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People v. Superior Court (Aishman) (1995) 10 Cal.4th 735 , 42 Cal.Rptr.2d 377; 896 P.2d 1387

[No. S033133. Jul 3, 1995.]

THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; RONALD ALLAN AISHMAN et al., Real Parties in Interest.

(Opinion by Werdegar, J., with Lucas, C. J., Arabian, Baxter and George, JJ., concurring. Separate opinions by Mosk, J., concurring in the judgment, and Kennard, J., concurring.)

COUNSEL

Ewin L. Miller, Jr., District Attorney, Thomas F. McArdle and Luis M. Aragon, Deputy District Attorneys, for Petitioner.

Arlo Smith, District Attorney (San Francisco) and Charles F. Haines, Assistant District Attorney, as Amici Curiae on behalf of Petitioner.

No appearance for Respondent.

Francis J. Bardsley, Public Defender, Loren I. Mandel, Alternate Public Defender, Gary R. Nichols, Deputy Public Defender, Jacqueline C. Crowle, Alternate Deputy Public Defender, David L. Baker, Sandra Resnick, William L. Burnell, Gilbert E. Newton, Kent H. Thaeler and D. David Nielsen for Real Parties in Interest.

John T. Philipsborn, Katzoff & Riggs and Robert R. Riggs as Amici Curiae on behalf of Real Parties in Interest.

OPINION

WERDEGAR, J.

In this case we construe Penal Code section 422.75, one of California's "hate crimes" statutes. fn. 1 Section 422.75 provides for imposition of a sentence enhancement for felonies committed because of the victim's race, color, nationality, country of origin, ancestry, disability or sexual orientation. The trial court granted real parties' pretrial motion to dismiss the section 422.75 allegations, holding the statute exerted a "chilling effect" on expression and was vague and overbroad. The Court of Appeal granted the People's petition for writ of mandate, concluding section 422.75 is not unconstitutional. We granted review to address the People's contention that, although the Court of Appeal correctly upheld the statute, it erroneously read section 422.75 as impliedly containing a specific intent [10 Cal.4th 738] requirement. We conclude the People's argument has merit. Since, however, the Court of Appeal reached the correct result in ordering the trial court to vacate its order dismissing the section 422.75 allegations, we affirm.

Factual and Procedural Summary

In order to address this purely legal question, we will rely on the summary of facts set forth in the opinion of the Court of Appeal.

Real party in interest Daniel J. Stout learned his wife allegedly had been raped by some Mexican men in the area of a creekbed behind the Alpine Market on Tavern Road in Alpine. Stout enlisted the aid of real parties Ronald Allan Aishman, Ronald Inman, Charles E. Nocita and Christopher S. Hastings in seeking to retaliate against the alleged rapists.

About a week later, on the evening of October 1, 1992, Hastings drove the other real parties to the area where the rape was said to have occurred. Stout, Inman, Aishman and Nocita walked down to the creek bed and attacked three men with baseball bats, metal pipes and a table leg. The victims suffered fractures and lacerations.

As evidence of a bias motivation in the selection of the victims, the People relied on various statements purportedly made by real parties. For example, Aishman was alleged to have talked about "hitting home runs with Mexicans." Additionally, Inman allegedly had both a swastika and the words "Thank God I'm White" tattooed on his arms.

Each of the real parties was charged by information with three counts (one count for each victim) of assault with a deadly weapon and by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) and three counts of battery with serious bodily injury (§ 243, subd. (d)). For each real party the information further alleged the offense charged in each count was committed (1) while acting with another, and (2) because of the victims' race, color, nationality, country of origin or ancestry, in violation of section 422.75, subdivision (b).

Real parties moved to dismiss the section 422.75 allegations on constitutional grounds, arguing the statute is vague and overbroad and punishes speech or thought in violation of the First and Fourteenth Amendments. In opposition, the People contended the statute punishes discriminatory conduct, not speech, and thus is consistent with the First Amendment. The People further argued the statute is neither overbroad nor vague. The trial court ruled section 422.75 violates the First Amendment because it has a [10 Cal.4th 739] "chilling effect" on freedom of expression, and also violates the Fourteenth Amendment because it is overbroad and thus invites "standardless prosecution." Accordingly, the trial court dismissed the section 422.75 allegations.

The Court of Appeal granted the People's ensuing petition for writ of mandate and directed the trial court to vacate its dismissal order. It upheld the constitutionality of section 422.75, concluding the statute does not violate the First Amendment, because it punishes conduct rather than speech. The Court of Appeal also concluded section 422.75 satisfies the requirements of the Fourteenth Amendment, if read to include a specific intent requirement and if the "because of" language contained in section 422.75 is interpreted to require the victim's protected characteristic be a "substantial factor" in the defendant's selection of the victim.

Discussion

[1] At the time of the offenses alleged in this case, section 422.75 provided in relevant part as follows: "(b) 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 and who voluntarily acted in concert with another person either personally or by aiding and abetting another person shall receive an additional two, three, or four years in state prison at the court's discretion." fn. 2

Relying on People v. Lashley (1991) 1 Cal.App.4th 938, 946-947 [2 Cal.Rptr.2d 629] (Lashley), the Court of Appeal reasoned section 422.75 must be read to include a specific intent requirement. We disagree. Neither Lashley nor the statutory language supports the conclusion.

Lashley, supra, 1 Cal.App.4th 938, construed not section 422.75, but sections 422.6 and 422.7. Section 422.6 prohibits "willfully injur[ing], intimidat[ing] or interfer[ing] with, oppress[ing], or threaten[ing] any other person" in the exercise and enjoyment of his or her rights under the Constitution [10 Cal.4th 740] or laws of this state or those of the United States, by force or threat of force, because of the other person's race, color, religion or other specified protected characteristic. (§ 422.6, subd. (a), italics added.) Section 422.7 makes it a crime, punishable as a felony, for any person to commit a misdemeanor (except an offense constituting a violation of section 422.6) against another's person or property for the purpose of intimidating or interfering with the other's exercise or enjoyment of any right secured to him or her by federal or state law, because of the other person's specified protected characteristic. (§ 422.7.) The Lashley court noted both sections were modeled after the federal criminal civil rights statute presently codified at 18 United States Code section 242 and the Massachusetts Civil Rights Act of 1979. (Lashley, supra, 1 Cal.App.4th at p. 947.) Relying on decisions interpreting those statutes (see, e.g., Screws v. United States (1945) 325 U.S. 91, 101, 106-107 [89 L.Ed. 1495, 1502, 1505, 65 S.Ct. 1031, 162 A.L.R. 1330]; United States v. Ehrlichman (D.C. Cir. 1976) 546 F.2d 910, 921 [178 App.D.C. 144, 39 A.L.R.Fed. 604]; Com. v. Stephens (1987) 25 Mass.App. 117 [515 N.E.2d 606]), the Lashley court interpreted the "willfully" element of section 422.6 to require proof a defendant specifically intended to deprive another person of his or her civil rights. (1 Cal.App.4th at p. 949.) Acknowledging section 422.7 does not contain the word "willfully," the Lashley court nevertheless concluded, in light of other similarities in the wording of that statute to its federal counterpart, a specific intent is necessary to prove a violation of section 422.7 as well as section 422.6. (Lashley, supra, 1 Cal.App.4th at p. 949; see also In re M.S. (1995) 10 Cal.4th 698, 713 [42 Cal.Rptr.2d 355, 896 P.2d 1365].)

Unlike the language of sections 422.6 and 422.7, that contained in section 422.75 does not admit of a specific intent requirement. Section 422.6 punishes "willfully" injuring, intimidating, interfering with, oppressing or threatening another person in the exercise of legal rights; section 422.7 prohibits doing certain acts "for the purpose of" intimidating or interfering with another person's exercise of legal rights. Both statutory formulations import the concept of doing an act with the intent to achieve a further consequence, i.e., to deprive the victim of his or her legal rights. (See People v. Daniels (1975) 14 Cal.3d 857, 860 [122 Cal.Rptr. 872, 537 P.2d 1232] [defining general and specific intent].) In contrast, section 422.75 simply increases the punishment for a felony motivated by prohibited bias, without reference to the perpetrator's seeking any further consequence.

The judiciary ordinarily has no power to insert in a statute an element the Legislature has omitted (Wells Fargo Bank v. Superior Court (1991) 53 [10 Cal.4th 741] Cal.3d 1082, 1099 [282 Cal.Rptr. 841, 811 P.2d 1025]), and no reason appears in this case to warrant departure from this rule. We thus conclude section 422.75 contains no specific intent requirement.

Real parties' brief on the merits acknowledges the absence of any specific intent requirement from section 422.75, and real parties do not renew the argument that such absence renders the statute unconstitutionally vague. Instead, they challenge the Court of Appeal's interpretation of the statute's motive element. They argue the Legislature, in enhancing the punishment for a felony committed "because of" the victim's race, religion or other protected characteristic, intended section 422.75 not to apply unless the prosecution proves the crime would not have been committed but for the bias motive. The People have joined issue with real parties on the proper interpretation of "because of," urging us to construe the phrase as requiring proof the bias motive was a "substantial motivating factor" in the commission of the offense. The People express concern lest the causation element of section 422.75 become an impossible burden for the prosecution in hate crimes cases.

Because no party petitioned for review on this ground, we need not consider the issue. (Cal. Rules of Court, rule 28(e)(2).) The parties, however, have briefed the issue, they ask us to decide it, the issue is significant, and to decide it now will conserve judicial resources. (Cf. Dix v. Superior Court (1991) 53 Cal.3d 442, 454 [279 Cal.Rptr. 834, 807 P.2d 1063].) In In re M.S., supra, 10 Cal.4th at pages 716-720 we have interpreted identical statutory language ("because of") contained in other hate crimes statutes (sections 422.6 and 422.7) to mean the bias motivation must have been a cause in fact of the offense, and when multiple concurrent causes exist, the bias motivation must have been a substantial factor in bringing about the offense. (In re M.S., supra, 10 Cal.4th at p. 719.) Our reasoning on this point in In re M.S., supra, applies with equal force to section 422.75.

Conclusion

The judgment of the Court of Appeal is affirmed.

Lucas, C. J., Arabian, J., Baxter, J., and George, J., concurred.

MOSK, J.

I concur in the judgment. (See In re M.S. (1995) 10 Cal.4th 698, 728-729 [42 Cal.Rptr.2d 355, 896 P.2d 1365] (conc. opn. of Mosk, J.).) [10 Cal.4th 742]

KENNARD, J.,

Concurring.-The majority holds that the words "because of" in Penal Code section 422.75 carry the meaning they have in former Penal Code sections 422.6 and 422.7, as construed by this court in the companion case of In re M.S. (1995) 10 Cal.4th 698 [42 Cal.Rptr.2d 355, 896 P.2d 1365]. Subject to the understanding stated in my concurring opinion in that case, I concur in the judgment and in the majority opinion.

­FN 1. Further statutory references are to the Penal Code unless otherwise specified.

­FN 2. Subdivision (a) of section 422.75 provides for an enhancement of one, two, or three years, at the court's discretion, for one who commits a felony because of the victim's protected status without acting in concert with another. Subdivision (d) of the statute provides, in the case of one punished under subdivision (a) or (b), for an additional term of one year in state prison for each prior felony conviction, on charges brought and tried separately, in which the trier of fact found the crime was committed because of the victim's protected characteristic. In 1994 section 422.75 was amended to expressly apply, in addition, when a person commits the offense because he or she perceived the victim to have one or more of the protected characteristics. (Stats. 1994, ch. 407, § 4.)

Petition for review after the Court of Appeal granted a petition for peremptory writ of mandate. This case concerns the construction and constitutionality of Penal Code section 422.75.

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:
Mon, 07/03/1995	10 Cal. 4th 735, 896 P.2d 1387, 42 Cal. Rptr. 2d 377	S033133	Review - Criminal Original (non-H.C.)	closed; remittitur issued

Opinion Authors
Opinion	Justice Kathryn M. Werdegar
Concur	Chief Justice Ronald M. George, Justice Marvin R. Baxter

Disposition
Jul 29 1993	Granted & Transferred to CA 4/1

Dockets
May 28 1993	Petition for review filed Ptr People (by D.A.) filed in San Diego
Jun 2 1993	Received: CA Record - 1 Manila Jacket w/1 Vol Exhibits Att.
Jun 16 1993	Answer to petition for review filed Real party Ronald Allan Aishman
Jun 25 1993	Reply to answer to petition filed Ptr People (filed in San Diego)
Jul 20 1993	Time Extended to grant or deny Petition for Review To and Including 8/26/93.
Jul 29 1993	Petition for review granted; transferred to CA 4/1 w/directions to vacate and refile its opinion to permit the filing of a petition for rehearing. Votes: Lucas C.J., Panelli, Baxter & George JJ.
Sep 20 1993	- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Sep 21 1993	Petition for review filed The People (Petr) by Dist. Atty, San Diego County (filed in San Diego)
Sep 23 1993	Received: C/A Record: D018536 - 1 Manila Jacket, briefs, and Exhibits (1 Vol)
Oct 1 1993	Answer to petition for review filed RPI Charles Nocita (filed in San Diego)
Oct 4 1993	Received document entitled: Supplemental Proof of Service of Petition for Review.
Oct 8 1993	Filed: RPI Aishman's joinder to answer filed by RPI Nocita.
Nov 17 1993	Petition for Review Granted Votes: Arabian A.C.J., Panelli, Kennard & George JJ.
Dec 9 1993	Opening brief on the merits filed Petr's (People) Opening brief/merits (filed in San Diego)
Jan 5 1994	Application for Extension of Time filed By RPI (Stout)to file answer brief on the merits. asking Until Feb. 09, 1994.
Jan 10 1994	Extension of time granted Answer Br/merits to 2-9-94 Real party Stout [public Defender has not been appointed]
Feb 9 1994	Answer brief on the merits filed RPI Christopher Stephen Hastings [Aty Nielsen has not been appointed] (filed in San Diego)
Feb 16 1994	Filed: Joinder of RPI Aishman to RPI Hastings' Opening brief on the merits.
Feb 23 1994	Filed document entitled: Letter of Withdrawal of RPI Hastings' Opening brief on the merits (filed in San Diego) Tct
Feb 28 1994	Answer brief on the merits filed By Counsel for RPI's Inman, Aishman, Hastings, Stout and Nocita. Perm
Mar 14 1994	Reply brief filed (case fully briefed) Petr's (filed in San Diego)
Mar 23 1994	Received application to file Amicus Curiae Brief Application and brief received from the California D.A.'s Ass'n in support of Petr.
Apr 4 1994	Permission to file amicus curiae brief granted Of California District Attorney's Association in support Of Petr.
Apr 4 1994	Amicus Curiae Brief filed by: By California D.A.'s Ass'n in support of Petr. answer Due 4/20/94.
May 3 1994	Received application to file Amicus Curiae Brief And brief of Cal Atys Crim Justice in support of Resp
May 5 1994	Received letter from: Katzoff Et Al Re Amended Proof/Service of Amicus brief by C.A.C.J. Upon Aty Bardsley for RPI Stout. (Faxed Copy) Hard copy received 5/9/94
May 6 1994	Permission to file amicus curiae brief granted Cal Attorneys for Crim Justice in support of Petr answer Due: 6-6-94
May 6 1994	Amicus Curiae Brief filed by: Cal Attorneys for Crim Justice in support of Petr
May 19 1994	Received letter from: Katzoff & Riggs dated 5/9/94 Clarifying Cacj Is in support of RPIs
Oct 11 1994	Received letter from: Counsel for Real parties in Interest Re Scheduling of Oral Argument for December 1994.
Mar 3 1995	Case Ordered on Calendar: Wednesday, April 5, 1995, 9 A.M. - L.A.
Apr 3 1995	Filed: RPI's Additional Auths Re Oral Argument
Apr 5 1995	Cause Called and Argued (not yet submitted)
Apr 5 1995	Submitted by order
Jul 3 1995	Opinion filed: Judgment affirmed in full Majority Opinion by Werdegar, J. -- joined by Lucas C.J., Arabian, Baxter & George JJ. Concurring Opinion by Mosk, J. Concurring Opinion by Kennard, J.
Aug 2 1995	Remittitur Issued
Aug 8 1995	Received: Receipt for Remittitur Signed By: W. Pasek

Briefs
Dec 9 1993	Opening brief on the merits filed Petr's (People) Opening brief/merits (filed in San Diego)
Feb 9 1994	Answer brief on the merits filed RPI Christopher Stephen Hastings [Aty Nielsen has not been appointed] (filed in San Diego)
Feb 28 1994	Answer brief on the merits filed By Counsel for RPI's Inman, Aishman, Hastings, Stout and Nocita. Perm
Mar 14 1994	Reply brief filed (case fully briefed) Petr's (filed in San Diego)
Apr 4 1994	Amicus Curiae Brief filed by: By California D.A.'s Ass'n in support of Petr. answer Due 4/20/94.
May 6 1994	Amicus Curiae Brief filed by: Cal Attorneys for Crim Justice in support of Petr

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website

May 16, 2011 Annotated by Jennifer Sheldon-Sherman

OPINION BY: Werdegar, J. Facts: During the last week of September 1992, Daniel Stout learned that his wife had allegedly been raped by a group of Mexican men in a creek bed on Tavern Road in Alpine, California. On October 1, 1992, Daniel Stout enlisted the help of Ronald Aishman, Ronald Inman, Charles Nocita, and Christopher Hastings to retaliate against the perpetrators. That evening, Stout, Aishman, Inman, Nocita, and Hastings drove to the location where the rape was alleged to have occurred. Once there, they attacked three Mexican men with baseball bats, metal pipes, and a table leg. The victims suffered injuries including fractures and lacerations. Stout, Aishman, Inman, Nocita, and Hastings were all charged under § 245(a)(1) with three counts of assault with a deadly weapon and by means of force likely to produce great bodily injury. They were also charged under § 243(d) with three counts of battery with serious bodily injury. Each offense was also charged under § 422.75(b), one of California’s hate crime statues, as an act committed with another person and because of the victim’s race, color, nationality, country of origin, or ancestry. In showing racial bias, the State relied upon statements allegedly made by the attackers, including Aishman’s statement that he was “hitting home runs with Mexicans.” The State also presented evidence that Inman had a swastika and the words “Thank God I’m White” tattooed on his arms. Procedural History: The defendants moved to dismiss the charges under § 422.75 alleging that the statute was unconstitutionally vague and overbroad, punishing speech and thought in violation of the First and Fourteenth Amendments. The State argued that the statute was not vague or overbroad and that it punishes only discriminatory conduct, not discriminatory speech, and is accordingly constitutional under the First Amendment. The trial court dismissed the § 422.75 allegations, holding that the statute violates the First and Fourteenth Amendments through its “chilling effect” on freedom of expression and its overbroad promotion of “standardless prosecutions.” The Court of Appeals upheld the constitutionality of § 422.75 under both the First—for punishing conduct rather than speech—and the Fourteenth Amendment if the statute is read to include a specific intent requirement and if the victim’s protected characteristic is a “substantial factor” in the defendant’s selection of the victim. Issue: Does California Penal Code § 422.75, one of California’s “hate crimes” statutes, impliedly contain a specific intent requirement? Holding: No. Section 422.75 of the California Penal Code does not impliedly contain a specific intent requirement. Analysis: At the time of the alleged crimes, § 422.75 of the California Penal Code provided in relevant part that: "(b) Except in the case of a person punished under § 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 and who voluntarily acted in concert with another person either personally or by aiding and abetting another person shall receive an additional two, three, or four years in state prison at the court's discretion." Neither prior caselaw nor statutory language supports the conclusion that § 422.75 of the California Penal code must include a specific intent requirement. In finding that § 422.75 must impliedly include a specific intent requirement, the Court of Appeals relied upon People v. Lashley, 1 Cal. App. 4th 938 (1991). Lashley, however, construed sections 422.6—which prohibits "willfully injur[ing], intimidat[ing] or interfer[ing] with, oppress[ing], or threaten[ing] any other person" in the exercise and enjoyment of her Constitutional rights—and section 422.7—which criminalizes the commission of a misdemeanor against another person or her property for the purpose of intimidating or interfering with federal or state right or because of the person’s protected characteristic. In conducting its analysis, the Lashley court referenced the federal criminal civil rights statutes after which sections 422.6 and 422.7 were modeled. 18 U.S.C. § 242; Massachusetts Civil Rights Act of 1979. Relying on other court decisions interpreting those statutes, the Lashley court concluded that the term “willfully” in § 422.6 requires proof that the defendant intended to deprive the other person of her civil rights. See, e.g., Screws v. United States, 325 U.S. 91, 101 (1945); United States v. Ehrlichman, 546 F.2d 910 (D.C. Cir. 1976). Despite the fact that § 422.7 did not contain the word “willfully,” the Lashley court still concluded that, because of its similarity to the federal statute after which it was modeled, it too must contain a specific intent requirement. The language of § 422.75, however, does not imply a specific intent requirement in the same way as sections 422.6 and 422.7. The language of both sections 422.6 and 422.7 reflects the concept of doing an act with the intent to achieve a desired consequence; section 422.6 prohibits “willfully” interfering with the exercise of another’s constitutional rights and § 422.7 prohibits actions that are “for the purpose of” interfering with another’s legal rights. Section 422.74, on the other hand, does not include this or similar language. Rather, it merely increases the punishment for any crime motivated by a prohibited bias without reference to the perpetrator’s intent. The judiciary is not permitted to insert an element into a statute that the legislature has permitted. Thus, § 422.75 can have no specific intent element. Because the parties do not renew their argument that the absence of a specific intent renders the statute unconstitutionally vague, this issue was not considered in the case. The Court considered one final issue even though no party petitioned for review on the matter because the parties briefed the issue and the court determined that deciding it at present would conserve scarce judicial resources in the future. At issue was the Court of Appeal’s interpretation of § 422.75’s motive element. The State’s argument was that in increasing punishment for crimes perpetrated “because of” a victim’s protected characteristics, the legislature intended for § 422.75 to apply only when the prosecution can prove that the crime would not have been committed if not for the bias motive. Accordingly, the State urged the Court to interpret the phrase “because of” as requiring proof that bias was a “substantial motivating factor” in the offense. The Court responded, relying on and extending its decision in In re M.S., 10 Cal. 4th 698, 716-20 (1995), where it interpreted identical “because of” language in other hate crime statutes (sections 422.6 and 422.7) to require a showing that bias motivation must be a cause in fact of the offense. When multiple causes exist, bias motivation must be a substantial factor. Ruling: Affirmed the judgment of the Court of Appeal. Key Cases Discussing or Citing Aishman: People v. Nepolis, 2008 WL 344748 (Cal. App. 2008). http://scholar.google.com/scholar_case?case=942949798972846083&q=People+... People v. Lindberg, 45 Cal. 4th 1 (2008). http://scholar.google.com/scholar_case?case=15849204948692126653&q=Peopl... People v. Hagedorn, 127 Cal. App. 4th 734 (2005). http://scholar.google.com/scholar_case?case=7206461969418680769&q=People... Zavala v. Hartley, 2010 U.S. Dist. LEXIS 123932 (C.D. Cal. 2010). http://scholar.google.com/scholar_case?case=7150769899481867919&q=Zavala... SEARCH TAGS: Hate crimes, bias, motive, protected characteristic, specific intent, intent requirement, motivation, overbroad, willfully, vague, victim’s race, intimidating, substantial factor, enhancement, religion, civil rights Annotation by Jennifer A.L. Sheldon-Sherman

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