Opinion Bank # O-193 Hate Crimes: Defense Theory That Defendant Did Not Personally Harbor The Required Mental State
NOTE: The text of the footnotes appears at the end of the document.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
THE PEOPLE, 3 Crim. C016870
Plaintiff and Respondent, (San Joaquin Super. Ct.
No. SC05S580A)
v.
BUENAVENTURA ALBARO WILSON,
Defendant and Appellant.
________________________________________/
A jury found defendant Buenaventura Wilson guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), [Footnote 1] oral copulation in concert (§ 288a subd. (d)), false imprisonment (§ 236, subd. (a)(1)), and use of force or the threat of force to prevent a victim from reporting a crime (§ 136.1, subd. (c)). The jury also found true the allegations that defendant committed the assault because of the victim’s race or color (§ 422.75, subd. (a)), and that defendant personally used a deadly weapon (§ 12022, subd. (b)) and personally inflicted great bodily injury (§ 12022.7) in the commission of the crimes of assault with a deadly weapon and oral copulation in concert. He was sentenced to an aggregate term of 20 years in prison.
On appeal, defendant contends the trial court committed various instructional and sentencing errors. We shall reverse the hate-crime enhancement due to instructional error, and shall remand the matter for resentencing.
FACTS
In the main, the facts of the underlying criminal offenses were not disputed at trial; consequently, we do not recite them in detail. Suffice it to say that defendant beat Channing Green, a 21-year-old Black acquaintance, with his fists; “head-butted” him; kicked him; burned his chest with a lit cigarette; choked him; placed a noose around his neck; forced him to eat a raw egg and dirt; placed him in the trunk of a car and drove to two other locations where Green was forced to disrobe; beat him with a baseball bat while he was beaten by others with a dog chain; forced him to orally copulate defendant; and threatened him with death if he went to the police. During this two-hour ordeal, defendant and others repeatedly called the victim “nigger” and used other racial epithets.
DISCUSSION.
I
The information alleged that defendant committed the crimes of torture, kidnapping, assault with a deadly weapon, and forcible oral copulation “because of the victim’s race, color, nationality or country of origin” in violation of section 422.75, often called the “hate-crime” enhancement statute. [Footnote 2] As to the crimes of torture and oral copulation, defendant was charged with violating section 422.75, subdivision (b), which requires that he also have “voluntarily acted in concert with another person either personally or by aiding and abetting another person.” As to the crimes of kidnapping and assault with a deadly weapon, defendant was charged with violating section 422.75, subdivision (a), which contains no requirement that defendant have acted in concert with others.
The trial judge used a modified version of CALJIC No. 9.95 to instruct the jury on the hate-crime enhancements. This instruction, intended for use in connection with alleged violations of section 422.7, [Footnote 3] stated: “Defendant is accused in Counts One, Two, Three and Four of having violated Section 422.75 of the Penal Code, a crime. [¶] Every person who commits the crime of torture, or assault with a deadly weapon, or with force likely to produce great bodily injury, or kidnapping, or forcible oral copulation against the person of another, for the purpose of intimidating or interfering with the other person’s free exercise or enjoyment of any right secured to him by the Constitution or laws of California, or the United States, and because of the person’s race or color, ancestry or national origin, and the crime against the person of another either includes the present ability to commit a violent injury or cause actual physical injury, is guilty of a violation of Section 422.75 of the Penal Code. [¶ In order to prove such a crime, each of the following elements must be proved: One, a person committed the crime of torture, or assault with a deadly weapon, or with force likely to produce great bodily injury, or kidnapping, or forcible oral copulation; two, such crime was committed against another person; three, the perpetrator of such crime did so with the specific intent — so this is a specific intent enhancement -with the specific intent to intimidate or interfere with the alleged victim’s free exercise or enjoyment of any right secured to him by the Constitution of or laws of the State of California or of the United States; four, the perpetrator committed the crime because of the alleged victim’s race, color, ancestry or natural origin, and; five, the perpetrator had the present ability to commit a violent injury or caused actual physical injury to the alleged victim. [¶] California law secures the right to be free from violence or the threat of it.”
Earlier, the court had instructed the jury that the “persons concerned in the commission of a crime who are regarded by law as principals in the crime thus committed, and equally guilty thereof, include those who directly and actively commit the act constituting the crime, or those who aid and abet the commission of the crime. A person aids and abets the commission of a crime when he, with knowledge of the unlawful purpose of the perpetrator, and with the intent.or purpose of committing, encouraging or facilitating the commission of the crime, by acts or advice aids, promotes, encourages or instigates the commission of the crime.”
At the end of the first day of deliberations, the jury submitted the following written question: “Could we have a clarification on the ‘Race enhancement, of the assauld [sic] with deadyly (sic] weapon, etc. notibly [sic] the aiding and abetting part.” The court responded from the bench: “Okay. You want to know about aider and abettor as relates to enhancement — the race enhancement. See, the — that’s just another theory of — of liability.” The court continued: “A principal is one who — it’s just: A principal is one who directly and actively commits the acts constituting the crime, or one who aids and abets the commission of the crime. And you aid and abet if somebody else is doing something. In other words, the aider and abettor has to do with the actions of the other people. And you aid and abet the commission of a crime when, with the knowledge of the unlawful purpose of the perpetrator — that’s the other people that were there — and with the intent or purpose of committing, encouraging, or facilitating the commission of the crime, by act or advice, aids, promotes, encourages or instigates the commission of the crime. That has to do with the actions of the other people, the aider and abettor — that’s why it was given to you — the actions of Theresa and Mark and Phil.”
The jury found defendant guilty of forcible oral copulation and assault with a deadly weapon, but found the hate-crime enhancement true only on the charge of assault with a deadly weapon.
Defendant raises a three-pronged attack on the hate-crime enhancement: he contends the enhancement must be reversed because it treads impermissibly upon his rights to free speech and assembly guaranteed by the California and Federal constitutions; the trial court incorrectly instructed the jury on section 422.75; and the court inaccurately responded to the jury’s question on the relationship of the enhancement to aider and abettor liability.
A
As a threshold issue, defendant claims that, since section 422.75 enhances punishment for the underlying felony if it is found to be racially motivated, and because motivation “was proven mostly by defendant’s and other people’s speech and use of the racial epithet,” the hate-crime statute “has a chilling effect, on a defendant’s right to free speech” and infringes upon his right to associate with other persons who might be racially prejudiced . . . .” We disagree.
Defendant does not explain exactly how enforcement of the statute would operate to chill his First Amendment rights. We note, however, that the United States Supreme Court recently rejected such an argument with respect to a similar statute. (Wisconsin v. Mitchell (1993) 508 U.S. ___ (124 L.Ed.2d 436].) [Footnote 4] The court held that the prospect of a citizen “suppressing his unpopular bigoted opinions for fear that if he later commits an offense covered by the statute, these opinions will be offered at trial to establish that he selected his victim on account of the victim’s protected status, thus qualifying him for penalty enhancement” is “simply too speculative a hypothesis” to support the claim that the statute has a “chilling effect” on the freedoms of speech and association. (Id., at p. ___ [124 L.Ed.2d at pp. 447-448].)
Moreover, it is not constitutionally impermissible, as defendant suggests, to examine his motives for the commission of these crimes. (In re Joshua H. (1993) 13 Cal.App.4th 1734.) The court in Joshua H. found constitutional the analogous provision of section 422.7, which punishes intimidation of a victim “because of” his “race, color religion, ancestry, national origin, or sexual orientation.” (Id., at pp. 1746-1752.) “The same conduct may be punished differently depending on the reason the defendant acted, i.e., the defendant’s mental state, or mens rea. For example, a homicide may be charged as first degree murder, second degree murder, voluntary manslaughter, or involuntary manslaughter, or it may be excused altogether, depending on the perpetrator’s motive.” (Id., at p. 1751, italics in original.) The government has a legitimate and even compelling interest in distinguishing between acts of violence randomly committed and acts of violence motivated by bigotry. (Ibid.) The hate-crime enhancement does not punish a person for his or her intolerant views; rather it enhances punishment when the person commits a crime and selects the victim because of his or her race. “Whether the perpetrator’s intentional selection is denominatedhis or her ‘intent’ or his or her ‘motive,’ it is relevant and may properly be considered in determining guilt.” (Id., at pp. 1751-1752; emphasis original.)
Consistent with the reasoning of Wisconsin v. Mitchell, supra, and In re Joshua H., supra, section 422.75 does not impermissibly abridge defendant’s constitutional rights. [Footnote 5]
B
Defendant contends, and the People concede, that the trial court failed to instruct the jury on all the elements necessary for a section 422.75, subdivision (b) enhancement by omitting the requirement that defendant have acted “in concert” with others. [Footnote 6] We agree the omission was harmless, but not for the reason suggested by the People.
As did the trial court, both defendant and the People overlook the fact that the hate-crime enhancement appended to the charge of assault with a deadly weapon–the only hate-crime enhancement found true by the jury–was alleged as a violation of section 422.75, subdivision (a). Unlike subdivision (b) of section 422.75, subdivision (a) contains no requirement that defendant acted in concert with others. Consequently, the court’s failure to instruct on the in concert requirement of subdivision (b) was not prejudicial. Although the verdict form specifies that defendant acted “in concert” while assaulting the victim with a deadly weapon because of his race, the in concert language is surplusage because it was not alleged in the information.
Although the trial court incorrectly imposed the punishment specified by subdivision (b) rather than subdivision (a) of section 422.75, this is of no moment because, as we shall explain in part I C, post, the enhancement must be reversed due to other instructional error.
C
Defendant contends the trial court incorrectly responded to, the jury’s question about the hate-crime enhancement by indicating that “aiding and abetting principles apply to the enhancement.” The court’s response was incorrect, defendant argues, because “section 422.75, subdivision (b) requires the defendant, when he commits a felony or aids and abets another to commit a felony, to personally act because of race or color.:
Defendant misdirects his focus solely upon section 422.75, subdivision (b). (See part I B, ante [defendant overlooks the fact that the hate-crime enhancement found true by the jury was alleged as a violation of section 422.75, subdivision (a), not subdivision (b)].)
We, however, shall analyze the language of section 422.75, subdivision (a)–the enhancement with which he was charged–and contrast it with the language of subdivision (b) to determine whether the subdivision (a) enhancement applies only if defendant personally possessed the requisite mental state, or if it also applies if defendant aided and abetted others who attacked the victim because of their racial animus but defendant himself was not so motivated.
We begin with the following principle espoused by the California Supreme Court: “Generally, if a statute is intended to impose a derivative liability on some person other than the actor, there must be some legislative direction that it is to be applied to persons who do not themselves commit the proscribed act. Such a direction is found in section 31 which fixes responsibility on an aider and abettor for a crime personally committed by a confederate. But the statute which defines aiders and abettors as principals in the commission of a criminal offense does not also purport to impose additional derivative punishment grounded on an accomplice’s personal conduct, as those statutes which provide for such increased punishment ‘”do not define a crime or offense but relate to the penalty to be imposed under certain circumstances.”‘ Hence the rules which make an accused derivatively liable for a crime which he does not personally commit, do not at the same time impose a derivatively increased punishment by reason of the manner in which a confederate commits the crime.” (People v. Walker (1976) 18 Cal.3d 232, 241-242, citations omitted.)
Whereas section 422.75, subdivision (b) explicitly applies to one who acted in concert with another person “either personally or by aiding and abetting another person” (see fn. 2, ante), subdivision (a) of the statute contains no such language. Rather, section 422.75, subdivision (a) applies to a “person” who commits a felony “because of the victim’s [specified characteristics]” or because “he or she perceives that the victim has one or more of those characteristics . . . .” (Italics added; see fn. 2, ante.)
Section 422.75, subdivisions (a) and (b) were enacted in 1991 (Stats. 1991, ch. 607, § 7) well after the decision in People v. Walker, supra, 18 Cal.3d 232, which held that, in the absence of legislative direction otherwise, a statute enhancing punishment for the commission of a felony does not impose a derivatively increased punishment by reason of the manner in which a confederate commits the crime. (Id., at pp. 241-242.)
Hence, the difference in language between subdivisions (a) and (.b) indicates the Legislature intended a subdivision (a) enhancement to apply only to a defendant who personally possessed the requisite mental state in committing or attempting to commit a felony. (Cf. People v. Ramirez (1987) 189 Cal.App.3d 603, 624-627, and cases cited therein.)
Accordingly, the trial court erred in essentially instructing the jury that the race-crime enhancement charged against defendant could be found true based upon an aider and abettor theory. Because there was evidence from which the jury could have found the enhancement true based solely upon an aider and abettor theory, this instructional error was prejudicial and we must reverse the enhancement.
II
Defendant claims the trial court erred in failing to instruct sua sponte on the misdemeanor offense of attempting to prevent a victim from reporting a crime (§ 136.1, subd. (b)(1)) as a lesser included offense within the charged felony of using the threat of force in an attempt to prevent the victim from giving testimony and assisting in the prosecution of defendant’s crime (§ 136.1, subd. (c)(1)). The contention fails because, under the facts of this case, the court had no duty to so instruct.
Defendant is correct that misdemeanor attempted intimidation of a witness is a lesser included crime within the felony offense of attempted intimidation by force or threat of force. Section 136.1, subdivision (b) states in pertinent part:: “Except as provided in subdivision (c), every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a misdemeanor: (¶) (1) Making any report of such victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge.” Subdivision (c) provides in pertinent part “Every person doing any of the acts described in subdivision (a) or (b) knowingly and maliciously under any one or more of the following circumstances, is guilty of a felony . . . . [¶] (1) Where the act is accompanied by force or by an express or
FOOTNOTES:
Further section references are to the Penal Code unless specified otherwise.
Section 422.75, subdivision (a) provides: “Except in the case of a person punished under Section 422.7, a person who commits a felony or attempts to commit a felony because of the victim’s race, color, religion, nationality, country of origin, ancestry, disability, or sexual orientation, or because he or she perceives that the victim has one or more of those characteristics, shall receive an additional term of one, two, or three years in the state prison, at the court’s discretion.”
Section 422.75, subdivision (b) provides: “Except in the case of a person punished under Section 422.7 or subdivision (a) of this section, any person who commits a felony or attempts to commit a felony because of the victim’s race, color, religion, nationality, country of origin, ancestry, disability, or sexual orientation, or because he or she perceives that the victim has one or more of those characteristics, and who voluntarily acted in concert with another person either personally or by aiding and abetting another person shall receive an additional two, three, or four years in the state prison at the court’s discretion.”
California Jury Instructions, Criminal (January 1994 pocket part, p. 224).
The Wisconsin statute enhances the penalty for a felony committed against a victim “intentionally select[ed] . . . because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person . . . . (Wisconsin v. Mitchell, supra, 508 U.S. at p. (124 L.Ed.2d at p. 442, fn. 1].)
We note the question of section 422.75’s constitutionality is presently before the California Supreme Court, which granted review in People v. Baker (1993) 31 Cal.App.4th 8.89–a decision which opined that Wisconsin v. Mitchell, supra, “laid to rest” the contention that the hate-crime enhancement is overbroad and chills protected speech (31 Cal.App.4th at p. 899)–and People v. Superior Court (Aishman) (1993) 27 Cal.App.4th 1782–another decision holding that section 422.75 does not run afoul of the Constitution.
The court erroneously instructed with a modified version of CALJIC No. 9.95, an instruction used for violations of section 422.7, which aggravates punishment when a crime is committed to intimidate a victim because of his or her beliefs or specified characteristics. While the instruction includes the most central element of section 422.75, subdivisions (a) and (b)–that defendant commit the charged crime “because of” the victim’s beliefs or characteristics–it also contains two elements irrelevant to section 422.75: that a defendant committed the crime for the “purpose of intimidating or interfering with the other person’s free exercise or enjoyment of any right secured to him by the Constitution or laws of California, or the United States”; and that “the-crime against the person of another either includes the present ability to commit a violent injury or cause actual physical injury.” Moreover, it contains no requirement that the defendant act “in concert” with others.
