M.S., In re, Nos. A055072

• Court: California Court of Appeals
• Writing for the Court: KLINE
• Citation: 22 Cal.Rptr.2d 560,17 Cal.App.4th 1328
• Parties: Previously published at 17 Cal.App.4th 1328, 22 Cal.App.4th 988, 27 Cal.App.4th 1752, 32 Cal.App.4th 1320 17 Cal.App.4th 1328, 22 Cal.App.4th 988, 27 Cal.App.4th 1752, 32 Cal.App.4th 1320, 62 USLW 2167 In re M.S., a Minor. The PEOPLE, Plaintiff and Respondent, v. M.S., Defendant and Appellant. In re A.G., a Minor. The PEOPLE, Plaintiff and Respondent, v. A.G., Defendant and Appellant.
• Decision Date: 17 August 1993
• Docket Number: A055963,Nos. A055072

Page 560

22 Cal.Rptr.2d 560 Previously published at 17 Cal.App.4th 1328, 22 Cal.App.4th 988, 27 Cal.App.4th 1752, 32 Cal.App.4th 1320 17 Cal.App.4th 1328, 22 Cal.App.4th 988, 27 Cal.App.4th 1752, 32 Cal.App.4th 1320, 62 USLW 2167 In re M.S., a Minor.
The PEOPLE, Plaintiff and Respondent,
v.
M.S., Defendant and Appellant.
In re A.G., a Minor.
The PEOPLE, Plaintiff and Respondent,
v.
A.G., Defendant and Appellant. Nos. A055072, A055963. Court of Appeal, First District, Division 2, California. Aug. 17, 1993.
Review Granted Jan. 17, 1994.

Page 562

[17 Cal.App.4th 1326] Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Joanne S. Abelson, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Mat Zwerling, First Dist. Appellate Project, San Francisco, Stewart C. Pollack, Berkeley, Jean Allan, Donna Teshima, Deputy Public Defender, Office of the Public Defender, San Francisco, for defendants and appellants.

Linda F. Robertson, Burlingame, for amicus curiae Calif. Public Defenders Assn.

John T. Philipsborn, Dennis P. Riordan, San Francisco, for amicus curiae Calif. Attys. for Crim. Justice.

Stephen Hankins, Robert Borton, Heller, Ehrman, White & McAuliffe, San Francisco, for amicus curiae Intergroup Clearinghouse.

Diane T. Chin, San Francisco, for amicus curiae S.F. Lawyers' Committee for Urban Affairs.

Joshua Baker, San Francisco, for amicus curiae Anti-Defamation League of B'nai B'rith.

Angelo N. Ancheta, Doreena P. Wong, [17 Cal.App.4th 1327] Kathryn K. Imahara, Stanley Mark, San Francisco, for amicus curiae Nat. Asian Pacific American Legal Consortium.

Edward M. Chen, Matthew A. Coles, San Francisco, for amicus curiae ACLU for Northern California.

Paul Hoffman, Erwin Chemerinsky, Mary Ellen Gale, Los Angeles, for amicus curiae ACLU for Southern California.

Joyce M. Norcini, San Francisco, for amicus curiae Bay Area Lawyers for Individual Freedom.

Robert J. Thyken, Jr., San Francisco, for amicus curiae Bay Area Lawyers for Individual Freedom.

KLINE, Presiding Justice.

Appellants in these consolidated cases contend that Penal Code sections 422.6 and 422.7, key portions of the California "hate crime" statute, ¹ violate the First Amendment. We shall conclude that when narrowly construed these sections do not infringe First Amendment guarantees.

FACTS

On August 20, 1990, at approximately 2:30 a.m., Jonathan Ebarb, Christopher Minor, Bill Camilo, Dennis Graff, and Christopher McMillan rode in Ebarb's flat bed truck to Little Orphan Andy's, a restaurant on 17th Street near Castro in San Francisco. The Castro district is known as a "gay ghetto" and the men in the truck were homosexual. They had just gotten off work and were going to the restaurant to eat breakfast, as they did every Sunday.

As they drove along 17th Street, Minor, who along with McMillan was sitting in the flat bed, heard male and female voices yelling anti-gay epithets, such as "faggot" and "queer." Their tone sounded "hateful." Minor saw two women (appellants M.S. and A.G.) and two men (Rosenberg and Miles). All four were screaming things like "where are you going, faggot, come here faggot, we are going to kill you. You fucking Faggots...." Their tone was threatening, and they were walking quickly.

After Ebarb parked the truck, M.S. and A.G., yelling anti-gay epithets, participated with Rosenberg and Miles in physically attacking Ebarb and Minor. Although the facts are disputed, appellants concede that their conduct fell within the prohibitions of Penal Code sections 422.6 and 422.7 ² and that the findings of the court were supported by substantial evidence. Hence, we shall forgo a lengthy factual recitation.

As a result of this attack, the court declared M.S. and A.G. to be wards of the court pursuant to Welfare and Institutions Code section 602, finding true as to each juvenile allegations of the petitions charging

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two counts of assault with a deadly weapon (§ 245, subd. (a)(1), counts 1 and 2); battery (§ 243, subd. (d), count 3); and interference with the exercise of civil rights, a misdemeanor (§ 422.6, count 4). Counts 1 through 3 were enhanced pursuant to section 422.7, which applies to misdemeanors committed to interfere with civil rights. ³ DISCUSSION

I.

The Legislature enacted Penal Code sections 422.6 and 422.7 in 1987 as part of the Bane Civil Rights Act ("the Act"), which implements recommendations of the Attorney General's Commission on Racial, Ethnic, Religious and Minority Violence ("Commission"). (See Commission Final Report (April 1990) at pp. 19, 46-47.) Following two years of public hearings throughout California, the Commission concluded that minorities had been harassed, intimidated, assaulted, and even murdered in virtually every part of the state. It further found that the rate of such hate crimes was increasing, and that existing laws were inadequate to protect Californians from "hate-motivated" violence. (See Commission Final Report (April 1986) at pp. 10-13, 19, 22-23.) The impact of such crimes on the community was pervasive, as crimes targeted against members of minority communities "pose[ ] a serious threat to California communities.... Witnesses before the Commission cited the high level of distrust, fear, and alienation in minority communities" because of "hate violence." (Id., at p. 13.) The express purpose of the Act was "to give law enforcement officials clear[,] effective authority to prevent acts of hate violence, and to deter such conduct by establishing serious criminal penalties." (Assem.Com. on Pub.Safety, Analysis of Assem. Bill No. 63 (1987-1988 Reg.Sess.), as amended April 6, [17 Cal.App.4th 1329] 1987 at p. 2; Sen. Rules Com., Analysis of Assem. Bill No. 63 (1986-1988 Reg.Sess.), as amended September 8, 1987 at p. 2; Sen Com. on Judiciary, Analysis of Assem.Bill No. 63 (1987-1988 Reg.Sess.), as amended June 26, 1987 at p. 2.) ⁴

At the time of the crimes here, ⁵ section 422.6 provided in relevant part:

"(a) No person, whether or not acting under color of law, shall by force or threat of force, willfully injure, intimidate or interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States because of the other person's race, color, religion, ancestry, national origin, or sexual orientation.

"...

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"(c) Any person convicted of violating subdivision (a) or (b) shall be punished by imprisonment in the county jail not to exceed six months, or by a fine not to exceed five thousand dollars ($5,000), or by both the fine and imprisonment; provided, however, that no person shall be convicted of violating subdivision (a) based upon speech alone, except upon a showing that the speech itself threatened violence against a specific person or group of persons and that the defendant had the apparent ability to carry out the threat." (Italics added.)

Section 422.7 provided at all relevant times as follows:

"Except in the case of a violation of subdivision (a) or (b) of Section 422.6, any crime which is not made punishable by imprisonment in state prison shall be punishable by imprisonment in state prison or in county jail not to exceed one year, or by fine not to exceed ten thousand dollars ($10,000), or by both the fine and imprisonment, 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, under any of [17 Cal.App.4th 1330] the following circumstances, which shall be charged in the accusatory pleading:

"(a) The crime against the person of another either includes the present ability to commit a violent injury or causes actual physical injury.

"..."

Appellants contend that sections 422.6 and 422.7 violate the First Amendment. They argue that these statutes are unconstitutionally vague, overbroad, and that they are impermissibly content-based as described in R.A.V. v. St. Paul (1992) 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305. ⁶

A.

After completion of briefing of this case, the United States Supreme Court issued its opinion in Wisconsin v. Mitchell (1993) 508 U.S. 476, 113 S.Ct. 2194, 124 L.Ed.2d 436. There, the Court upheld the constitutionality of the Wisconsin hate crimes enhancement statute, ⁷ which is very similar to section 422.7, against First Amendment and overbreadth challenges. The Court held the penalty enhancement of a crime where the perpetrator intentionally selected the victim on account of race or other protected status was not prohibited by the First and Fourteenth Amendments as the statute singled out bias inspired conduct unprotected by the First Amendment. (Id., at p. ----, ----, 113 S.Ct. at pp. 2196, 2201.) Mitchell recognized that under the enhancement statute "the same criminal conduct may be more heavily punished if the victim is selected because of his race or other protected status than if no such motive obtained." (Id., at p. ----, 113 S.Ct. at p. 2199.) While reaffirming that "a defendant's abstract beliefs, however obnoxious to most people, may not be taken into consideration by a sentencing judge" (id., at p. ----, 113 S.Ct. at p. 2200), the Court nevertheless held that motive properly may be considered by the legislature in determining criminal penalties, reasoning that motive plays the same role in the Wisconsin statute as it does under state and federal antidiscrimination laws. (Id., at p. ----, [17 Cal.App.4th 1331] 113 S.Ct. at p. 2200.) Mitchell is dispositive of appellants' First Amendment and overbreadth challenges to section 422.7.

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The Supreme...