Opinion
A151284
10-04-2018
THE PEOPLE, Plaintiff and Respondent, v. RICHARD O'HARA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. SC194904)
After threatening Latino residents of his apartment complex, defendant Richard O'Hara set fire to his own apartment. A jury convicted him of one count of arson of an inhabited structure and found true the allegation that he committed the crime because of the victim's race. On appeal, he claims that the hate-crime enhancement must be reversed due to the individual or cumulative effect of two instructional errors, both involving the required showing of motive for the enhancement. We find no error and affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
A. The Fire at the Apartment Complex.
During summer 2015, O'Hara lived in an apartment complex in San Rafael. Around 10:00 p.m. on August 26, R.S., who lived in the apartment immediately above O'Hara's with her children, heard O'Hara start "to make a lot of noise." As the noise escalated, she heard him yelling "insults against Latinos."
R.S. called the police, and in response to her noise complaint, two San Rafael police officers arrived at the apartment complex around 2:15 a.m. The officers knocked on O'Hara's door and "rang the doorbell several times," but no one answered. They could hear someone inside the apartment, although the noise "wasn't . . . really loud," and they asked the occupant to "keep down the noise so [they did not] have to come back." There was no response, and they left the scene.
Around 3:45 a.m., O'Hara opened the door to his apartment and "a lot of smoke poured out," and R.S. testified that he then "took off running" toward the street. Shortly before, R.S. had heard him address her by name and tell her she "was going to die." He also said, " 'Fuck you, Latinos,' " and " 'Latinos are going to die.' "
Another police officer was dispatched around 4:15 a.m. based on two calls, one reporting that the noise was ongoing and another reporting the smell of smoke at the apartment complex. When the officer arrived, he could see "black smoke billowing out of the opened door" of O'Hara's apartment. Within a few minutes, "the smoldering from inside the apartment erupted into a fully engulfed structure fire inside the apartment."
Around 5:00 a.m., the police officer spoke to O'Hara, who was sitting at an intersection near the apartment complex. The officer asked O'Hara whether he had done anything in his apartment that might have caused the fire, and O'Hara responded that if the officer "was talking about drugs, no," but that he " 'like[d] candles.' " O'Hara then indicated he believed a lit candle started the fire.
The prosecution's expert in fire investigation testified that there were two ignition points in O'Hara's apartment, one on a mattress in the living room and one on the living-room wall. Both a lighter and an empty gas can were found in the apartment. Although a candle was also found on the floor, the expert ruled it out as an ignition source based on how it had melted and how the materials around it had burned. He also rejected the idea that incense was to blame. After ruling out other possible ignition sources, he concluded that the fire was intentionally set. The defense's fire expert, however, opined that the fire had a single origin on the mattress and that no accelerants had been used.
O'Hara testified in his own defense and gave a significantly different account of the night's events. He claimed that he waited until it got dark to leave several unwanted items on the sidewalk. As he was carrying out his second or third load, he "noticed there were two Hispanic guys in a truck" who had taken some of his things, and they helped him remove the remaining items from his apartment.
O'Hara testified that after these two men left, two other men approached him, one of whom O'Hara knew as Antonio. O'Hara invited Antonio and his friend back to the apartment. Once there, O'Hara lit incense and a nearby candle. As Antonio and his friend were looking at O'Hara's belongings, one of O'Hara's decorative masks cracked. O'Hara claimed that he got angry and yelled, " 'You stupid assholes. You fucking Latinos,' " and began arguing with the two men. O'Hara admitted that the police came and asked him to " 'keep it down' " but claimed that he did not answer the door at Antonio's direction.
On cross-examination, O'Hara suggested that calling the men "Latinos" was not offensive, saying, "Well, they were Latinos. I didn't call them wetbacks," the term he would have used "if [he] was going to be derogatory or racist."
According to O'Hara, his dispute with the other two men eventually became physical, and Antonio's friend punched O'Hara in the face. O'Hara tried to cover his face with a pillow "because [the other man's] punches were pretty severe" but soon lost consciousness. When he woke up, "something burned [him] on the back of [his] neck." He saw fire throughout his apartment, and he left as quickly as he could. He did not call 911 or attempt to warn his immediate neighbors, however, and instead ran into the street to try to flag down a passing car after he was unable to rouse the apartment manager.
B. Other Evidence of O'Hara's Hostility Toward Latinos.
H.R., another resident of the apartment complex, testified about an encounter he had with O'Hara about two months before the fire. H.R. was in the complex's courtyard playing with his young son when O'Hara exited his apartment, "swearing and saying things against Latinos." H.R. testified that O'Hara stated, "Fucking Latinos," and stuck up his middle finger. O'Hara then grabbed H.R.'s son's bicycle and threw it at H.R. but missed. Next, O'Hara approached H.R. and punched him in the face two or three times, cutting H.R.'s lip and making him "dizzy." O'Hara took the bicycle and left, and H.R. called the police.
At trial, O'Hara claimed that the confrontation began when he walked by H.R. and H.R. said, " 'Die faggot.' " O'Hara testified that he "tried to confront" H.R., and H.R. picked up the bicycle "and held it up to, like, fend [O'Hara] off." Afraid that H.R. was going to throw the bicycle at him, O'Hara grabbed it, starting "a tug-of-war" over it.
The police officer who interviewed H.R. after the incident confirmed that H.R. had "swelling and a small cut on his lip and chin." The officer also spoke to O'Hara, who admitted to a "confrontation" with H.R. during which they "engaged in a tug-of-war match over the [bicycle]." O'Hara denied assaulting H.R., however, and claimed that "he was being ganged up on by the Hispanic population in the . . . area where he was living" and "was tired of them harassing him."
C. The Verdict and Sentencing.
O'Hara was charged with a felony count of arson of an inhabited structure and a felony count of criminal threats against R.S., as well as a hate-crime sentencing enhancement alleging that he committed both crimes because of the victim's race. The jury convicted him of arson and found that it was a hate crime. The jury was unable to return a verdict on the charge of criminal threats, and the trial court declared a mistrial on that count. The court then sentenced O'Hara to a total term of 11 years in prison, composed of the aggravated term of eight years for arson and the aggravated term of three years for the hate-crime enhancement.
The charges were brought under Penal Code sections 451, subdivision (b) (arson) and 422 (criminal threats), and the hate-crime allegation was made under Penal Code section 422.75, subdivision (a). All further statutory references are to the Penal Code.
II.
DISCUSSION
O'Hara claims that the hate-crime enhancement must be reversed because (1) the trial court erred by giving CALCRIM No. 370, which directed that the prosecution need not prove he had a motive to commit the charged crimes; (2) the instruction on the enhancement itself, CALCRIM No. 1354, impermissibly permitted a true finding even if racial bias played little role in motivating his criminal acts; and (3) these errors were cumulatively prejudicial. We disagree on all counts.
A. The Challenged Instructions and the Arguments on Motive.
The jury was instructed under CALCRIM No. 1354 that, if it found O'Hara "guilty of the crimes charged in Counts 1 and 2, or any of the lesser included offense[s]," it was required separately to "decide whether, for each crime, the People have proved the additional allegation that the crimes committed by [him] were hate crimes." As relevant here, the instruction required a finding that O'Hara "was biased against the victim based on the victim's actual or perceived race or ethnicity," that "[t]he bias motivation caused [him] to commit the alleged acts," and, if he "had more than one reason to commit the alleged acts," that "the bias [was] . . . a substantial motivating factor. A substantial factor is more than a trivial or remote factor."
The jury was also instructed under CALCRIM No. 370 as follows: "The People are not required to prove that the defendant had a motive to commit any of the crimes charged. In reaching your verdict you may, however, consider whether the defendant had a motive. [¶] Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty." O'Hara did not object to either instruction.
In closing argument, O'Hara's trial counsel addressed "[t]he prosecution's theory . . . that the motive [for the arson was] racism." She argued, "[E]ven if you are racist, and even if you are a lousy neighbor, even if you are a noisy neighbor, even if you are not Mr. Rogers, why would you light your own house on fire, burn up everything you have, to get even with the neighbors? That doesn't make any sense. It defies common sense. So we can cross off motive."
In rebuttal, the prosecutor argued, "[Counsel] . . . said that I've got to prove motive. That's, actually, not the case. Instruction 370 tells you I don't have to prove motive in these cases. [¶] I did give you a motive through the hate crime, but motive is not something that I have to prove at all. Just the elements that I gave you." The prosecutor then argued at length that O'Hara was motivated by racism, stating, "Yes, it's irrational to set your own place on fire and to be a racist, but that's what he does."
B. The General Legal Standards.
Under section 422.75, subdivision (a), "a person who commits a felony that is a hate crime . . . shall receive an additional term of one, two, or three years in the state prison, at the court's discretion." "Hate crime" is defined as "a criminal act committed, in whole or in part, because of one or more of" an enumerated list of "actual or perceived characteristics of the victim," including race or ethnicity. (§ 422.55, subd. (a).) In turn, " '[i]n whole or in part because of' means 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).)
We review claims of instructional error de novo " 'to determine if there is a reasonable likelihood the jury applied the challenged instruction in an impermissible manner.' " (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1217; People v. Ghebretensae (2013) 222 Cal.App.4th 741, 759.) " ' "[T]he correctness of jury instructions is to be determined from the entire charge of the [trial] court, not from a consideration of parts of an instruction or from a particular instruction." ' " (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) We also " 'must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.' " (People v. Richardson (2008) 43 Cal.4th 959, 1028.) O'Hara did not object to the challenged instructions, but we will review his claims on the merits because he argues that the purported errors affected his constitutional rights. (See § 1259.)
As a result, we need not address O'Hara's claim that his trial counsel rendered ineffective assistance by not objecting to the instructions at issue.
C. There Was No Instructional Error.
1. The claim involving CALCRIM No. 370.
O'Hara first contends that the trial court erred by giving CALCRIM No. 370 "because motive is one of the elements of a hate crime as defined in . . . section 422.56." We are not persuaded.
We begin by agreeing with O'Hara that the hate-crime enhancement requires proof of motive. The relevant statutes provide that a defendant must have a "bias motivation" that causes him or her to commit a crime for it to qualify as a hate crime (§ 422.56, subd. (d); see §§ 422.55, subd. (a), 422.75, subd. (a)), and the Attorney General concedes proof of motive was required to establish that the arson was a hate crime.
O'Hara fails to convince us, however, that the trial court erred by giving CALCRIM No. 370. People v. Snow (2003) 30 Cal.4th 43 (Snow) rejected a similar claim of instructional error. The Snow defendant contended that it was error to give CALJIC No. 2.51, which provides that "motive 'is not an element of the crime charged and need not be shown.' " (Snow, at p. 97.) He claimed the instruction was inconsistent with a special-circumstance instruction requiring a finding that the victim was " 'intentionally killed for the purpose of preventing [the victim's] testimony in a criminal proceeding.' " (Id. at pp. 97-98.) The Supreme Court determined there was no inconsistency because CALJIC No. 2.51 referred to " 'the crime charged,' i.e., murder, and not to the special circumstance allegation." (Snow, at p. 98.) Likewise, the motive instruction here referred to "a motive to commit any of the crimes charged," not to a motive to satisfy the enhancement allegation.
People v. Maurer (1995) 32 Cal.App.4th 1121, the main decision on which O'Hara relies, is inapplicable. In Maurer, the Court of Appeal reversed convictions for misdemeanor child annoyance because it determined that CALJIC No. 2.51 was inconsistent with the instructions on that crime, for which a required element is that the act be " 'motivated by an unnatural or abnormal sexual interest in [the victim].' " (Maurer, at pp. 1125, 1132.) But Maurer does not support O'Hara's position because that decision did not involve an enhancement allegation.
We are aware that the bench notes to CALCRIM No. 1354, citing Maurer, direct that CALCRIM No. 370 should not be given in conjunction with the hate-crime instruction "because motive is an element of this crime." While the best practice may be to modify an instruction on motive to explicitly state that it does not apply to enhancements requiring proof of motive (see People v. Maurer, supra, 32 Cal.App.4th at p. 1127), Snow establishes that it is not error to omit such language. --------
In any case, Snow concluded that there was no reasonable likelihood that the jurors thought they could find the special-circumstance allegation true without proof of motive even if they believed that the motive instruction applied to the allegation. (Snow, supra, 30 Cal.4th at p. 98.) The Supreme Court determined that there was no such likelihood because the jurors "were repeatedly and expressly instructed to find [that] allegation true only if each element, including the purpose of preventing the victim's testimony, was proved beyond a reasonable doubt." (Ibid.) The jury here was similarly explicitly instructed under CALCRIM No. 1354 that it had to conclude that O'Hara harbored racial or ethnic bias and "[t]he bias motivation caused [him] to commit the alleged acts." And contrary to O'Hara's suggestion otherwise, the prosecutor's statements in rebuttal recognized the distinction between the charged crimes, for which motive did not need to be proven, and the hate-crime enhancement, for which it did. Thus, consistent with Snow, we conclude that there is no reasonable likelihood the jury construed CALCRIM No. 370 to permit a finding that the arson was a hate crime even absent proof of a discriminatory motive.
2. The challenge to CALCRIM No. 1354.
Next, O'Hara claims that CALCRIM No. 1354 impermissibly reduced the prosecution's burden of proof as to the hate-crime enhancement because it defined "substantial factor" as "more than a trivial or remote factor." We disagree.
Section 422.56, subdivision (d), which requires that "the prohibited bias . . . be a substantial factor" in causing the offense when "multiple concurrent motives exist," states that it is declarative of "existing law under In re M.S. (1995) 10 Cal.4th 698." In turn, that decision incorporated the "established meaning[] in tort law" of "substantial factor." (M.S., at p. 731 [conc. opn. of Kennard, J.].) The definition is " 'a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical.' [Citation.] Thus, 'a force which plays only an "infinitesimal" or "theoretical" part in bringing about injury, damage, or loss is not a substantial factor.' " (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79.)
O'Hara does not contest that CALCRIM No. 1354's definition of "substantial factor" accurately incorporates the statutory language and decisional law. Rather, he argues that this definition is "constitutionally inadequate" because it "allowed the jury to find racial bias when it was a factor only slightly more than trivial or remote." He provides no authority for the assertion that this standard is unconstitutional, however, and we are aware of none. He also contends "that the jury should have been instructed that the term [substantial factor] means 'real, true, considerable in amount, value, or the like, firmly established, solidly based.' " (Quoting People v. Barksdale (1972) 8 Cal.3d 320, 328.) Barksdale interpreted the word "substantial" as used in statutes prohibiting abortions unless there was a "substantial risk" of grave harm to the mother's health. (Id. at pp. 325-328.) But whatever "substantial" may mean as a measure of probability does not bear on the definition of "substantial factor" in the causation context, and we therefore decline to adopt Barksdale's language. In sum, O'Hara fails to demonstrate any error involving CALCRIM No. 1354.
3. The claim of cumulative error.
Finally, O'Hara argues that the cumulative effect of the instructional errors he identifies requires reversal of the hate-crime enhancement. We disagree that any errors occurred, and we therefore reject this claim as well.
III.
DISPOSITION
The judgment is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Dondero, J.