Joshua H., In re

• Decision Date: 08 March 1993
• Docket Number: No. H008944,H008944
• Citation: 13 Cal.App.4th 1734,17 Cal.Rptr.2d 291
• Court: California Court of Appeals Court of Appeals
• Parties: , 61 USLW 2570 In re JOSHUA H., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. JOSHUA H., Defendant and Appellant.

Page 291

17 Cal.Rptr.2d 291

13 Cal.App.4th 1734, 61 USLW 2570

In re JOSHUA H., a Person Coming Under the Juvenile Court Law.

The PEOPLE, Plaintiff and Respondent, v. JOSHUA H., Defendant and Appellant.

No. H008944.

Court of Appeal, Sixth District, California.

March 8, 1993.

Certified for Partial Publication. ^*

Review Denied June 24, 1993.

Robert R. Riggs, Katzoff & Riggs, Berkeley, for defendant and appellant, under appointment by the Court of Appeal.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Ronald E. Niver, Supervising Deputy Atty. Gen., Joanne S. Abelson, Deputy Atty. Gen., Clifford K. Thompson, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Doreena P. Wong, Angelo N. Ancheta, Kathryn K. Imahara, Stanley Mark, Robert E. Borton, Stephen M. Hankins, Heller, Ehrman, White & McAuliffe, Diane T. Chin, Edward M. Chen, Paul Hoffman, Erwin Chemerinsky, Mary Ellen Gale, Los Angeles, for amici curiae on behalf of plaintiff and respondent.

COTTLE, Presiding Justice.

I INTRODUCTION

In the published portion of this opinion, we are asked to determine whether California's "hate crime" statute ¹ violates the First Amendment. Similar statutes in Wisconsin and Ohio were declared unconstitutional by their respective supreme courts. ² As we shall explain, we disagree with those decisions. Hate crime statutes do not run afoul of the First Amendment because they do not proscribe expression. Rather, they proscribe an especially egregious type of conduct--that of selecting crime victims on the basis of race, color, religion, ancestry, national origin, or sexual orientation.

In the unpublished portion of this opinion, we address various evidentiary matters.

II FACTS

The H. family--mother, father, two young daughters and 17-year-old Joshua, lived on Guadalupe Street in San Jose. William Kiley, a gay man, lived across the street; he also owned a rental unit next door to the H.'s. In 1988, Kiley's tenant's dog bit Mrs. H. She sued, and as a result, Kiley had to pay damages and his tenant had to have two dogs killed. Animosity between the neighbors was ongoing from that date.

Around June 1990, Kiley bought a lawn mower, which did not have a grass catcher.

When he mowed his tenant's lawn, grass clippings would blow onto the H.'s' driveway. This incensed the H.'s. By December 1990, the grass clippings issue became so heated that Kiley stopped mowing the lawn.

In television interviews admitted as evidence at trial, Kiley said the H.'s constantly harassed him because of his sexual orientation. When he contacted an attorney about the harassment, he was told he would need to get proof. He obtained that proof on June 11, 1991.

On that date, Kiley again mowed the lawn at his rental. As he was finishing, Mr. H. came home, looked at Kiley, and said, "You cocksucker, I'm tired of your fucking games." Kiley went into his house and turned on a video camera, which he aimed at his rental. He then returned to the rental and watered the lawn. He also picked up a couple handfuls of grass trimmings from the H.'s driveway and put them in a garbage can. There was no response from the H.'s so Kiley returned home and turned off the video camera. Later Joshua appeared at his door, asking if Kiley was "gonna clean up the grass on our driveway." Kiley said he would. He turned the video camera on, went to the backyard of his rental, and watered some more. Then he came home and turned the camera off.

Around 6 p.m., Geo Romero and his sister Vickey came over to watch some videos of the San Francisco Gay Pride Parade. Before they began, Kiley went over to the H.'s' driveway and swept grass clippings into the gutter. He did not videotape this.

Around 8 p.m., Kiley's roommate announced that the H.'s had left a "present" for Kiley on the front porch. The "present" was a pile of dirt and grass clippings. Kiley picked up several handfuls, went to the H.'s' house, and threw it on their driveway. One of the H. girls came outside and asked, "Why are you doing this to us?"

Kiley turned the video camera back on and returned to his rental property, watering the lawn once again. Mrs. H. came outside and took pictures of the grass clippings. She told Kiley that all she expected out of him was to be a reasonable neighbor. By 8:08 p.m., tensions were so high that Mr. H. called the police hotline to see what could be done. The police recorded the call, which lasted 12 minutes. After putting Mr. H. on hold several times, police gave him the names and telephone numbers of agencies that might help settle their dispute. At a certain point during this 12-minute conversation, a fight broke out between Joshua and Kiley. At that time the police transferred the call to 911.

The fight was captured on Kiley's video tape. ³ It showed an agitated Joshua dancing around Kiley like a boxer, yelling at him to clean up the grass clippings, and pointing at his driveway for approximately one and one-half minutes. During this time Joshua repeatedly called Kiley a "faggot," "queer," and "punk." He taunted Kiley, "come on, let's get it on you faggot queer." After Kiley ordered Joshua to "[g]et off my property," Joshua hit him. Kiley did not respond at first, but then he squirted Joshua with the hose. Joshua became enraged. He took off his shirt, threw it on the car in his driveway, then came after Kiley, hitting and kicking him several times. Kiley never hit back.

During the altercation, Joshua's mother and sisters came outside, and then his father joined them. Mr. H. said he didn't want to talk to Kiley. Mrs. H., however, called him a "fucking ass hole." As the battered Kiley was returning home, Joshua yelled out, "Where are you going, faggot, you going to suck some faggot dick?"

When Kiley got inside his home, he asked his roommate, "How does it look?" They took the video camera outside and took close-up pictures of Kiley's wounds, which immediately after the incident were not very visible. Television interviews several days later, however, showed black eyes and Kiley's neck in a brace.

Following trial, the juvenile court found true all the allegations in the petition, including the allegation that Joshua "did commit a crime in violation of Section 242-243(a) of the California Penal Code against the person and property of another, to wit: William Kiley, for the purpose of intimidating and interfering with William Kiley's free exercise and enjoyment of a right secured to him by the constitution and laws of the State of California and the United States, because of his sexual orientation, and that the foregoing offense included the present ability to commit a violent injury and caused actual physical injury to William Kiley; thereby violating Section 422.7(a) of the Penal Code of the State of California, a felony."

Additional facts will be discussed where relevant.

III DISCUSSION

A. Is Penal Code Section 422.7 Constitutional?

Penal Code section 422.7 permits a misdemeanor to be punished as a felony "if the crime is committed against the person or property of another for the purpose of intimidating or interfering with that other person's free exercise or enjoyment of any right secured to him or her by the constitution or laws of this state or by the constitution or laws of the United States, because of the other person's race, color, religion, ancestry, national origin, or sexual orientation ... [where] [t]he crime against the person of another either includes the present ability to commit a violent injury or causes actual physical injury."

Joshua contends section 422.7 is void for vagueness for failing to afford adequate notice of the conduct proscribed. We disagree. As Joshua acknowledges, section 422.7 may be saved "by a narrowing construction requiring a specific intent to deprive a person of a defined constitutional or statutory 'right' on account of the person's status as a member of a protected class." (See e.g., Screws v. United States (1945) 325 U.S. 91, 101, 104, 65 S.Ct. 1031, 1035, 1036, 89 L.Ed. 1495.) The only California court to examine this code section gave it just such a narrow construction. (See People v. Lashley (1991) 1 Cal.App.4th 938, 947, 2 Cal.Rptr.2d 629.) The court pointed out that section 422.7 was "modeled after the federal criminal civil rights statute presently codified in 18 United States Code section 242 and the Massachusetts Civil Rights Act of 1979...." (Id., at pp. 947, 947-948, fn. 7, 2 Cal.Rptr.2d 629.) ⁴ Each of those statutes had been construed to require "a specific intent" "to deprive a person of a right which has been made specific either by the express terms of the Constitution or laws of the United States or by decisions interpreting them." (Screws v. United States, supra, 325 U.S. 91, 101, 104, 65 S.Ct. 1031, 1035, 1037; see also Com. v. Stephens (Mass.App.Ct.1987) 25 Mass.App.Ct. 117, 515 N.E.2d 606, 609.)

Like the statutes after which it was modeled, section 422.7 also requires proof of a specific intent to deprive an individual of a right secured by federal or state law. "This does not mean, however, that the Joshua also contends section 422.7 is overbroad in that it punishes activity protected by the First Amendment--namely, a person's bigoted thoughts. While this issue is raised in this case for the first time in California, it has been raised many times in other states which have hate crime statutes similar to ours. ⁵ In each case, except the recent Wisconsin and Ohio cases, ⁶ the courts have upheld the statutes as against First Amendment challenges. ⁷ As a New York court explained, "The statute does not attempt to prohibit bigotry itself. The individual's freedom to think, and indeed, speak, publish or broadcast views on the subjects of race, religion or ethnicity are not regulated by this law. Violent conduct is what is being regulated." (People v. Grupe, supra, 532 N.Y.S.2d at p. 818.) An Oregon court came to the same...