Opinion
D080765
08-21-2023
In re D.J., a Person Coming Under the Juvenile Court Law. v. D.J., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
Patrick Dudley, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, Britton B. Lacy and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. J244273, Rohanee Zapanta, Judge. Affirmed.
Patrick Dudley, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, Britton B. Lacy and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
CASTILLO, J.
INTRODUCTION
The trial court sustained a petition alleging minor, D.J. (Minor), unlawfully assaulted a neighbor with a deadly weapon (Pen. Code, § 245, subd. (a)(1) (future undesignated references are to this code)) and found true two hate crime allegations (§ 422.75, subds. (a), (b)). Minor challenges only the true findings on the hate crime allegations. She contends the trial court violated her due process rights and abused its discretion by excluding testimony from a psychologist about Minor's personality profile to explain motivating factors, other than race, for committing the offense. Minor also contends there was insufficient evidence to support the true findings on the hate crime allegations. We disagree with both contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Prosecution Case
R.D., who is African American, lived with her younger sister, A.D., and their mother (Mother) in an apartment complex. She and her family had several arguments with Minor's boyfriend before April 16, 2022. Minor's boyfriend used the N-word aggressively during these exchanges.
The arguments with R.D.'s family often started because the boyfriend's sister and her friends played loudly by the stairs to R.D.'s apartment. Mother would yell at the boyfriend's sister for being disruptive and either the boyfriend or his father would come over. Minor was with her boyfriend during these incidents when he said the N-word. She stood by and watched without showing displeasure when he used the racial epithet.
On the morning of April 16, 2022, R.D. and A.D. were walking their dog in the apartment complex parking lot when they saw Minor, her boyfriend, the boyfriend's sister, and their stepmother. A.D. and Minor started arguing about how Minor looked at A.D. Minor called A.D. and R.D. the N-word two or three times. The boyfriend also aggressively called A.D. a hooker and the N-word several times.
A neighbor heard yelling and screaming from the parking lot. He saw a Black girl walking her dog as another group of people, including Minor and her boyfriend, got into a car. He heard Minor, her boyfriend, and his mother say the N-word multiple times during the verbal altercation. Minor used the N-word two or three times in anger.
Later that evening, the same neighbor heard more screaming. When he looked, he saw "two [B]lack girls getting in a car and two little [W]hite girls running back to their apartment." Minor and her boyfriend ran out of their apartment toward the Black girls' apartment.
R.D., Mother, and A.D. said they were walking up the stairs to their apartment on April 16, 2022, when Minor, her boyfriend, the boyfriend's father, and some other adult men walked toward their apartment. Minor and her boyfriend ran up to them and asked who hit the boyfriend's sister.
Minor had a long silver object (later determined to be a hard plastic drainage grate) in her hand. She swung the object at Mother several times as they argued. Mother told Minor to" 'put the bar down.'" R.D. stepped between Mother and Minor, and argued with Minor. R.D. and Minor pushed one another. During the exchange, the boyfriend flashed a knife. R.D. felt pressure on her back left side as the boyfriend said, "[N-word] bitch." R.D. thought the boyfriend punched her. But R.D. heard people screaming that he stabbed her and she felt blood when she fell to the ground. R.D.'s stab wounds were life threatening and she was hospitalized for two days.
R.D. did not hear Minor say the N-word during the stabbing incident. However, Minor did not show shock or concern when her boyfriend presented the knife. Minor was aggressive the entire time. Minor and her boyfriend ran off after the incident.
While in juvenile hall, Minor became unhappy with an officer of African descent who told her several times to finish a phone call. Minor went to her room and covered the window in her door. When another officer told her to uncover the window, Minor said she did not want the first officer looking at her. Another juvenile of African descent laughed loudly. Minor, referring to the first officer, said "Is that Black bitch laughing at me?" Aside from those words, the testifying officer did not notice negative encounters between Minor and other youth. She observed positive interactions between Minor and youth of African descent.
B. Defense Case
The boyfriend's sister was very close to Minor. They were like sisters. The boyfriend's sister and her friend said the Black girls were mean and told them to be quiet at the pool.
On April 16, 2022, the boyfriend's sister and a couple of friends were walking to the boyfriend's house when Mother and her daughters drove up next to them. The older daughter got out of the car. Mother and the other daughter said, "Don't hit her." But the older daughter pushed the boyfriend's sister against the car and punched her. The older daughter hit the boyfriend's sister's head on the car.
R.D. testified that she yelled at the boyfriend's sister and her friends earlier in the day to get off the stairs because they make a lot of noise. R.D., A.D., and Mother denied they had an altercation or confrontation with the boyfriend's sister before the incident on the stairs. They denied that Mother stopped the car next to the boyfriend's sister or that R.D. got out and punched the boyfriend's sister in the head. Mother said the boyfriend ran up to their house saying that her niece and the boyfriend's sister got into an argument.
A neighbor named Kevin was talking to another neighbor around 10:30 p.m. when he heard a car pull up in the parking lot and heard a lot of commotion. He saw Mother and her daughters throw three or four punches at a White girl. The girl, and several other White girls, ran screaming up the path. The girl said she got punched in the face. Kevin said Mother and the daughters were saying the N-word repeatedly at the top of their lungs.
A couple of the children ran to the boyfriend's apartment and told the boyfriend and Minor what happened. The boyfriend and Minor were upset and ran outside.
One of the neighbors called the police, saying he was tired of them "beating up on the neighborhood girls, including his daughter." Mother batted at the neighbor when he said he was calling the police because the girl got "jumped."
A female neighbor also saw Mother and her two daughters on the stairs with the boyfriend and Minor arguing back and forth as three older men stood behind them. She did not watch the incident because she was talking to another neighbor. When she heard a girl say she was stabbed, the neighbor went to help and she put pressure on the wound. Mother was hysterical saying her daughter just got stabbed. She threatened to go after the boyfriend and whomever stabbed her. The neighbor, who described herself as a second mom to the boyfriend, said she would be shocked if he called someone the N-word or if he stabbed someone.
The boyfriend's father awoke when the sister came into the house with a knot on her head and crying. The father went outside, saw red and blue lights, and heard a lady screaming to" 'Get him. Throw him to the ground. Get him like you get us.' "
The father denied anyone used racial slurs in his home and denied hearing Minor use racial slurs. He was surprised the boyfriend had a knife.
The father described a prior incident where R.D. and A.D. yelled the term "cracker" at Minor, her boyfriend, and the boyfriend's sister. The father told his family to get in the car and leave to avoid conflict. When the father told R.D. and A.D. to go into their house and leave them alone, they said," 'screw you, KKK dad'" and used racial slurs.
The father also reported seeing and hearing some Black girls asking where one of his daughter's friends was and saying they were going to "get her." This upset his daughter.
The boyfriend's sister had redness on her face near her left eye after the incident. The redness was still present three days after the incident. The sister reported to investigating officers that R.D. assaulted her.
While in juvenile hall, Minor wrote a letter to the boyfriend's sister. Minor referred to the boyfriend's sister as her own sister. She said she landed in juvenile hall because she had the sister's back. Minor did not express surprise that the boyfriend had a knife or stabbed someone. She did not deny her involvement.
A family friend described the boyfriend's family as happy and nice. He never witnessed them be violent or confrontational with anyone. He also denied hearing them use racial slurs. He described Minor as sweet and nice, without a mean bone in her body. He never saw her be violent or confrontational with anyone and had never heard her use racial slurs.
The family friend observed Mother and her daughters fighting with the boyfriend's sister and her friends on a prior occasion. They used the word "blood" and said the sister and friends were going to get "dealt with." He took this as a serious threat. The boyfriend's father tried to intervene and told them to calm down. The family friend testified that his opinion of Minor and her boyfriend would not change if he knew they used racial slurs.
In an interview with a detective after the incident, Mother was very animated in her statement. She used the N-word a lot and cussed. She was angry and emotional.
Minor's half sister also testified on Minor's behalf. She said Minor was close with the half sister's children and was protective of them. The half sister also said Minor had friends of different racial or ethnic backgrounds. She never saw Minor be violent toward anyone. She never heard Minor curse or use racially charged language toward anyone.
C. Trial Court Findings
The People filed a juvenile wardship petition alleging Minor attempted to murder R.D. (Pen. Code, §§ 187, subd. (a), 664, subd. (a); count 1), committed assault with a deadly weapon upon R.D. (§ 245, subd. (a)(1); count 2), and committed assault with a deadly weapon upon Mother (§ 245, subd. (a)(1); count 3). The petition also alleged as to each count that Minor committed a hate crime or voluntarily acted in concert with another person in committing a hate crime (§ 422.75, subds. (a), (b)).
After considering the evidence and arguments of counsel, the court found the People had proven count 3 and found true the enhancement allegations beyond a reasonable doubt. The court dismissed the remaining counts after concluding the People had not proven those counts and allegations beyond a reasonable doubt. The court determined the maximum term of commitment was six years. The court adjudged Minor a ward of the court and committed her to the custody of the Urban Camp program for a period of no more than 120 days.
DISCUSSION
Minor challenges the true finding regarding the hate crime allegations on two grounds. First, she contends the trial court violated her due process rights and abused its discretion when it precluded testimony from a psychologist about Minor's personality profile to "buttress the defense's argument that the substantial factor in motivating her assault . . . was not racial animus, but rather, was a hypervigilant retaliatory response to the assault" on her boyfriend's sister. Second, she contends there was not substantial evidence to support the court's true finding on the hate crime enhancement. Before we consider the merits of these contentions, we set forth the applicable law regarding the hate crime enhancement allegations to frame the issues.
I.
Relevant Hate Crime Statutes
Section 422.55 defines a" '[h]ate crime'" as "a criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim: [¶] . . . (4) Race or ethnicity." (§ 422.55, subd. (a)(3)-(4).)" 'Race or ethnicity' includes ancestry, color, and ethnic background." (§ 422.56, subd. (f).)
Section 422.75 "increases the punishment for a felony motivated by prohibited bias." (People v. Superior Court (Aishman) (1995) 10 Cal.4th 735, 740.) A court must impose "an additional one, two, or three years in the state prison, at the court's discretion" for "a person who commits a felony that is a hate crime." (§ 422.75, subd. (a).) A court must impose "an additional two, three or four years in state prison, at the court's discretion" for a person "who commits a felony that is a hate crime, . . . and who voluntarily acted in concert with another person, either personally or by aiding and abetting another person ...." (Id., subd. (b).)
For purposes of the hate crime statutes, the Legislature defined the phrase" '[i]n whole or in part[,] because of'" as meaning "that the bias motivation must be a cause in fact of the offense, whether or not other causes also exist. When multiple concurrent motives exist, the prohibited bias must be a substantial factor in bringing about the particular result. There is no requirement that the bias be a main factor, or that the crime would not have been committed but for the actual or perceived characteristic." (§ 422.56, subd. (d).) A substantial factor is one that is not merely "theoretical" or "infinitesimal." (In re M.S. (1995) 10 Cal.4th 698, 719-720; People v. Jennings (2010) 50 Cal.4th 616, 643.)
II The Court Did Not Err in Excluding Psychological Profile Testimony
A. Background
At the request of defense counsel, Minor underwent a psychological evaluation "to determine what, if any, mitigating factors exist and should be considered," "to identify any treatment concerns," and to obtain information about Minor's "level of violence risk and what factors would assist in mitigating such risk." A psychologist administered tests, reviewed documents, and interviewed Minor and her mother. Minor witnessed domestic violence in her home from a young age. She viewed herself as the protector of her mother and brother, saying she was the only person who would stand up to the abuser.
As a result of these experiences, the psychologist opined, "In times of conflict, perceived threats to her safety and the safety of those for whom she feels a sense of responsibility, [Minor] is more likely to act out with defensive verbal aggression and engage in defensive-aggressive posturing. Stress and poor coping in combination increases the risk for behavioral acts of violence." The psychologist stated Minor was "biologically predisposed to emotion sensitivity, reactivity, behavioral impulsivity, and likely mental health problems, which were all exacerbated by inconsistent care and a complex trauma history." The psychologist concluded that Minor "was activated into her learned pattern of defensive-aggressive protection by means of verbal hostility and confrontational posturing following an act she perceived was wrong and for someone she cares a great deal."
The People moved to exclude testimony about the psychological evaluation in the defense case in chief under Evidence Code section 352. The People argued the psychological evaluation was not relevant to the issue of whether Minor committed the offenses or whether her actions were motivated by racial bias. The psychologist provided no opinion about whether Minor had a racial bias. The People contended the request to introduce evidence about the report was a back-door attempt to introduce hearsay statements and character evidence. The People argued the court could more appropriately consider the psychological report as mitigation evidence for disposition after adjudication.
Defense counsel asked the court to consider testimony about Minor's personality profile to show the motivating factor for her conduct had nothing to do with racial bias, but was a learned response to threats or acts of violence toward someone she loved. Defense counsel argued this motivation evidence was relevant to defend against the hate crime allegations. Counsel agreed that race was not discussed in the evaluation, but said the examination was to determine "how someone of this personality profile respond[s] to an assault on someone that they cared for."
After reviewing the report and considering the arguments, the court granted the People's request to exclude testimony about the evaluation. The court noted that there were alternative avenues by which the defense could present evidence about motivating factors for the Minor's conduct. The court acknowledged that the defense wanted to introduce the evaluation to address the hate crime enhancement, but noted the burden was on the People to prove the enhancement specific to race. The court excluded the evidence "because it's overbroad. It opens up a number of opportunities to have a trial within a trial as to whether or not there is interpretation as to race and what race would do with no answer to that." The court concluded the determination would "come down to the specific and articulable circumstances and evidence as it relates to the hate crime allegation, which is what the actual statute anticipated and the legislative history anticipated ...."
B. Standard of Review
Minor contends we should review the issue de novo because the exclusion of the psychologist's testimony violated her constitutional rights to due process and to put on a defense. We disagree.
" 'A defendant has the general right to offer a defense through the testimony of his or her witnesses [citation], but a state court's application of ordinary rules of evidence . . . generally does not infringe upon this right [citations].' [Citation.] '[T]he Constitution leaves to [state trial court] judges . . . "wide latitude" to exclude evidence that is "repetitive . . ., only marginally relevant" or poses an undue risk of "harassment, prejudice, [or] confusion of the issues." '" (People v. O'Malley (2016) 62 Cal.4th 944, 995.)
This includes broad discretion to exclude evidence under Evidence Code section 352. (People v. Linton (2013) 56 Cal.4th 1146, 1183.) This section gives the court discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) "This exception to admissibility . . . requires the trial court to complete a weighing process (i.e., probative value versus undue prejudice) that considers the unique facts and issues of the case." (Phillips v. Honeywell Internat. Inc. (2017) 9 Cal.App.5th 1061, 1081.)
"An appellate court reviews a court's rulings regarding relevancy and admissibility under Evidence Code section 352 for abuse of discretion. [Citation.] We will not reverse a court's ruling on such matters unless it is shown' "the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." '" (People v. Merriman (2014) 60 Cal.4th 1, 74.)
C. Analysis
In ruling on the motion to exclude the psychologist's testimony under Evidence Code section 352, the court properly weighed the proposed evidence and determined that any relevance of how Minor's personality profile caused her to respond to a threat to a loved one was outweighed by the risk that such testimony would require an unnecessary trial within a trial about Minor's traumatic history. The relevance of such testimony was minimal because she could, and did, present other evidence about her motivation.
The preclusion of the evidence did not render it impossible for Minor to mount a defense. She presented testimony from friends and family members saying she did not harbor a racial bias. She also presented evidence about her close relationship with the boyfriend's sister from several witnesses. Multiple witnesses also testified about R.D. hitting the boyfriend's sister. Minor's counsel argued this was the sole motivating factor in Minor's conduct, even if Minor did use the N-word earlier in the day.
Because Minor was not deprived of the opportunity to present a defense, the court did not violate her constitutional rights." 'Although completely excluding evidence of an accused's defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense. [Citation.] If the trial court misstepped, "[t]he trial court's ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense." '" (People v. Boyette (2002) 29 Cal.4th 381, 428.) The trial court did not abuse its discretion in excluding testimony about Minor's psychological profile.
Minor suggests for the first time on appeal that the court should have permitted the testimony to show she had a mental condition that impacted her ability to form specific intent for the hate crime allegations because the psychological evaluation indicated she had a "propensity for dissociation in times of heighted stress." Minor did not raise the propensity to dissociate or the inability to form intent for the "substance, purpose, and relevance" of the testimony. As such, this argument is forfeited. (Evid. Code, § 354; People v. Hartsch (2010) 49 Cal.4th 472, 496.) Even if we were to consider the issue, contrary to Minor's contention, the petition did not allege a violation of section 422.7, which would require a showing of specific intent. The petition included enhancement allegations under section 422.75, which does not require specific intent. (Aishman, supra, 10 Cal.4th at p. 740 ["[S]ection 422.75 simply increases the punishment for a felony motivated by prohibited bias, without reference to the perpetrator's seeking any further consequence."].) Therefore, whether Minor had a mental condition that prevented the formation of "specific intent" to commit a hate crime was not relevant.
III
Sufficient Evidence Supported the Hate Crime Allegations
Minor also contends there was insufficient evidence to support the true finding on the hate crime allegations. We disagree.
" 'The same standard governs review of the sufficiency of evidence in adult criminal cases and juvenile cases: we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable fact finder could find guilt beyond a reasonable doubt.'" (In re A.G. (2020) 58 Cal.App.5th 647, 653.) We look for substantial evidence, which is evidence that is "reasonable, credible and of solid value" and we do not substitute our own factual determinations for the factfinders. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.)
In this case, the petition alleged Minor committed the assault with a deadly weapon" 'because of the victim's race, color,'" in violation of section 422.75, subdivision (a). It also alleged Minor "committed and attempted to commit a hate crime and voluntarily acted in concert with another person, either personally and by aiding and abetting another person" within the meaning of section 422.75, subdivision (b).
In support of these allegations, the People presented evidence that the crime was motivated at least in part by race. Minor stood quietly by her boyfriend on several prior occasions when he called the victims the N-word. There was uncontroverted evidence from both A.D. and a neighbor that Minor and her boyfriend used the N-word angrily and aggressively toward A.D. and R.D. the morning before the incident. During the incident, Minor's boyfriend used the N-word just before stabbing R.D. Additionally, Minor referred to an African American guard in juvenile hall as a "Black bitch."
After finding Minor committed an assault upon Mother with the drainage grate, the court stated its findings regarding the hate crime allegations. The court found the witnesses' testimony about Minor's use of the racial slur credible. The court stated, "The totality of the facts and circumstance involving her actions and character revealed her decision to use the N-word and her ability to comprehend the racial significance of the word. The level of emotion displayed by [Minor] as witnessed by both prosecution and defense witnesses revealed the significance of such word and race as it relates to its use and significance that evening. [¶] Therefore, the court finds that in the use of the word and reference to race, [Minor] committed count 3 with a victim's race being a substantial factor in her actions and that it was in concert with another." The court sustained the petition finding true the allegations and the enhancements as to count 3 beyond a reasonable doubt.
The court was not required to believe the defense claims that Minor did not harbor racial animus toward the victims. (People v. Manibusan (2013) 58 Cal.4th 40, 87-88.) The court could reject the defense statements on this issue as not credible. On appeal we do not reevaluate witness credibility. (Id. at p. 87.) Indeed, the court determined the testimony from the defense witnesses showed Minor knew better than to use the N-word.
The record as a whole supports the trial court's findings. The fact that Minor did not herself use a racial epithet during the assault does not mean she was not motivated in some substantial part by racial bias. It is reasonable to infer that Minor accepted or adopted racial bias from how she stood by as her boyfriend used the N-word multiple times in the past. Her adoption of racial bias was seen in her aggressive use of the word toward the victims earlier in the day.
There was substantial evidence for the finding that Minor committed the assault with a deadly weapon because of the victim's race in violation of section 422.75, subdivision (a). There was also substantial evidence that Minor acted in concert with her boyfriend who used the N-word during the incident as he stabbed R.D., which supported the allegation under section 422.75, subdivision (b).
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., IRION, J.