Steven S., In re
| Decision Date | 02 June 1994 |
| Docket Number | No. A060848,A060848 |
| Citation | 31 Cal.Rptr.2d 644,25 Cal.App.4th 598 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 63 USLW 2015 In re STEVEN S., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. STEVEN S., Defendant and Appellant. |
Jean Allan, San Francisco, under appointment by the Court of Appeal, for defendant and appellant.
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., Clifford K. Thompson, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.
This appeal challenges the constitutionality of a statute making it a crime to burn a cross on the private property of another for the purpose of terrorizing the owner or occupant or in reckless disregard of that risk. We uphold the statute, concluding it is neither overbroad nor vague, is not an impermissible content-based prohibition on speech, and does not violate equal protection.
Steven S. participated in an incident of cross burning involving two sets of neighbors--the Fosters and the Hepburns--in the Humboldt County town of Manila.
Ernest Foster is African-American. His wife, Leanna Foster, is White. They lived next door to Jerry and Tina Hepburn, a fence separating their houses. The Fosters and Hepburns were on good terms; they occasionally socialized and babysat for each others' children.
On the afternoon of September 13, 1991, which was a Friday, the Hepburns had four visitors: Ed Pratt, John Branson, 16-year-old Steven S., and another teenager named Steven C. Someone suggested playing a Friday the 13th joke on the Fosters. The two teenagers--with assistance from the Hepburns' six-year-old son Buck--filled a paper bag with dog feces, and one of them placed it on the Fosters' porch and set it on fire. Responding to a knock at her door, Leanna Foster emerged in a panic and put out the fire while the pranksters watched and laughed.
Next, Jerry Hepburn telephoned a restaurant and ordered pizza for delivery to the Fosters. The deliveryman did not appear until after the cross burning.
Branson arrived at the Hepburn residence following the dog feces incident. Told of the prank, he said, "Let's play a joke on the black man," and he suggested, "You can burn a cross." Everyone present, including Steven S., responded with enthusiasm.
Steven S., Steven C., and Buck built a cross with wood and nails. The two teenagers placed the cross in the Fosters' yard just past the fence and doused it with charcoal lighter fluid. One of them set it on fire. Pratt telephoned the Fosters and told Ernest, "Something is burning in your yard." The Fosters looked out a window and saw the burning cross, and Ernest summoned the police.
Leanna was extremely frightened by the cross burning, taking it as a threat to her life. For three days she spoke to nobody and, except for a short trip to a market, stayed in her house with the curtains closed. She was afraid to answer the telephone for fear of threats by the perpetrator.
The Hepburns eventually apologized to the Fosters for the incident, and the families resumed neighborly relations. The Hepburns claimed the cross burning was merely a practical joke and was not racially motivated.
Steven S. had previously been declared a ward of the court (Welf. & Inst.Code, § 602) and had been placed on probation. An amended petition alleged he burned or desecrated a cross in violation of Penal Code section 11411, subdivision (c), 1 and violated his probation. 2 The court found the allegations were true and retained Steven as a ward. The court placed him on probation with the condition that he serve 160 days in juvenile hall, with 120 days suspended and the last 15 days on outside work service. 3
Section 11411, enacted in 1982, proscribes various acts of racial, ethnic, and religious terrorism. Subdivision (c) of the statute 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" is guilty of a crime, which may be prosecuted as a misdemeanor or a felony. Subdivision (d) defines " 'terrorize' " as "to cause a person of ordinary emotions and sensibilities to fear for personal safety." (§ 11411, subd. (d).)
Underlying the statute is a codified legislative declaration that "it is the right of every person regardless of race, color, creed, religion or national origin, to be secure and protected from fear, intimidation, and physical harm caused by the activities of violent groups and individuals." (§ 11410.) A Senate Judiciary Committee report states, "The purpose of this bill is to curb Ku-Klux-Klan type violence." (Sen.Com. on Judiciary Analysis of Sen.Bill No. 267 (1981-1982 Reg.Sess.) as amended Mar. 16, 1981, p. 2.)
Steven asserts multiple constitutional challenges to section 11411. He contends it is overbroad both facially and as applied, is an impermissible content-based prohibition on speech, is void for vagueness, and denies equal protection.
We begin by placing the constitutional issues in their proper context. The conduct that subdivision (c) of section 11411 proscribes is not pure speech, but expressive conduct. Cross burning conveys a message--the Ku Klux Klan's creed of racial hatred. 4 As such, it implicates the First Amendment's guarantee of freedom of speech. (R.A.V. v. St. Paul (1992) 505 U.S. 377, ---- - ----, 112 S.Ct. 2538, 2547-2549, 120 L.Ed.2d 305, 323-325; Texas v. Johnson (1989) 491 U.S. 397, 404-406, 109 S.Ct. 2533, 2539-2540, 105 L.Ed.2d 342.
But an unauthorized cross burning on another person's property, which we shall call "malicious" cross burning for shorthand purposes, as distinguished from a ritual cross burning at a Klan gathering, does more than convey a message. It inflicts immediate injury by subjecting the victim to fear and intimidation, and it conveys a threat of future physical harm.
Leanna Foster's testimony at Steven's jurisdictional hearing provides a vivid description of the effects of a malicious cross burning on its victim. She said that the incident caused her to feel "[s]cared out of my life" and threatened with vengeance (presumably for her marriage to an African-American):
Because of its dual effects, a malicious cross burning implicates two doctrines that may remove certain speech and expressive conduct from the scope of the First Amendment. The first is the " 'true' threat" doctrine, under which threats of violence may be punished without infringing the First Amendment. (Watts v. United States (1969) 394 U.S. 705, 707-708, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664.) A true threat occurs when a reasonable person would foresee that the threat would be interpreted as a serious expression of intention to inflict bodily harm. (U.S. v. Orozco-Santillan (9th Cir.1990) 903 F.2d 1262, 1265-1266.) The second is the " 'fighting' words" doctrine, which permits punishment for statements "which by their very utterance inflict injury or tend to incite an immediate breach of the peace." (Chaplinsky v. New Hampshire (1942) 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 fn. omitted.) 5 Both doctrines are limited by a rule recently announced by the United States Supreme Court in R.A.V. v. St. Paul, supra, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305, which generally prohibits speech regulation that discriminates on the basis of content.
Steven first contends the challenged statute is not within the scope of the true threat doctrine, and is facially overbroad, because it applies not only where a perpetrator of a malicious cross burning has a "purpose of terrorizing" the victim, but also where the perpetrator acts "in reckless disregard of the risk of terrorizing" the victim. (§ 11411, subd. (c).) According to Steven, a true threat requires intent to terrorize--that is, in the context of the statute, intent "to cause a person of ordinary emotions and sensibilities to fear for personal safety." (§ 11411, subd. (d).)
No such intent requirement appears in the cases prescribing and interpreting the true threat doctrine. The leading case, Watts v. United States, supra, 394 U.S. at pp. 707-708, 89 S.Ct. at p. 1401, confirmed the facial constitutionality of a statute making it a crime to threaten the President (18 U.S.C. § 871) without deciding whether the perpetrator must have intended to carry out the threat. 6 Subsequent decisions have established an objective standard for determining whether there is a true threat: (U.S. v. Orozco-Santillan, supra, 903 F.2d at p. 1265; accord, e.g., U.S. v. Mitchell (9th Cir.1987) 812 F.2d 1250, 1255; United States v. Merrill (9th Cir.1984) 746 F.2d 458, 462.) The only intent requirement is that the offender intentionally or knowingly made a communication that a reasonable person would construe as a threat. (Orozco-Santillan, supra, 903 F.2d at p. 1265, fn. 3; State v. Kepiro (1991) 61 Wash.App. 116, 124-126, 810 P.2d 19, 24.) 7
In the present context, the objective standard developed in the...
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