense raises serious questions of policy and of equal protection. This case presents this court with a unique opportunity to settle, or at least to advance the resolution of, those questions.
It is important to note that appellant is not seeking a change in the reasonable man standard; indeed, appellant has acknowledged above that there are important reasons for its continued use. Appellant is, however, seeking a refinement–whether it be a reinterpretation or simply a restatement–of that standard to avoid serious constitutional infirmities in its application.
FOOTNOTES TO PETITION FOR REVIEW [Footnotes 11-12]:
Footnote 11: The Court of Appeal goes on to repeat and replicate an error of the trial court – that the provocation was not so great that it would “necessarily” result in an inability to act rationally (Opn. P. 12). Appellant has pointed out in several briefs, including his petition for rehearing, that the standard has never been whether a triggering provocation would necessarily trigger a homicidal response. If it did, every person who discovered a spouse’s infidelity would kill. The standard, rather, is whether a provocation could trigger an irrational response that makes the accused’s actions understandable. See Argument III, infra.
Footnote 12: The trial court made the following statements regarding the provocative nature of the insults:
Again I say, factually, it arose out of a provocation, it was a verbal provocation, the highly provocative words. Words that in the defendant’s culture would be highly provocative were used.” (RT 473:25-28; emphasis added.)
There is no question the evidence in this case is that . . . it was a verbal altercation which culminated in the use of those words, Spanish words with reference to his mother, and within his culture that is very insulting. (RT 475:21-26; emphasis addes.)
What I am saying is there was a provocation, there was a use of those words, within his culture it is highly inflammatory . . . (RT 476:10-12; emphasis added.)
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
U.S. Court of Appeals Docket Number: 93-00000
Lower Court Docket Number: C 90 0000 MHP
JOHN DOE, )
a/k/a John Doe, )
)
Petitioner and appellant, )
)
vs. )
)
JAMES ROWLAND, Director, )
California Department of )
Corrections; and R.G. BORG, )
Warden of the California )
State Prison, Folsom, )
)
Respondents and appellees. )
)
Appeal from the Judgment of the
U.S. District Court, Northern
District of California
Hon. Marilyn Hall Patel, Judge
BRIEF FOR APPELLANT
RICHARD I. TARGOW
Attorney at Law
Post Office Box 1143
Sebastopol, California 95473
Telephone: (707) 528-7553
Attorneys for Appellant
A. THE CALIFORNIA LAW OF ADEQUATE PROVOCATION AND THE DISTRICT COURT DECISION.
In reviewing state convictions, federal courts must apply state interpretations of state law. McSherry v. Block, 880 F.2d 1049, 1052 and n. 2 (9th Cir. 1989). The California law of criminal homicide, as it bears on this case, can be stated as follows: Absent justification or excuse, all intentional killings are felonious homicides. Felonious homicide is punishable as murder unless it is committed “upon a sudden quarrel or heat of passion,” in which case it is punished as voluntary manslaughter. Cal. Penal Code, sec. 192(a).
In order to establish the “heat of passion” required to reduce murder to manslaughter, the defendant must show that his killing of the victim was the product of an adequate provocation. In California, the defense of provocation consists of a subjective and an objective element. The subjective component requires that the defendant is in fact provoked. People v. Logan, 175 Cal. 45, 48-49 (1917). The trial court in the instant case found that petitioner’s passions were actually triggered by the victim’s insults which caused him to lose control and that the subjective element of the test was therefore satisfied. C.T. 467.
The objective element of the defense requires the provoked passion to be reasonable. It “must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances.” People v. Logan, supra, 175 Cal. at 49. In clarifying the reasonable person standard, the California Supreme Court has declared that “the fundamental of the inquiry is whether or not the defendant’s reason was, at the time of his act, so disturbed or obscured by some passion — not necessarily fear and never, of course, the passion for revenge — to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.” People v. Logan, supra, 175 Cal. at 49 (emphasis added); accord, People v. Wharton, 53 C.3d 522, 571 (1991); People v. Berry, 18 Cal.3d 509, 515 (1976). The standard jury instruction uses virtually the same language [Footnote 13]. It is in the reasonableness to the facts in the record that the district court erred.
The critical issue raised by the district court’s conclusion that petitioner, to prevail on his defense of provocation, must prove that the average Mexican male would kill in response to the provocation, can be succinctly stated: Does acting “rashly” or “without due deliberation and reflection,” People v. Logan, supra, mean that the provocation must be such that it would cause a reasonable person to kill, or is it sufficient that a reasonable person would react in a violent or otherwise irrational manner?
If the California Supreme Court had meant to impose a requirement of homicidal rage, it would not have used the language it did in articulating the relevant standard. Instead of stating that the provocation must render reasonable persons “liable to act rashly or without due deliberation and reflection,” the court would simply have declared that the provocation must render reasonable persons “liable to kill,” or “liable to react in the same manner the accused reacted.” Acting “rashly” connotes acting with “too much haste or too little reflection.” Webster’s New Twentieth Century Dictionary (1953) 1407. The synonyms for “rash” include precipitate, brash, abrupt, hasty, premature, imprudent, uncontrolled, thoughtless, and unthinking. The Random House Thesaurus (College ed. 1984). Actions may be characterized by any one of these terms without necessarily being homicidal or even violent. Only one California case refers to a “homicidal reaction,” and does so in dicta, without focusing on the specific issue raised by this petition. [Footnote 14] In contrast, in People v. Coad, 181 Cal.App.3d 1094, 1107 (1986), the Court of Appeal specifically stated that in deciding the question of adequate provocation, the trier of fact “is not asked to determine that a reasonable person’s responsive act would have been an intentional killing.” (Emphasis in the original.) [Footnote 15] Indeed, if a reasonable person would have reacted by killing, “it would raise serious doubts whether the offense should continue to be punished”. Williams, Provocation and the Reasonable Man, 1954 Crim.L.Rev. (Eng.) 740, 742.
The Court of Appeal’s statement in People v. Coad, supra, that the reasonableness standard does not require a showing that a reasonable person would have killed under the circumstances is supported by the leading commentators on substantive criminal law. See W. LaFave & A. Scott, 2 Substantive Criminal Law, sec. 7.10, at 255-56 (1986) (“What is really meant by ‘reasonable provocation’ is provocation which causes a reasonable man to lose his normal self-control; and, although a reasonable man who has thus lost control over himself would not kill, yet his homicidal reaction to the provocation is at least understandable.”); R. Perkins, Criminal Law 55 (2d ed. 1969) (“If a reasonable man would be strongly moved to kill, the fact that he would be able to control his temper sufficiently to avoid such an extreme measure, whereas [defendant] was unable to do so, does not mean that the circumstance is without the element of mitigation.”); G. Fletcher, Rethinking Criminal Law, sec. 4.2, at 248 (1978) (“The test cannot be whether the average person would have killed under the circumstances, for that test should more plausibly generate a total excuse.”). [Footnote 16]
The district court in this case, in its initial summary of the reasonable person standard of provocation under California law, correctly stated that “the provocation need not drive the reasonable person to actual homicide, for reasonable people presumably do not kill no matter how much they are provoked . . . .” Memorandum and Order 5 [EOR 5]. Inexplicably, however, the district court, later in its opinion, shifted it ground, stating that “in order to prove provocation, petitioner needs to prove that homicidal rage, and not mere anger, would have been the typical reaction.” Id. at 9 [EOR 9] (emphasis added). On the basis of this erroneous statement of California law, the court concluded that even when cultural context is taken into account, “petitioner’s inability to point to any actual homicides strongly suggests that the insult [used by the victim] is not the sort that ordinarily produces homicidal rage” in the average Mexican male. Ibid. It was primarily for this reason that the district court rejected petitioner’s defense of provocation even when a culturally specific standard is applied. Id. at 10 [EOR 10].
B. APPLICATION OF THE PROPER STANDARD OF REASONABLENESS
On appeal from a district court’s denial of a petition for habeas corpus, a de novo standard of review applies. McSherry v. Block, supra, 880 F.2d 1049, 1051-1052. In making an independent examination of the record, the proper inquiry regarding petitioner’s defense of provocation, as the preceding section argues, is not whether the insults uttered by the victim would cause ordinary, Mexican males to kill, but whether the average, reasonable Mexican male would be “liable to act rashly,” People v. Logan, supra, 175 Cal. at 49, in the sense of reacting violently.
The record in this case clearly demonstrates that the verbal provocation which triggered the shooting commonly triggers violent reactions in ordinary, Mexican males. At trial, Dr. Jose La Calle, a forensic psychologist qualified as an expert on Mexican culture and language, testified that the insult in question commonly causes fights to break out among average, reasonable males in Mexico:
“Q [by defense counsel]. Are [the insults] sometimes a common constant theme in violent crimes, something that keeps recurring?
“A. Yes. With Hispanics?
“Q. Yes.
“A. Excuse me. With the Mexicans?
“Q. Yes.
“A. Yes.
“Q. Is that something that you find to be unique to Spanish speakers from Mexico?
“A. Mexico and Central America. You will not find that in Spain or South America.
“Q. And are these the type of words that incite strong emotion?
“A. Almost automatically. I have seen even very educated professionals react angrily and physically aggressive after being, what they call in Mexico mentar la madre, [which] means insult your mother using that type of words.” R.T. 347 [EOR 74] (emphasis added).
Robert Lozano, a Spanish language expert born and raised in Mexico City, testified that while he was unaware of any incidents in which the use of the insult “chinga tu madre” had led to a homicide, R.T. 318 [EOR 57], he was sure that the expression frequently caused Mexican males to react in a violent manner:
“Q [by the prosecutor on cross-examination]. Well, how many times have you seen a fight break out, Mr. Lozano, yourself, personally, or heard about it, because of this phrase being used?
“A. It’s not that I read about it, it is just that I grew up that way and I know that I — I don’t even remember. I might have been in a fight because of that myself. It is something that I just know because I grew up that way. I don’t have any statistics about it, but I know for sure that if I am in a heated argument with somebody, and he says, “You know what, go fuck your mother,” I know that it’s the response for going into physical — from verbal into physical, you know, depending on the intensity of the problem, the circumstances, et cetera, I know for sure.” R.T. 321 [EOR 58B].
The district court minimized the emotive significance of “chinga tu madre” by comparing it to the English phrase “fuck you,” Memorandum and Order 10 [EOR 10], and noting that it can be used in a jocular manner, Order 4 [EOR 16]. Although Robert Lozano testified that English expressions like “fuck you” and “motherfucker” are similar in some respects to “chinga tu madre“, he stated that “it is very difficult to find an exact equivalent.” R.T. 318-319 [EOR 57-58]. In English usage, “fuck you” is merely a stronger form of “damn you” or “to hell with you,” “motherfucker” is “purely fig[urative], never lit[eral].” Wentworth & Flexner, Dictionary of American Slang (2d Supp. Ed. 1975), p. 204. In contrast, “chinga tu madre” has a literal meaning, “like you are giving a command,” R.T. 319 [EOR 58], and signifies a violation, literally a rape of the mother. [Footnote 17] Although, as the district court noted, “chinga tu madre” can sometimes be used in a joking manner when it is used in a conflict situation, as in the instant case, “then it means an attack, an offense,” and commonly provokes violent reactions. R.T. 317-318, 320-321, 347 [EOR 56-57, 58A-58B, 74]. The epithet thus functions as a ritual insult which is calculated to inflame the unlike ritual insults, are not intended to start a fight. It is thus to be distinguished from other fighting words which may have the effect of provo9king violence, but, unlike ritual insults, are not intended to start a fight. [Footnote 18]
The district court treated petitioner’s homicidal reaction to the verbal provocation in this case as if petitioner had killed Mr. P merely because Mr. P had insulted him. This ignored the context in which the inflammatory words were used. As defense counsel strenuously argued at the trial, the train of abusive and insulting expressions, R.T. 345-346, formed part of a larger pattern of aggressive behavior by Mr. P calculated to provoke a violent reaction from petitioner, which would then serve as a pretext for beating him. [Footnote 19] See R.T. 294-295 [EOR 48-49]; 343-348 [EOR 70-75]. The two friends quarreled for what seemed to petitioner about 10 minutes, R.T. 347 [EOR 74], and Mr. P taunted petitioner with insults related to his mother [Footnote 20] and challenged him to a brawl: “[W]e’re gonna have a fight about this, we’re gonna get to the mother,” Mr. P said. R.T. 298 [EOR 50]. [Footnote 21]
As petitioner’s friend with whom he came to Sonoma County from Mexico, R.T. 70, 81 [EOR 26, 30], Mr. P must have known of petitioner’s aversion to fighting. See R.T. 337 [EOR 64]. Yet, he persisted in escalating the confrontation, daring petitioner “to fight, fight with clean hands,” R.T. 87 [EOR 36], continuing to curse and threaten him. “Give me the money back or I’m going to kill you,” Mr. P insisted. R.T. 344 [EOR 71]. The last straw was when Mr. P said, “Give me the money, hijo chinga la madre,” and started walking toward petitioner. R.T. 348 [EOR 75]. It was at this point that petitioner grabbed a gun from his waistband under his shirt, and shot Mr. P. R.T. 348, 350-351 [EOR 75, 77-88].
The shooting, then, was not simply retaliation against Mr. P for using offensive language. It was a response to ritual insults calculated to provoke a violent reaction that could then be used by Mr. P as a pretext for beating and robbing petitioner in his home. [Footnote 22] An independent examination of the record thus supports the conclusion that the provocation in this case satisfied California’s reasonableness standard when cultural background is taken into consideration. The burden of proof on the issue of adequate provocation is on the prosecution to prove beyond a reasonable doubt that under the circumstances in which they were used in this case, the words hurled at petitioner by the victim would not trigger a violent reaction in an ordinary, reasonable Mexican male. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 1892, 44 L.Ed.2d 508, 522 (1975); People v. Valentine, supra, 28 Cal.2d 121, 132-134 (error to instruct jury that burden of showing adequate provocation is on defendant). Because the prosecution clearly failed to satisfy this burden of proof, the district court erred in concluding that “petitioner’s defense of provocation [is] deficient even when cultural context is taken into account.” Memorandum and Order 10 [EOR 10]. Accordingly, this court should decide the equal protection component of petitioner’s claim.
C. PROVOCATION AND THE “HYPERSENSITIVE” INDIVIDUAL
To buttress its conclusion that petitioner’s defense of provocation was deficient even when his cultural background was taken into account, the district court found that petitioner “is not a person of ordinary sensitivity.” Memorandum and Order 10 [EOR 10]. In making that finding of hypersensitivity, the court relied on testimony at the trial that petitioner is a “very passive, quiet and obedient individual,” and that at the time of the shooting, he felt “vulnerable” living in a ranch house alone. Ibid.
The record does indeed support the conclusion that petitioner is a very passive, quiet person. Mr. W, petitioner’s employer and owner of the ranch where petitioner lived and worked, described him as “peaceful, real quiet,” and that as far as Mr. W was aware, petitioner had never been involved in any fights or verbal altercations. R.T. 150 [EOR 38]. Petitioner’s older brother, Mr. J, testified that he had never known him to get into a fight or have any problems getting along with people, R.T. 84, 291 [EOR 33, 47], and referred to petitioner as a “noble” person, R.T. 84 [EOR 33]. [Footnote 23] It is ironic, then, that these qualities of non-aggressiveness and good moral character were used in this case to buttress the conclusion that petitioner was more likely to lose his temper and act in an aggressive manner than the average Mexican male. Such qualities normally work in favor of, not against, a defendant invoking the provocation defense. See People v. Bridgehouse, 47 C.2d 406 (1956) (citing defendant’s “reputation for peace and quiet” and “excellent character” as factors justifying a finding of adequate provocation.)
The policy against allowing “hypersensitive” individuals to claim the defense of provocation is aimed at individuals who are more sensitive than the average person in the sense that they are more likely to react with violence than the average person. Without such a policy, bad-tempered individuals could use their hypersensitivity to mitigate their tendency to act as loose cannons. See, e.g., People v. Rich, 45 Cal.3d 1036, 1111 (1988) (defendant’s “explosive” personality does not warrant instruction on adequate provocation because the defense is determined by an objective standard); G. Fletcher, supra, sec. 4.2, at 249 (Royal Commission adhered to a reasonableness standard despite criticism because otherwise “a bad-tempered man should . . . receive special consideration under the law.”)
The California Supreme Court has formulated the policy against allowing “hypersensitive” individuals to invoke the provocation defense in language that makes clear its relationship to the standard of the ordinarily reasonable person:
“The jury is further to be admonished and advised by the court that this heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts circumstances, and that, consequently, no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man. . . . Thus, no man of extreme violent passions could so justify or excuse himself if the exciting cause be not adequate, nor could an excessively cowardly man justify himself unless the circumstances were such as to arouse the fears of the ordinarily courageous man.” People v. Logan, supra, 175 Cal. 45, 48 (1917), quoted in part with approval in People v. Berry, 18 Cal.3d 509, 515 (1976).
The policy precluding particularly sensitive or irrational individuals from claiming the provocation defense is thus not a separate legal standard, but merely another way of stating the objective standard of reasonableness. See State v. Hunt, 558 A.2d 1259, 1279 (N.J. 1989) (“The relevant inquiry . . . is not whether the defendant was more susceptible than another to provocation, but whether a reasonable person would have been provoked under the circumstances.”); Hart v. United States, 130 F.2d 456, 458 (D.C. Cir. 1942) (objective of standard of reasonableness prevents the law from becoming “the refuge for ill-tempered, irresponsible citizens”).
Thus, an accused is “hypersensitive” within the meaning of the California law of provocation when the average, reasonable person would not react in a violent or otherwise rash manner to the provocative event that caused the accused to lose control. See discussion of standard of reasonableness in Section IV.A., supra, 28-33. Insofar as the record in this case establishes that the average, reasonable Mexican male would react in a violent manner to the insults in questions, see Section IV.C, supra, at 34-39, petitioner cannot, as a matter of law, be characterized as “hypersensitive.” The fact that petitioner responded with homicidal rather than non-homicidal violence makes him guilty of criminal homicide, but because a reasonable Mexican male of average disposition would be “liable to act rashly,” People v. Logan, supra, 175 Cal. at 49, that is, violently, petitioner was guilty only of manslaughter, not murder.
An independent examination of the record establishes that when the proper state standard of reasonableness is applied, petitioner’s provocation defense is sufficient to mitigate the charge of murder to manslaughter. The district court’s conclusion that “petitioner’s defense of provocation [is] deficient even when cultural context is taken into account,” Memorandum and Order 10 [EOR 10], is therefore erroneous. Consequently, this court should determine the merits of the equal protection issue presented by the habeas petition.
V.
ASSUMING, ARGUENDO, THAT THE TRIAL COURT FULLY CONSIDERED
PETITIONER’S CULTURAL BACKGROUND, THE COURT’S FINDING
THAT PETITIONER WAS “HYPERSENSITIVE” DOES NOT
PRECLUDE HABEAS REVIEW OF PETITIONER’S EQUAL
PROTECTION CLAIM
The assertion that petitioner is more “sensitive” than the average, reasonable Mexican male was used by both the state trial court, C.T. 133 [EOR 21, and the appellate court, Opinion 9-10 [EOR 99-100], to support the conclusion that the provocation in this case did not satisfy even a culturally specific standard of provocation. However, the trial court’s finding with respect to petitioner’s “hypersensitivity” was rejected by the district court on the ground that the trial court had not fully considered appellant’s cultural background. Memorandum and Order 7 [EOR 7]. This part of the district court decision, petitioner submits, should be affirmed for the reasons stated in Section II, supra, at 16-23.
Even if it is assumed, however, that the trial court fully considered petitioner’s cultural background, the court’s finding regarding “hypersensitivity” is subject to plenary habeas review. When a state court has fully considered a federal constitutional claim and applied the putative constitutional standard to the facts, the state court’s finding on this federal constitutional question of law and fact remains subject to an independent determination by a federal habeas court. See Miller v. Fenton, supra, 474 U.S. at 112; see also McSherry v. Block, supra, 880 F.2d at 1053 (federal courts not bound by state constructions of state law when addressing “the constitutional effect of that construction.”). The trial court’s finding regarding petitioner’s hypersensitivity was equivalent to a finding that petitioner failed to satisfy the standard of reasonable provocation, even when cultural context is considered. See Section IV.C., supra, at 40-43. A finding with regard to reasonable provocation, like a finding as to the voluntariness of a confession, is a mixed question of law and fact and therefore subject to de novo review. See Miller v. Fenton, supra, 474 U.S. 104.
Because an accused is more likely to be characterized as “hypersensitive” when claiming that his cultural background should be taken into account, thereby prejudicing his constitutional claim that he is entitled to be judged by a culturally-specific standard of provocation, federal appeals courts should be especially vigilant in reviewing state court findings of “hypersensitivity.” In a brief statement denying petitioner’s post-judgment motion to reduce the conviction of second-degree murder to manslaughter, the trial judge stated, “It may be that the defendant himself is a more sensitive — individual sensitive — young man . . . more sensitive than someone else of his culture.” C.T. 133 [EOR 21]. To support this conclusion, the trial judge noted with respect to the epithet chinga tu madre that “[t]here is evidence in the case that even within that [Mexican] culture — it’s a street epithet that doesn’t always lead to violence.” Ibid. (Emphasis added.) The California standard of reasonable provocation, however, does not require that the average, reasonable person always act in a rash manner. The standard is satisfied if a reasonable person is “liable to act rashly or without due deliberation and reflection.” People v. Logan, supra, 175 Cal. at 49. (Emphasis added.) What this means is that the average reasonable person would be “subject” to or “disposed” toward acting in a rash manner. Webster’s New Twentieth Century Dictionary (1953 ed.) 982. “Liable indicates the possibility of an unpleasant event; as, one is liable to fall even though not likely.” Ibid. (Emphasis in original). Even if liable is construed to mean likely, the expert testimony in this case clearly established that chinga tu madre, when used in the kind of conflict situation involved in this case, commonly triggers violent reactions among Mexican males. R.T. 320-321, 347 [EOR 58A-58B, 74]. The trial judge’s finding that petitioner is more sensitive than the average Mexican male is therefore not fairly supported by the record. 28 U.S.C. sec. 2254(d)(8).
The trial judge also stated with respect to petitioner’s sensitivity that there was no evidence that this “epithet that was used is something that anybody from Mexican culture would go and shoot somebody.” C.T. 133 [EOR 21]. [Footnote 24] However, as petitioner has previously argued, California law on adequate provocation requires only a showing that a reasonable person is liable to have acted in a violent or otherwise rash manner, not that he is liable to have killed. See Section IV.A, supra, at 28-33. The trial judge’s reference to the absence of proof of homicides as evidence of petitioner’s more-than-average sensitivity constituted a discriminatory application of the California law of provocation by imposing a higher standard of reasonable provocation on the petitioner than would have been required in a case in which the accused did not ask that his cultural background be taken into account. Thus, the trial court, while purporting, as an after-thought, to apply a culturally specific standard of provocation, actually applied it in a discriminatory manner.
An independent examination of the record establishes that when a culturally specific standard of reasonable provocation is fairly applied to petitioner’s conduct, his provocation defense is sufficient to mitigate his murder conviction to manslaughter. See Section IV.B., supra, at 34-39. Thus, even if the trial judge could be said to have considered petitioner’s cultural background, his discriminatory application of the reasonableness standard to petitioner was itself a violation of the Equal Protection Clause and therefore requires that this court decide the equal protection issue raised by petitioner’s claim.
VI.
EQUAL TREATMENT OF ETHNICALLY DIVERSE PERSONS REQUIRES THAT IF
CERTAIN VERBAL PROVOCATION IS SUFFICIENTLY INFLAMMATORY IN
MAINSTREAM AMERICAN CULTURE TO REDUCE MURDER TO MANSLAUGHTER,
VERBAL PROVOCATION THAT IS EQUALLY INFLAMMATORY IN
PETITIONER’S CULTURE SHOULD BE TREATED AS EQUALLY MITIGATING
It is important to make clear at the outset what petitioner does not argue is required by the Equal Protection Clause. It is not petitioner’s contention that a killing committed by an accused who came to the United States from another country should be subject to mitigation from murder to manslaughter if a reasonable person in the accused’s native culture would have killed. It is, perhaps, this misunderstanding of the nature of petitioner’s equal protection claim that led the district court to reject his defense of adequate provocation on the ground that a reasonable Mexican male would not have killed under the circumstances. Memorandum and Order 9-10 [EOR 9-10]. Such a standard would subvert the very idea of the criminal law as a vehicle for societal condemnation. In our society, it is unacceptable for an accused to argue that his killing his sister was mitigated on the ground that she was sexually promiscuous, even though a reason─ able person in his native culture would have killed his sister under such circumstances. See G. Fletcher, Rethinking Criminal Law, supra, sec. 4.2, at 243. This understanding represents the law of criminal homicide in every jurisdiction in the United States and no claim is made that a different view is mandated by the requirements of the Equal Protection Clause of the Fourteenth Amendment.
Petitioner instead urges this court to adopt a more narrow and modest view of the constitutional relevance of cultural difference to the sufficiency of a provocation defense. The principle which petitioner urges this court to adopt is that equal treatment of ethnically diverse persons requires that if certain verbal provocation is sufficient in mainstream American culture to reduce murder to manslaughter, then verbal provocation that is equally provocative in a criminal defendant’s own culture should be treated as equally mitigating. Such a constitutional principle permits cultural background to be taken into account only when the provocation that triggered a defendant’s homicidal reaction falls within the class of provocative conduct that is recognized as sufficient under American law to reduce murder to manslaughter.
California is one of the few jurisdictions in the United States which recognize that words alone are sufficient to establish adequate provocation. W. LaFave and A. Scott, 2 Substantive Criminal Law, sec. 710(6), at 260 and nn. 56-57 (1986). In most of these jurisdictions, the requisite words are informational in the sense that they communicate facts such as adultery which, if observed by the defendant, would constitute adequate provocation. Ibid. Under California law, however, insulting or abusive words will suffice. People v. Valentine, supra, 28 Cal.2d 121, 132 (1946); People v. Berry, supra, 18 Cal.3d 509, 515 (1976). The sum and substance of petitioner’s equal protection claim is this: if there are certain fighting words that are sufficiently provocative in mainstream American culture to reduce murder to manslaughter, then fighting words that are equally provocative in petitioner’s culture should be treated as equally mitigating. If, therefore, under California law, verbal provocation that would cause a violent reaction in the average, reasonable American man is sufficient to mitigate murder to manslaughter, then provocative words that would cause the average, reasonable Mexican man to react with violence should also constitute adequate provocation.
A. EQUAL PROTECTION, CULTURAL BACKGROUND AND LANGUAGE
When a person invoking the defense of adequate provocation shares the standard English usage and slang expressions of the dominant culture in the United States, the cultural context in which derogatory words are understood by the accused is routinely, although rarely consciously, taken into consideration by a judge or jury in assessing the reasonableness of the accused’s reaction to the offending language. [Footnote 25] When the accused is a member of an ethnic minority, principles of fairness and equality demand that the trier of fact take into account the accused’s ethnic background for the purpose of evaluating the gravity of the affront that the provocation had on the accused as a result of his cultural upbringing. The failure of the trial court to consider the petitioner’s cultural background in determining the reasonableness of his reaction to the victim’s insults in this case amounts to discrimination based on national origin and ethnic characteristics.
Classifications on the basis of national origin or ethnic characteristics require strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment. See, e.g., Hernandez v. Texas, 347 U.S. 475, 479, 74 S.Ct. 667, 98 L.Ed. 866 (1954) (equal protection challenge may be maintained where “persons of Mexican descent constitute a separate class in . . . [the community] distinct from ‘whites’.”); Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977). Under federal anti-discrimination law, national origin discrimination includes not only discriminatory treatment because of an individual’s or ancestor’s place of origin, but “because an individual has the physical, cultural, or linguistic characteristics of a national origin group.” Saint Francis College v. Al-Khazraji, 481 U.S. 604, 614, 107 S.Ct. 202, 95 L.Ed.2d 582 (1985) (Brennan, J., concurring, quoting from 29 C.F.R. sec. 1606.1; see also Gutierrez v. Mun. Ct. of S.E. Judicial Dist., 838 F.2d 1031, 1038-1039 (9th Cir. 1988), vacated as moot, 109 S.Ct. 1736 (1989) (discussing relationships between language, culture, and national origin discrimination under Title VII, 42 U.S.C. sec. 2000e-2).
Various reasons have been articulated for the application of a standard of strict scrutiny in cases of discrimination on the basis of race or membership in a particular ethnic group. Foremost among these is the “political powerlessness” theme first articulated by Justice Harlan Fiske Stone in his famous footnote four in United States v. Carolene Products, 304 U.S. 144, 152, n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938): “[P]rejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”
Another factor that has made race and ethnicity “suspect” is that such classifications “are more likely than others to reflect deep-seated prejudice”, Plyler v. Doe, 457 U.S. 202, 216 n. 4, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). The pervasiveness of stereotypes of Latinos, particularly in the American mass media, has been thoroughly documented. See Greenberg, Burgoon, Burgoon & Korzenny, Mexican American and the Mass Media 45-52 (1983); Christian & Christian, Spanish Language and Culture in the Southwest, in Language Loyalty in the United States 48. Fishman, ed. 1966).
An additional reason for heightened scrutiny in these cases, and perhaps the one most pertinent to the issue of impaired self-control presented by the instant case, is that race and ethnic status are unalterable. “[T]here is a marked difference between a status or condition such as illegitimacy, national origin or race, which cannot be altered by an individual, and the ‘status’ of [other victims of discrimination].” Sugerman v. Dougall, 413 U.S. 634, 657, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973) (Rehnquist, J., dissenting).
With respect to the issue of verbal provocation, leading authorities on linguistic theory emphasize the extent to which the emotive and cognitive meaning of words are among the aspects of human experience that are least susceptible to individual control. “Human beings . . . are very much at the mercy of the particular language which has become the medium of expression for their society.” E. Sapir, Language, Culture and Personality: Selected Writings 162 (D. Mandelbaum, ed., 1951); see also B. Whorf, Language, Thought and Reality 214 (1940).
The pioneering work of Edward Sapir and Benjamin Whorf in linguistic theory established the foundation for the now widely held view among social scientists that language is not merely a technique of communication, but is a symbolic system deeply embedded in a cultural matrix. [Footnote 26] In a study of Hispanic-Americans, four sociologists describe the strong relationship that exists between Hispanic-American culture, language and world view. According to the authors, “the nature of Hispanic-American culture is embedded in the Spanish language; language and culture together form a basic, irreducible orientation of Hispanic-Americans to the external world.” Greenberg, Burgoon, Burgoon & Korzenny, Mexican Americans and the Mass Media 42 (1983).
Using modern linguistic theory and cultural anthropology to examine the nature of insult behavior, Professor Charles Flynn explains how the reaction of an individual to a particular insult will depend upon the cultural framework in which the offending language is used:
“One of the most important characteristics of insult is not only that it is a type of interaction, but that it is never dependent wholly upon the manifest content of a communication. . . . Thus, the definition of an act or remark as insulting is always dependent upon the shared sets of cultural meanings of the interactants, what ethno-methodologists term “shared conceptions of reality.” Flynn, Insult and Society: Patterns of Comparative Interaction 8-9 (1977) (emphasis added).
In Gutierrez v. Municipal Court, supra, 838 F.2d 103, vacated as moot, 109 S. Ct. 1736 (1989), this court addressed the critical relationship between language, culture, and discrimination on the basis of national origin:
“Commentators generally agree . . . that language is an important aspect of national origin. The cultural identity of certain minority groups is tied to the use of their primary tongue . . . . Although an individual may learn English and become assimilated into American society, his primary language remains an important link to his ethnic culture and identity. The primary language not only conveys certain concepts, but is itself an affirmation of that culture.” Id. at 1039 (citations omitted).
B. EQUAL PROTECTION AND VERBAL PROVOCATION
The trial court considered petitioner’s cultural background in determining that the subjective element of the provocation defense was satisfied and that petitioner had in fact been aroused to anger “because of his culture.” R.T. 467 [EOR 83A]; R.T. 473 [EOR 86]. However, insofar as the trial judge regarded himself as bound by California case law to exclude cultural context in determining the reasonableness of the provocation, R.T. 473-477 [EOR 86-89A], he denied petitioner’s rights under the Equal Protection Clause.
The Equal Protection Clause of the 14th Amendment requires that “all persons similarly circumstanced shall be treated alike.” Plyler v. Doe, supra, 457 U.S. 202, 216; F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989 (1920); see generally Tussman & Tenbroek, The Equal Protection of the Laws, 37 Cal.L.Rev. 341, 344 (1949). The concept of equal protection, as applied to the criminal law of adequate provocation compels recognition of the principle that similar reactions to similarly provocative insults be similarly treated, without regard to their ethnic origin or cultural derivation. If certain verbal provocation is sufficiently offensive in mainstream American culture to mitigate murder to manslaughter, see People v. Valentine, supra, 28 Cal.2d 121, 130, then insults that are equally provocative in petitioner’s culture should be treated as equally mitigating.
The long-standing resistance of courts to consider cultural factors in applying various doctrines of excuse and justification in the criminal law is largely attributable to the widespread misunderstanding that exists concerning the concept of cultural relativity. Courts in California, as well as other jurisdictions, have expressed the compelling state interest in maintaining norms of behavior that will not allow a defendant to “set up his own standard of conduct.” People v. Wickersham, 32 Cal.3d 307, 326 (1982), quoting People v. Valentine, supra, 28 Cal.2d at 139. The concern is that following the dictates of one’s culture should not be permitted to override the duty to obey the law.
However, introducing a proper understanding of the concept of cultural relativity into the law of provocation does not mean that conduct acceptable by the standards of the defendant’s culture is to be regarded as acceptable in American culture when such conduct violates established legal standards of social behavior. As one eminent anthropologist has expressed it, a proper cross-cultural analysis requires that “in every instance the formulae must be worked out that will enable scientists to equate event A2 in culture A1 with event B2 in culture B1.” E. Hall, The Silent Language (1973), p. 192. Extrapolating from this formulation and expressing it as a function of the constitutional standard of equality which requires that “all persons similarly circumstanced shall be treated alike” Plyler v. Doe, supra, 457 U.S. 202 at p. 216, the appropriate cross-cultural standard, as it applies to the doctrine of adequate provocation, may be stated as follows:
If the statement “p,” when directed to A in the context of mainstream American culture, is sufficient to constitute adequate provocation when judged by American standards of reasonableness, and the statement “q,” when directed to B in the context of another culture, is as inflammatory as the statement “p,” then A and B are similarly situated with respect to the reasonableness of their loss of self-control, and should be similarly treated.
Simply stated, if there are certain words that are sufficiently provocative in mainstream American culture to reduce murder to manslaughter, then words that are equally provocative in another culture should be treated as equally mitigating. If, under California law, fighting words that would cause a violent reaction in the average, reasonable American man are sufficient to mitigate murder to manslaughter, then fighting words that would cause the average, reasonable Mexican man to react with violence should constitute adequate provocation. [Footnote 27]
Such a constitutional standard of cross-cultural equality, far from making the standard of the reasonable person any less objective, simply makes the standard as fair and free of prejudice when applied to individuals of diverse ethnic backgrounds as it is when applied to individuals who share the social symbols of the dominant culture.
The critical importance of considering a person’s racial or ethnic background in evaluating the reasonableness of his or her reaction to insulting and abusive language can be illustrated by considering the current effort in American society to address the problems generated by the use of racial, religious, and sexual epithets. [Footnote 28] The abusive and hurtful nature of racial and ethnic slurs or sexual comments, or the menacing nature of symbolic acts such as burning a cross or displaying the Nazi swastika, would be unintelligible without understanding their impact from the victim’s perspective. As this court has observed in adopting a “reasonable woman” standard for determining whether a prima facie case of sexual harassment has been stated under Title VII of the Civil Rights Act of 1964, “We adopt the perspective of a reasonable woman primarily because we believe that a sex-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women.” Ellison v. Brady, 924 F.2d 872, 879 (9 Cir. 1991). See also Jordan v. Gardner, F.2d , , 93 C.D.O.S. 1285, 1287 (9 Cir. [Feb. 25] 1993) (considering expert testimony on anthropology and psychology to support gender-specific standard of “pain” in evaluating Eighth Amendment claim that cross-gender clothed body searches violates civil rights of female inmates); State v. Wanrow, 88 Wash.2d 221, 239-241, 599 P.2d 548, 558-559 (1977) (requiring a woman’s claim of self-defense in a murder prosecution to be considered “in light of her own perceptions of the situation, including those perceptions which were the product of our nation’s long and unfortunate history of sex discrimination.'”).
A culturally specific standard of verbal provocation in prosecutions for criminal homicides would not create a preferential standard of conduct for persons of ethnically diverse cultural backgrounds. Cf. Ellison v. Brady, supra, 924 F.2d at 879 (“The reasonable woman standard does not establish a higher level of protection for women than men.”). Instead, the principle advocated here would place all fighting words on an equal footing in a jurisdiction that recognizes verbal provocation as sufficient grounds for mitigating murder to manslaughter.
If our legal system is to maintain its commitment to equal protection of the laws and fundamental fairness in the administration of justice, it is essential that persons of diverse cultural backgrounds be afforded the opportunity to have their reactions to provocative language judged by the same determinants of social reality that implicitly govern the standard of reasonableness that is applied to persons who share the language community of mainstream American culture.
The defense of adequate provocation has its source in the claims that the frailty of human nature makes upon our “empathy and compassion.” People v. Coad, supra, 181 Cal.App.3d at 1107. The empathy felt by the trial judge for what he described as the “tragedy” in which this 19-year-old defendant found himself is reflected in the record. See R.T. 474, 476 [EOR 87-89]; C.T. 134 [EOR 22] (“This Court is not happy making this finding.”). The tragedy in this case is that it was not equally reflected in the lower courts’ application of the law.
At the core of our constitutional system of criminal justice there reside basic principles of equitable treatment that elevate fundamental fairness and human compassion to the level of a constitutional value. In light of those principles, and for the reasons set forth above, the Equal Protection Clause of the Fourteenth Amendment should be interpreted to require the trier of fact to consider the cultural background of petitioner in determining the reasonableness of his reaction to verbal provocation. Insofar as an independent examination of the record shows that petitioner was prejudiced by the failure of the trial judge to apply such a standard to his provocation defense, petitioner’s conviction for second-degree murder denied him the equal protection of the laws in violation of the Fourteenth Amendment.
9TH CIRCUIT BRIEF FOOTNOTES [13-28]:
Footnote 13: The relevant paragraph of the instruction reads as follows: “The question to be answered is whether or inot, at the time of the killing, the reason of the accused was obscured or distrubed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather that from judgment.” California Jury Instructions, Criminal (5th Ed. 1988) [CALJIC] No. 8.42.
Footnote 14: In People v. Ogen, 168 Cal.App.3d 611, 621-622 (1985) The court spoke of “homicidal reaction,” but a careful reading of the opinion makes it clear that (1) the Court of Appeal did not focus on the precise issue presented by this appeal; (2) its statements regarding the requirement of a “killing” or “homicidal reaction” are dicta; and (3) the statements regarding the necessity of a homicidal reaction are contradicted by later statements in the opinion which indicate that it is enough to show that the provocation would trigger “violent reactions in a reasonable person,” and that those violent reactions need not be homicidal reactions.
In summarizing the defense of adequate provocation, the Court of Appeal looked to People v. Valentine (1946) 28 Cal.2d 121, 138-144 [169 P.2d 1], to the common law, and to the legislative history of Penal Code section 192 to conclude that the reasonable person test must be construed “to allow a defendant to reduce a killing from murder to manslaughter only in those situations where the provocation would trigger a homicidal reaction in a reasonable person. People v. Ogen, supra, 168 Cal.App.3d at 621-622 (emphasis added). The focus of the court’s reasoning, however, is directed toward establishing the necessity fro a test of reasonableness, not the necessity for showing that the provocation would trigger a homicidal reaction in a reasonable person. See id. At 621 (“[Ogen] contends even if he reacts with unreasonable sensitivity to minimal provocation which would not trigger homicidal reactions in reasonable persons, he should not be found guilty of murder.” (Emphasis added.)
Moreover, in its concluding passage, the Court of Appeal shifts from its apparently inadvertent reference to “homicidal reactions” in reasonable persons and states that the provocation defense man be invoked in “cases where the circumstances are sufficiently provocative to trigger violent reactions in a reasonable person.” Id. at 622 (emphasis added). That “violent reactions” are not used synonymously with “homicidal reactions” is clear form the court’s reference in the same paragraph to racial and ethnic slurs that trigger “violent reactions and occasionally killings.” Ibid. (Emphasis added.)
Footnote 15: The state Court of Appeal in the instant case assumed, arguendo, that the objective standard of provocation is as petitioner states it. Opinion at 11 [EOR 101] and n.9 (quoting from LaFave & Scott, Handbook on Criminal Law 573 (1972), quoted in Appellant’s Supplemental Brief [in state appeal] at 25-26.)
Footnote 16: If this court accepts petitioner’s argument, aset forth in Section III, supra, at 23-27, that a rule of “automatic reversal” should govern the disposition of this case, it would not be necessary to decide this an other issues regarding the California law of provocation.
Footnote 17: See Octavio Paz, The Labyrinth of Solitude 76-77 (1985) (ultimate meaning of chingar denotes “violence, an emergence from oneself to penetrate another by force . . . to injure, to lacerate, to violate – bodies, souls, objects – and to destroy.”) (discusse by Robert Lozano at R.T. 316 [EOR 55].) The incest taboo is particularly strong in Latin American countries, and in Mexican culture in particular, where there is a strong identification of the mother with the Virgin Mary. See Gallegos y Chaves, The Northern New Mexican Woman: A Challenging Silhouette, in the Chicanos: As We See Ourselves 67, 75 (A. Rejo, ed., 1982); Browner & Lewin, Female Altruism Reconsidered: The Virgin May as Economic Woman, 9 American Ethologist 61, 62 (1982). The epithet “chinga tu madre” thus has a blasphemous connotation as well as an obscene one. For young males especially, a symbolic violation of the incest taboo in a culture that exalts the mother as the object of religious veneration, is tantamount to a physical assault and challenges the individual at the most elemental level of self-respect and personal dignity.
Footnote 18: On the role of ritual as a character contest to test “the recipient’s honor, that is, his readiness regardless of price to uphold the codes by which he lives, see E. Goffman, Interaction Ritual (1967), p. 254. See also Lobov, Rules for Ritual Insults, in Studies in Social interaction (D. Sudnow, ed., (1972); Horowitz & Schwartz, Honor, Normative Ambiguity and Gang Violence, 30 Am. Soc. Rev. 238 (1974) (describing the use of verbal provocation to initiate violence among teenage gang members in an inner city, Mexican-American community).
Footnote 19: It is significant that the law of adequate provocation derives from the common law concepts of chance medly and sudden quarrel, which presupposed that the victim was at fault in initiating the confrontation. See G. Fletcher, supra, sec. 4.2, at 246 n. 16. On the significance of the victim’s culpability as the instigator of the conflict, see Ashworth, The Doctrine of Provocation, 35 Camb. L.J. (Eng.) 292, 307-309 (1976) (“[T]he claim implicit in partial justification is that an individual is to some extent morally justified in making a punitive return against someone who intentionally causes him serious offense, and that this serves to differentiate someone who is provoked to lose his self-control and kill from the unprovoked killer.” (Emphasis in original.)
Footnote 20: See footnote 5, supra at 7.
Footnote 21: To “get to the mother” or mentar la madre means insulting anothers mother using insults like chinga tu madre. See R.T. 347.
Footnote 22: Viewed in this light, petitioner’s use of deadly force not only laced the malice necessary to constitute murder because adequately provoked; it may have been justifiable homicide without regard to cultural context. Cal. Penal Code section 197 provide, in relevant part:
“Homicide is also justifiable when committed by any person in any of the following cases:
“(1) When resisting any attempt . . . to commit a felony, or to do some great bodily injury upon any person; or
“(2) When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony . . . “
The seriousness of Mr. P’s threats could well have brought this case within section 179, even taking into consideration the case-law caveat that the felony the defendant is resisting must be one which involves the threat of death or great bodily injury. People v. Cabellos, 12 Cal.3d 470, 478-479 (1974); People v. Quesada, 113 Ca.App.3d 533, 538-539 (1980); ; People v. Piorkowski, 41 Cal.App.3d 324, 330 (1974).
Footnote 23: If, as the district court said, Memorandum and Order 10, petitioner felt “vulnerable” living alone in the house on Mr. W’s ranch, it was because his brother Mr. J and his family had been robbed and severely beaten in the same house earlier in the year. R.T. 81-82 [EOR 30-31]. When Mr. J moved out with his wife and children, petitioner moved into the house and bught a gun for his protection. R.T. 84-85 [EOR 33-34]. It was this gun which petitioner later used to kill the victim. R.T. 65 [EOR 25].
Footnote 24: A similar comment was made by the trial judge after finding petitioner guilty of second-degree murder. See. R.T. 475 [EOR 88] (referring to evidence in the record that the insult “doesn’t always lead to a homicide” as proof of petitioner’s hypersensitivity).
Footnote 25: The unconscious character of many linguistic phenomena, and the extent to which the assumptions that underlie the understanding of a particular communicaiton are “covert” in the sense that they rest on common sense, largely unspoken, taken-for-granted premises, is well documented. See C. Flynn, Insult and Society: Patterns of Comparative Interaction 5 (1977); E. Sapir, The Unconscious Patterning of Behavior in Society, in Language, Culture and Society 32-45 (Blount, ed., 1974); E. Hall, The Silent Language 62-63 (1973) (distinguishing between “explicit” and “implicit” culture).
As a matter of law, the fact that ethnic or racial bias may be unconscious or covert makes it no less subject to jusicial scrutiny. See Batson v. Kentucky, supra, 106 S.Ct. 1712, 1728 (Marshall, J., concurring) (discussing the effect of “a judge’s own conscious or unconscious racism” as leading him to accept certain explanations that “would not have come to his mind if a white [person] had acted identically.”)
Footnote 26: Sapir, Language, Culture and Personality: Selected Writings (D. Mandelbaum, ed. 1951) 162-66; Whorf, Language, Thought and Reality, supra; Whorf, Collected Papers in Metalinguistics (1952); see generally B. Blount, ed., Language, Culture and Society (1974); see also L. Wittgenstein, The Blue and Brown Books: Preliminary Studies for the “Philosophical Investigations” 134 (1958) (“a language . . . means . . . a culture”); F. Fanon, Black Skins, White Masks 17 (C. Markmann transl. 1967) (“To speak . . . means above all to assume a culture”).
Footnote 27: The testimony supporting the conclusion that the fighting words “chinga tu madre” triggers violent reactions in the average, reasonable Mexican male is set out supra at 34-35.
Footnote 28: Compare the British approach to the issue of adequate provocation in Director of Public Prosecutions v. Camplin, 2 All E.R. 168, (House of Lords 1978) (opinion of Lord Justice Simon) (“‘Dirty nigger’ would probably mean little if said to a white man or even if said by one coloured man to another, but is obviously more insulting when said by a white man to a coloured man.”).