People v. Carr

• Decision Date: 20 June 2000
• Docket Number: No. G024951.,G024951.
• Citation: 81 Cal.App.4th 837,97 Cal.Rptr.2d 143
• Parties: The PEOPLE, Plaintiff and Respondent, v. Daniel CARR, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

97 Cal.Rptr.2d 143

81 Cal.App.4th 837

The PEOPLE, Plaintiff and Respondent, v. Daniel CARR, Defendant and Appellant.

No. G024951.

Court of Appeal, Fourth District, Division 3.

June 20, 2000.

Kevin G. Little and Sara Stander, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General,

Laura Whitcomb Halgren and Steven T. Oetting, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

BEDSWORTH, J.

Daniel Carr appeals his conviction for burning a cross on another person's property without authorization. (Pen.Code, § 11411, subd. (c).)¹ Carr contends the court and prosecutor impermissibly undermined his efforts to show the cross burning was authorized. He also faults the court for disallowing his intoxication defense. We find no merit in Carr's intoxication defense, and even less — and that is exactly what we mean — in his argument that one person can "authorize" victimization of another.

David Shostak is Jewish. On the night of May 19, 1998, he was at his Huntington Beach home with his wife Barbara, their 15-year-old son Jarod, and another son. David was just about to turn in when he noticed flames in his yard. When he looked outside, he saw a seven-foot cross burning on the side of his house. He sprinted to the cross, knocked it to the ground and extinguished the flames with his garden hose. Barbara, meanwhile, called 911.

David testified he was very upset when he saw the cross, and Barbara said her reaction was shock, horror and disdain. She said the cross burning was hateful and unlike anything she had ever experienced.

An investigation into the matter led the police straight to Carr. A high school senior at the time, he had bragged to friends about burning a cross on "some Jew's lawn." He also responded with glee when shown a newspaper article about the incident. When the police searched his bedroom, they found Nazi paraphernalia and an American flag containing the initials S.W.P., which, according to an expert on racist ideology, stand for Supreme White Power.

Carr told police that on the night in question, he was drinking beer in a park with Derrick Yates and Dick Rutherford, who are friends of Jarod Shostak. At one point, he suggested that they burn a wooden cross he had built. Yates said they should burn it at Jarod's house, because the Shostaks are Jewish. Carr thought that was a good idea, so they retrieved the cross and, while Rutherford and Yates looked on, Carr placed it against the Shostak house and set it on fire. Carr told police he did it to show his "white power beliefs."

At the time of trial, Yates had pleaded guilty to reckless burning. Testifying for the defense, he said he was friends with Carr and Jarod Shostak, but those two did not know each other. He and Carr had talked about burning the cross at the beach. However, Jarod subsequently asked Yates to burn the cross at his house because he was mad at his parents. A few days later, while he was in the park with Carr and Rutherford, he mentioned Jarod's request. At that point, they decided to burn the cross at the Shostak residence. According to Yates, the burning had nothing to do with the Shostaks' religious beliefs.

Carr told a similar story at trial. He said he planned to burn the cross at the beach in order to get attention and notoriety. But when Yates told him about Jarod's request, they agreed to burn it at the Shostak's house. Carr believed that Jarod had given Yates permission to burn the cross there. Carr knew the Shostaks were Jewish, yet he denied the burning was religiously motivated. While he and Yates torched the cross, Rutherford acted as a lookout. Afterward, Carr ran to a friend's house, changed clothing and then returned to the scene and watched from a distance.

Invoking his Fifth Amendment privilege, Jarod refused to testify at the trial. However, the parties stipulated that one week prior to the incident, Jarod suggested to Yates and Rutherford that they should burn the cross at his house because "he was mad at his parents; he didn't like his curfew and other rules."

I

Carr asserts the court erroneously declined to instruct the jury on the issue of consent, and the prosecutor misstated the law in closing argument,' Both of these assertions are based on the premise that Jarod was legally entitled to authorize the cross burning on his parent's property. We find this premise to be unfounded, and therefore we reject Carr's claims of error.

Carr was convicted of cross burning under section 11411, subdivision (c) [section 11411(c)]. That provision provides, "Any person who burns or desecrates a cross or other religious symbol, knowing it to be a religious symbol, on the private property of another without authorization for the purpose of terrorizing the owner or occupant of that private property or in reckless disregard of the risk of terrorizing the owner or occupant of that private property" shall be punished by a fine and/or imprisonment.

While discussing jury instructions, Carr requested CALJIC No. 1.23, which sets forth the legal elements for consent.² Noting that lack of authorization is an element of section 11411(c), Carr's attorney stated, "I think authority is akin to consent." The prosecutor disagreed, claiming the two concepts are not the same. The prosecutor also pointed out the term consent does not appear in section 11411(c). In the end, the court declined to give CALJIC No. 1.23 and instead instructed that the cross burning simply had to be conducted "without authorization."

Both parties argued this issue to the jury. While the prosecutor claimed Jarod "can't give authorization to commit this crime," defense counsel argued there was nothing in the statute which prohibited him from doing so. He argued, "15 year olds can't do a number of things. They can't drive cars and things like that. But one thing they can do is consent to the exercise of ... First Amendment rights. That's why this statute is crafted like this. That's why this law addresses this."

Picking up on this theme, Carr asserts on appeal that Jarod was legally entitled to authorize the cross burning because section 11411(c) "contains no language limiting the means by which or persons from whom authorization may be obtained." It is true there are no express limitations on the term authorization in the statute. However, that does not mean, as Carr maintains, that the Legislature intended the term to have a broad and limitless meaning.

Section 11411(c) was enacted to ensure that "every person regardless of race, color, creed, religion, gender, or national origin, [is] secure and protected from fear, intimidation, and physical harm caused by the activities of violent groups and individuals." (§ 11410.) Particularly, the statute was designed to curtail expressive conduct which conveys the message of racial hatred. (In re Steven S. (1994) 25 Cal. App.4th 598, 31 Cal.Rptr.2d 644 [upholding constitutionality of the statute].)

Obviously, these objectives are best achieved by placing some limitations on the term authorization. For if anyone, for any reason, could authorize a cross burning on another's property, citizens would not be safe from the terror this act induces. The question becomes where to draw the line in terms of deciding the circumstances under which authorization may be given.

In deciding this issue, it is important to consider that the law has traditionally viewed the defense of consent in very restrictive terms.³ In fact, consent is not a defense to most crimes. (See 1 Witkin & Epstein, Cal.Criminal Law (2d ed. 1988) Defenses, §§ 257-258, pp. 294-296; 1 LaFave & Scott, Substantive Criminal Law (1986) Justification and Excuse, § 5.11, pp. 687-688.) An exception is made when consent negates an element of the charged offense. (Ibid.) However, even in these instances, permission for the alleged criminal act must be obtained from the victim. (Ibid.) Carr does not cite any cases in which consent from a third party has constituted a valid defense to a crime.

Instead, Carr directs our attention to cases arising under the Fourth Amendment. He notes that in certain circumstances, third parties, even teenagers, can consent to the search of another's property. (See, e.g., People v. Hoxter (1999) 75 Cal.App.4th 406, 89 Cal.Rptr.2d 259.) But consenting to a search and consenting to a crime are not the same, particularly in the context of third-party consent. When a third party consents to a search of another person's property, it allows the police to transgress that person's privacy in order to look for evidence of a crime. But when a third party consents to a criminal act against another person, the victim may be subjected to great harm. While society may be willing to accept the idea that a person might empower someone to exercise control over another's property, we see nothing to suggest it is ready for the idea that anyone can ever empower a person to victimize someone else. Where, as here, it is clear that the party ostensibly consenting was aware of the criminal act intended, we would not have thought such "authorization" could be seriously argued.

Such an argument was put forth in Gonzales v. State (Tex.Cr.App.1996) 931 S.W.2d 574. The defendant there was convicted of capital murder for committing a killing in the course of a burglary. On appeal, he claimed there was insufficient evidence to support the burglary finding because the murder victim's teenage daughter, a coconspirator in the killing, had given him permission to enter the victim's house. In other words, he argued the daughter's consent vitiated a necessary element for burglary. The court was not persuaded. Because the daughter was aware of the defendant's illegal purpose in entering the house, the court found she was unable to give valid consent to the entry. (Id. at pp. 575-576; see also Fotopoulos v....