People v. MacKenzie (34 Cal. App. 4th 1256, 1995)

Opinion

WUNDERLICH, J.

I. Statement of the Case

Defendant Alexander Scott MacKenzie appeals from a judgment entered after a jury found him guilty of a “hate crime,” i.e., brandishing a firearm for the purpose of interfering with the civil rights of Michael Watts because of his race, color, ancestry, or national origin. (Pen. Code, §§ 417, subd. (a)(2), 422.7.) The jury also found him guilty of brandishing a firearm (§ 417, subd. (a)(2)), battery upon a peace officer performing his duties (§§ 242, 243, subd. (b)), resisting an executive officer (§ 69), and falsely identifying himself to a peace officer (§ 148.9). In addition, the jury found true an allegation that defendant personally brandished a firearm. (§§ 667, 1192.7.)

On appeal, defendant claims the “hate crime” statute—section 422.7— violates his constitutional rights to free speech, due process, and equal protection. He further claims his attorney’s failure to seek suppression of evidence denied him effective assistance of counsel. Finally, he claims the court erred in excluding important defense evidence, misinstructing the jury about Michael Watts’s constitutional rights, and failing to instruct on the lesser related offense of resisting arrest.

We find no merit to these claims and affirm the judgment.

II. Facts

A. The Prosecution

Betty and Michael Watts and their three children are African-American. About 7 p.m., on April 26, 1993, Betty and Michael Watts were sitting in their car in front of their duplex at 1379 Essex Way, in San Jose. Two of their children were on the front lawn; the third was in the house.

At that time, defendant, who is Caucasian, drove up next to the Wattses’ car and stopped so close Betty could not open her door. He stared at her, and so Betty opened her window and asked, “ ‘May I help you?’ ” Defendant replied, “ ‘To hell, fuck no[,]’ ” and then, “ ‘Oh, fucking no, you black bitch, I am sick of you mother fucking bozo niggers.’ ” He continued, saying, “ ‘This is my fucking neighborhood, I am sick of you fucking bozo niggers.’ ” Trying to calm defendant down, Betty said, “ ‘If you have a problem with me or my children or anything, you can talk to me, you know, I have been living here for six months. I don’t really know you or anything, but if you have any problems with us, you can talk to me about it[.]’ ”

Michael Watts cautioned his wife against saying anything to defendant, who he said was “ ‘crazy.’ ” He got out of his car and told defendant, “ ‘You can’t talk to my wife like that. Don’t you see my children out here? What is your problem?’ ” Defendant replied that he had no problem with the children but that “ T am sick of you niggers’ ” and “ T want you out of my neighborhood.’ ” Michael answered, “ ‘We live here, too[,]’ ” whereupon defendant said, “ ‘Fine. We can deal with it right now.’ ” Michael told his wife to get the children into the house and instructed his daughter to call “911.”

Defendant drove off and parked next to a fire hydrant about 44 feet away on the wrong side of the street. As Betty entered the house, defendant got out of the car, retrieved a pistol from the trunk of his car, and pointed it at Michael. Defendant then put the gun in his waistband and disappeared down the walkway to the duplexes at 1365 and 1367 Essex Way. The latter belonged to defendant’s mother. Michael retreated into his house. Betty was frantically reporting the incident to the “911” operator. Michael spoke to the operator also.

A short time later, Michael went back outside only to find defendant standing two feet from the front door. They engaged in a heated discussion, some of which was captured on a tape of the “911” call. Michael called defendant a “racist,” a “coward,” and a “faggot.” As the police arrived, Michael said, “ ‘You are going to jail. The police are here now.’ ” Defendant dropped a set of keys on the ground and started walking away. Watts pointed him out to Officer Moses Barreras of the San Jose Police Department.

Officer Barreras approached defendant by the gate between 1379 and 1373 Essex Way and pat-searched him. Defendant asked, “‘Can’t a white man welcome his black neighbors into the neighborhood?’ ” Barreras told him to relax and that he was simply making sure he had no gun. Defendant replied, “ T see what’s happening here. You believe the nigger. I don’t have a gun. I was only trying to welcome them and make them feel at home.’ ” Barreras asked if he had a gun and where he left it. Defendant said, “ ‘That “nigger” is making it up. I don’t have a gun, and if you want, search my car.’ ”

Using one of the keys defendant had abandoned, Barreras opened and searched the car. In the passenger area, he found a .45-caliber ammunition clip and a wallet containing two driver’s licenses bearing defendant’s picture. One was issued to Ralph Preston Collins at 1367 Essex Way, the other to Michael Paul Davis at P.O. Box 1428, Campbell. Defendant said his name was Davis. A registration check revealed that defendant’s car was registered to Ralph Preston Collins at 1359 Essex Way, across the street from 1367. In the trunk of the car, Barreras found another .45-caliber ammunition clip.

Barreras arrested defendant and placed him in a patrol car. Through the open window, defendant yelled, “ ‘Nigger bitch, you’re dead.’ ” A short time later, he scolded Barreras, saying, “ ‘We got ourselves—ourselves a nigger lover. You are just as fucked as those fucking nigger dope dealers from Oakland. Fucking nigger bitch is dead[.]’ ”

Meanwhile, Officers Greg Simmons and James Hagan knocked on the door of 1367 Essex Way. Robert MacKenzie, defendant’s brother, came out. He looked at defendant and then said he had never seen him before in his life and that he did not live there. Defendant yelled, “ ‘I’m a transient. I don’t live here.’ ” However, when informed that defendant had a key to the residence, Robert said nothing more.

Simmons also spoke to Lorraine Shackelford, who lived at 1359 Essex Way, the registered address of defendant’s car. This interview led Simmons to believe defendant lived at 1367 Essex, as suggested by the “Collins” driver’s license. Thereafter, defendant consented to a search of 1367 Essex Way. Using the key, Simmons entered. Underneath the living room couch, concealed by the couch skirt, police found a loaded .25-caliber semiautomatic pistol. There was dust and debris under the couch, but the gun was clean. Michael Watts identified the pistol, which was registered to defendant.

Officer Barreras transported defendant to the police preprocessing center. En route, defendant said, “ ‘Hey, nigger lover, you can’t protect them. You guys, San Jose Police Department, the nigger protectors. I guess since you love them, you are going to beat me up[.]’ ” He also said, “ ‘You know what I hate more than niggers? Nigger lovers. You fucked up, man. You are going to pay for this, nigger lover, [f] Hey, nigger lover, you are going to pay like this—those L.A. cops, but at least I respect them since they beat a nigger[.] ’ ”

When they arrived at the center, defendant spit on Barreras’s leg and said, “ ‘Nigger lover, you are going to die, esse.’ ” Barreras pushed defendant’s head down to prevent him from spitting again. With Officer Hagan’s help Barreras dragged defendant into the center. Barreras strip-searched defendant and smelled alcohol. Defendant resisted fingerprinting and the taking of a blood sample and appeared ready to bite Barreras so the officers had to use force against him. Analysis revealed a blood-alcohol content of .21 percent.

Thereafter, Barreras took defendant to the Santa Clara County jail. Along the way, defendant said, “ ‘You are going to die, mother fucker’ ” and “ ‘If I don’t do it, my brother will.’ ” At the jail, defendant and his brother Robert were momentarily together in a hallway. Defendant threatened Barreras, saying, “[Tjhere’s the fucker who is going to pay. . . . Ten, twenty years, it doesn’t matter, I will get you . . . .” Robert added, “ ‘If he doesn’t I will. It ain’t over yet. You fucked with the wrong family. You cops will pay for this.’ ”

B. The Defense

Lorraine Shackelford, a neighbor and friend of defendant, testified that when she spoke to defendant between 4 and 5 p.m. on the day of the incident, he was drunk.

Thomas Howard, Betty Watts’s boss at the Pizza Hut, testified that she was late for work on that day, left early, and seemed upset about something.

III. Constitutionality of Section 422.7 A. Free Speech

Defendant contends that section 422.7 violates his First Amendment right to free speech because it punishes the expression of unpopular but protected political beliefs and ideas and has a chilling effect on speech by third parties.

In In re Joshua H. (1993) 13 Cal.App.4th 1734, 1742-1753 [17 Cal.Rptr.2d 291], this court concluded that section 422.7 did not violate the First Amendment. Later, in Wisconsin v. Mitchell (1993) 508 U.S._[124 L.Ed.2d 436, 447-448, 113 S.Ct. 2194, 2201], the United States Supreme Court reached the same conclusion concerning Wisconsin’s similar “hate crime” statute. The high court also rejected defendant’s argument that the statute impermissibly chills First Amendment rights. (Id. at p. _ [124 L.Ed.2d at pp. 447-448, 113 S.Ct. at pp. 2201-2202].) For the reasons stated in those cases and because defendant raises the issue “only to preserve it for review by the California Supreme Court[,]” we reject defendant’s claim without further discussion.

B. Vagueness

Defendant contends that section 422.7 is void for vagueness and thus violates his right to due process “because it does not adequately inform anyone of what behavior is prohibited.”

In In re Joshua H., supra, 13 Cal.App.4th 1734, we rejected a similar vagueness claim because the statute had been narrowly construed in People v. Lashley (1991) 1 Cal.App.4th 938, 947 [2 Cal.Rptr.2d 629], to require proof of a specific intent to deprive an individual of a right secured by federal or state law. (See Screws v. United States (1945) 325 U.S. 91, 101 [89 L.Ed. 1495, 1502-1503, 65 S.Ct. 1031, 162 A.L.R. 1330].) “ ‘This does not mean, however, that the prosecution must show that the defendant acted with knowledge of particular provisions of state or federal law, or that the defendant was even thinking in those terms. It is sufficient if the right is clearly defined and that the defendant intended to invade interests protected by constitutional or statutory authority.’ ” (In re Joshua H., supra, 13 Cal.App.4th at p. 1742, quoting Lashley, supra, 1 Cal.App.4th at p. 949.)

Defendant claims that the passage from Lashley quoted above renders the specific intent requirement meaningless. He asserts that intent can be established simply by proving “the defendant deprived the victim of the ‘right to be free of crime.’ ” Thus, the narrow judicial construction, in effect, collapses the determination of the specific intent required by section 422.7 into the determination of mens rea for the underlying offense.

Defendant’s complaint about the practical effect this passage has on proving a “hate crime” does not suggest that as construed, section 422.7 “punishes without warning an offense of which the accused was unaware.” (Screws v. United States, supra, 325 U.S. at p. 102 [89 L.Ed. at p. 1503].) In other words, regardless of whether it is a simple matter to prove the necessary intent, section 422.7 requires it and thereby provides adequate notice of what conduct is proscribed.

C. Equal Protection

Finally, defendant contends that section 422.7 denies him equal protection under the law. He argues that the statute distinguishes between “similarly situated” criminal defendants solely on the basis of their motivation and beliefs. He claims this distinction is constitutionally impermissible because it is irrational and not reasonably necessary to deter racially motivated violent crimes.

Although courts in other jurisdictions have rejected similar claims (see, e.g., State v. Beebe (1984) 67 Ore.App. 738 [680 P.2d 11, 13]; People v. Grupe (1988) 141 Misc.2d 6 [532 N.Y.S.2d 815, 820]), California courts have not addressed an equal protection challenge to section 422.7. We do and reject it.

The constitutional guaranties of equal protection deny states “the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of the statute.” (Reed. v. Reed (1971) 404 U.S. 71, 75-76 [30 L.Ed.2d 225, 229, 92 S.Ct. 251]; People v. Leung (1992) 5 Cal.App.4th 482, 494 [7 Cal.Rptr.2d 290].)

To succeed on an equal protection claim, one must show that “the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.” (In re Eric J. (1979) 25 Cal.3d 522, 530 [159 Cal.Rptr. 317, 601 P.2d 549], italics in original.) In determining if such is the case, we focus on the distinction between groups drawn by the statute and, applying the appropriate level of judicial scrutiny, decide whether the distinction is legally justified. (See Fullerton Joint Union High School Dist. v. State Bd. of Education (1982) 32 Cal.3d 779, 798, fn. 19 [187 Cal.Rptr. 398, 654 P.2d 168].) The propriety of the distinction between groups determines whether they are “similarly situated.”

The first step in the analysis is to decide the appropriate level of judicial scrutiny. (Fullerton Joint Union High School Dist. v. State Bd. of Education, supra, 32 Cal.3d at p. 798.) “Statutes . . . will receive differing levels of scrutiny depending upon the nature of the distinctions they establish. Legislation which creates a suspect classification or impinges on the exercise of a fundamental right is subject to strict scrutiny and will be upheld only if it is necessary to further a compelling state interest. All other legislation will satisfy constitutional requirements if it bears a rational relationship to a legitimate state purpose.” (People v. Silva (1994) 27 Cal.App.4th 1160, 1167 [33 Cal.Rptr.2d 181]; see Board of Supervisors v. Local Agency Formation Com. (1992) 3 Cal.4th 903, 913 [13 Cal.Rptr.2d 245, 838 P.2d 1198]; Fullerton Joint Union High School Dist. v. State Bd. of Education, supra, 32 Cal.3d at pp. 798-799.)

Defendant claims that section 422.7 impermissibly impinges on the fundamental right to have and express bigoted thoughts and beliefs, a right protected by the First Amendment. Accordingly, he suggests that we must apply the strict scrutiny standard. We disagree.

Since it has already been held that section 422.7 does not directly violate a defendant’s First Amendment rights, it appears to follow as a matter of law that it does not “impinge” on a defendant’s fundamental right to express ideas protected by the First Amendment and thereby trigger strict judicial scrutiny. However, even if the statute had not as yet directly passed muster under the First Amendment, we would still reach the same conclusion.

Although section 422.7 punishes only violent conduct, the United States Supreme Court, considering a similar statute, did observe that the underlying reason for the punishment is the defendant’s discriminatory motive in selecting the victim, that is, his or her constitutionally protected bigoted thoughts. (Wisconsin v. Mitchell, supra, 508 U.S-[124 L.Ed.2d at pp. 444-445, 113 S.Ct. at p. 2199].) Thus, as the People here concede, “arguably the statute interferes with bigoted beliefs protected by the First Amendment.”

Nevertheless, “not every limitation or incidental burden on a fundamental right is subject to the strict scrutiny doctrine.” (Fair Political Practices Com. v. Superior Court (1979) 25 Cal.3d 33, 47 [157 Cal.Rptr. 855, 599 P.2d 46].) Both the United States and California Supreme Courts have recognized that “[w]hen the regulation merely has an incidental effect on exercise of protected rights, strict scrutiny is not applied.” (Ibid.) The doctrine is applied “only when there exists a real and appreciable impact on, or a significant interference with the exercise of the fundamental right . . . .” (Ibid., and cases cited therein.)

Section 422.7 does not directly or specifically regulate thoughts or speech, but rather “acts of violence intended to interfere with the victim’s protected rights.” (In re Joshua H., supra, 13 Cal.App.4th at p. 1746.) Obviously, some peaceful conduct is so expressive of ideas that like speech it is entitled to First Amendment protection. (See In re Joshua H., supra, 13 Cal.App.4th at pp. 1746-1747 [giving as examples flag and draft card burning, peaceful demonstrations and picketing, and wearing armbands].) However, “[t]he First Amendment does not protect violence.” (NAACP v. Claiborne Hardware Co. (1982) 458 U.S. 886, 916 [73 L.Ed.2d 1215, 1238, 102 S.Ct. 3409]; See also Roberts v. United States Jaycees (1984) 468 U.S. 609, 628 [82 L.Ed.2d 462, 478, 104 S.Ct. 3244] [“[Violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact ... are entitled to no constitutional protection”].)

Moreover, the violent conduct proscribed by section 422.7 is not “sufficiently imbued with elements of communication to be labeled ‘speech.’ ” (In re Joshua H., supra, 13 Cal.App.4th at pp. 1746-1747.) In other words, by itself violent conduct motivated by bigoted beliefs has little inherent capacity to communicate those beliefs. To an observer, such conduct whether against intentionally or randomly selected victims would look the same. Consequently, although section 422.7 eliminates the use of violent conduct as a possible vehicle to express protected beliefs, its elimination does not represent the sudden loss of potentially expressive forms of conduct. On the contrary, existing penal statutes have already eliminated violent conduct regardless of its motivation from the realm of permissible conduct. In our view, therefore, section 422.7 has no “real and appreciable impact on” and does not cause “a significant interference with” one’s fundamental right to hold or communicate protected ideas and beliefs. (Fair Political Practices Com. v. Superior Court, supra, 25 Cal.3d at p. 47.) Thus, we conclude that the distinction drawn by the statute between random and bigoted perpetrators of violent conduct is not subject to strict judicial scrutiny but violates the equal protection guaranty only if it is not rationally related to a legitimate governmental interest.

In In re Joshua H., we reviewed numerous studies and reports concerning the incidence of hate crimes across the nation, which revealed that such crimes are “at an ‘all-time high’ ” and “more serious than conventional crimes”; the injuries inflicted have “a more debilitating effect on the victim and on members in the victim’s community than does conventional crime”; and the injuries are also “more severe” due in part to the fact that hate crimes are more likely to be committed by strangers and multiple offenders. (In re Joshua H., supra, 13 Cal.App.4th at p. 1748, fn. 9.) We also noted that California’s hate crime legislation was specifically enacted because of the increase in such offenses and the inadequacy of existing laws to deal with it. (Ibid.) We opined that “the government has a legitimate and even compelling interest in distinguishing between acts of violence randomly committed and acts of violence committed because the victim is a member of a racial, religious or other protected group.” (In re Joshua H., supra, 13 Cal.App.4th at p. 1751, italics added; see Wisconsin v. Mitchell, supra, 508 U.S. at p__ [124 L.Ed at pp. 446-447, 113 S.Ct. at p. 2201]; see also R.A.V. v. St. Paul (1992) 505 U.S. 377, 392-393 [120 L.Ed.2d 305, 324-325, 112 S.Ct. 2538, 2549] [recognizes as “compelling” the state interest in ensuring rights of groups subject to discrimination].)

We consider our discussion in Joshua H. persuasive and dispositive on whether the distinction drawn by section 422.7 is legally justified. Specifically, we find the statute rational and reasonably related to legitimate and compelling state interests in both curbing hate crimes and providing protection against the special harms they inflict on individual victims, their communities, and society at large. It follows that perpetrators of violent acts who select their victims because of their status and those who select their victims randomly are not “similarly situated.” Thus, we hold that section 422.7 properly punishes the discriminatory violent offender more harshly than the random violent offender.

IV. Assistance of Counsel

Defendant contends he was denied effective assistance of counsel in that his attorney failed to move to suppress the pistol found by police under the couch in his mother’s house.

Both the state and federal Constitutions guarantee criminal defendants the right to effective assistance of counsel, which generally means “ ‘the reasonably competent assistance of an attorney acting as [a] diligent conscientious advocate. . . .’” (People v. Ledesma (1987) 43 Cal.3d 171, 215 [233 Cal.Rptr. 404, 729 P.2d 839], citation omitted; U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S. 668, 686 [80 L.Ed.2d 674, 692-693, 104 S.Ct. 2052].)

To establish ineffective assistance of counsel, defendant must show that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that but for counsel’s unreasonable conduct, the outcome of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine our confidence in the outcome. (People v. Pensinger (1991) 52 Cal.3d 1210, 1252 [278 Cal.Rptr. 640, 805 P.2d 899]; see Strickland v. Washington, supra, 466 U.S. at p. 694 [80 L.Ed.2d at pp. 697-698].)

Where, as here, a claim is based on trial counsel’s failure to make a motion, a defendant must prove not only the absence of a reasonable tactical explanation for the omission but also that the motion or objection would have been meritorious. (People v. Mattson (1990) 50 Cal.3d 826, 876 [268 Cal.Rptr. 802, 789 P.2d 983].)

Defendant claims counsel could have had no possible tactical reasons for failing to move to suppress the pistol. He acknowledges that Officer Simmons testified that defendant gave his consent to search his mother’s house. However, he argues, in effect, that the evidence adduced at trial establishes as a matter of law that defendant did not have the authority to consent to the search and the police could not reasonably have relied upon defendant’s apparent authority to give consent. We disagree.

In determining whether the police reasonably relied on a suspect’s apparent authority to give consent, we ask whether the facts available to the officer at the moment would warrant in a person of reasonable caution a belief that the consenting party had authority over the premises. (Illinois v. Rodriguez (1990) 497 U.S. 177, 188 [111 L.Ed.2d 148, 161, 110 S.Ct. 2793].)

The record here discloses that defendant told police that he was just trying to “welcome” the Wattses to the neighborhood and make them feel “at home.” The keys defendant abandoned opened his car, which he invited the police to search. Inside the passenger compartment and trunk, police found ammunition clips. They also found two driver’s licenses. One bore his likeness, the name Ralph Preston Collins, and the address of 1367 Essex Way. Defendant’s car was registered to Collins at 1359 Essex Way, across the street. At that address, Officer Simmons spoke with Lorraine Shackelford. After speaking to her, Simmons believed defendant lived at 1367 Essex Way, as suggested by the “Collins” driver’s license. Defendant consented to a search of that address, and his keys included one that opened the door.

In our view, this evidence amply supports both a finding that defendant actually consented to the search and that the officers reasonably believed in and relied upon defendant’s apparent authority to give consent. Given the facts to which the officers would testify, we believe defense counsel could reasonably have decided that there was no reasonable possibility of prevailing if he made a motion to suppress. Indeed, we agree with this assessment.

Defendant, however, notes that he denied living in the neighborhood, Robert MacKenzie, whom police knew lived at the house, told them that defendant did not live there, and when Robert exited the house, he locked the door behind him and told the police officers not to enter. He argues that these facts conclusively render reliance on defendant’s consent unreasonable. This argument is meritless.

When Robert told Officer Barreras “ T have never seen [defendant] before in my life,’ ” defendant said, “ T’m a transient. I don’t live here.’ ” However, given defendant’s self-proclaimed purpose of “welcoming” the Wattses to the neighborhood, and the fact that he possessed a key to the residence and a license with the address on it, and consented to the search, it was reasonable for police to distrust and disregard both Robert’s and defendant’s statements as intentionally misleading. Moreover, given defendant’s key and express consent, the fact that Robert locked the door of the house and told the officers not to enter does not suggest that defendant did not have joint access and control of the premises.

In sum, defendant has failed to establish that counsel’s failure to challenge the search could not have been a reasonable tactical choice and/or that such a challenge if brought would have been successful. Under the circumstances, therefore, we reject his claim of ineffective assistance of counsel.

V. Exclusion of Evidence

Defendant contends the trial court erred in excluding the proffered testimony of Thomas Howard, manager of the Pizza Hut where Betty Watts worked. According to defense counsel, Howard would have said that whenever he spoke to Betty Watts about her inadequate job performance, Michael Watts would later call him a “white suprem[aci]st,” a “white faggot,” and a “white coward.” The trial court considered Watts’s comments irrelevant because defense counsel could not establish that they were made before defendant’s confrontation with Watts.

Defendant argues that regardless of when uttered, Watts’s epithets to Howard were relevant to Watts’s credibility, in that they revealed a prejudice against Caucasians and were inconsistent with Watts’s testimony that he had no such prejudice. Defendant further argues that evidence of Watts’s bias was relevant to show that Watts, not defendant, started the confrontation. He claims that the exclusion of Howard’s testimony violated his constitutional right to confront and cross-examine Watts and thus the trial court’s error is subject to the Chapman harmless-beyond-a-reasonable-doubt standard of review. Alternatively, however, he claims the error is reversible under the general Watson harmless-error test.

We agree that the relevance of Howard’s proposed testimony did not depend on whether Watts’s comments to Howard were made before the confrontation with defendant. Evidence of statements inconsistent with trial testimony and indicative of bias is relevant on the issue of credibility regardless of when the statements were made. The People do not argue otherwise. Nevertheless, we conclude that the exclusion of this testimony does not compel reversal.

We first observe that “white supremacist” is not a racial slur, indicating the speaker’s prejudice against Caucasians. Rather hurling the cliché is a specific way of accusing someone else of being prejudiced against people of color. Thus, Watts’s alleged use of the phrase against his wife’s boss would not so much suggest that Watts is racially prejudiced as to reveal his anger toward Howard based on a belief, reasonable or unreasonable, that Howard’s complaints about Betty Watts were a thin disguise for his racism.

We further observe that the phrases “white coward” and “white faggot” would strongly indicate an intent to insult Howard. The point of their sting is deprecation of character (cowardice) and sexual orientation (homosexuality). Certainly adding “white” to these derogatory words arguably reveals some racial animus toward Howard. However, in light of the context in which they were uttered, the insults are not strong evidence of a generalized prejudice against Caucasians, let alone a prejudice so powerful that for no other reason, Watts would precipitate a racial confrontation with defendant, then concoct a plan to have defendant falsely arrested and prosecuted for initiating it.

Nor do these epithets have a great tendency to impeach Watts’s testimony that he does not “have a problem” with other races. Indeed, if he did, one would have expected it to surface verbally during the confrontation with defendant, which was based solely on race. However, Watts did not use racially pejorative names or make racially specific insults. On the contrary, Watts generally described him as a “racist,” a “coward,” and a “faggot.”

We next point out that the purpose of establishing Watts’s racial bias and impeaching his statement of racial tolerance was to suggest that Watts fabricated the testimony that defendant brandished a pistol, for only Watts testified that defendant did so.

Watts testified that defendant retrieved a pistol from the trunk of his car. After pointing it at Watts, defendant retreated toward the entrance to his mother’s duplex. Shortly thereafter, defendant came onto the walkway of the Wattses’ house. By that time, Betty had made a “911” emergency call, which was taped. In the near hysterical exchanges between the “911” operator and the Wattses, Betty informed the operator that although she had not seen a gun, her husband told her defendant had one. Michael repeatedly told the operator he had seen defendant with a gun. Michael is also heard shouting at defendant about the gun.

Although defendant at that time denied having a gun, the police found a pistol registered to him underneath a couch in his mother’s duplex. Its clean condition in relation to the dust and debris under the couch indicated to the police that it had recently been placed there. Police also found a magazine for a different caliber pistol in the trunk of defendant’s car.

Defendant’s pistol, which Watts identified at the time it was found, and evidence that it had recently been placed beneath the couch and that defendant kept weapons and related items in the trunk of his car supported Watts’s statement on the tape that defendant possessed a gun, as well as his trial testimony that defendant retrieved a gun from his trunk and later retreated toward his mother’s residence.

Moreover, Betty and Michael Watts both testified that defendant called them “bozo niggers” and told them he was “sick” of “you niggers,” whom he wanted out of his neighborhood. This testimony was supported by the testimony of police officers, which reflected defendant’s repeated use of “nigger” in referring to the Wattses, his angry statements about hating “niggers” and hating “nigger lovers” more, his threatening comment “Nigger Bitch, you’re dead,” and his cynical statements that he was only trying to welcome these black people to the neighborhood.

Given the evidence supporting critical aspects of Watts’s testimony about defendant’s conduct and statements, the inherent implausibility that the “911” call to the police was a racially motivated contrivance and that the Wattses’ palpable emotional urgency on the tape was staged, and, finally, the evidence of defendant’s aggressive racial animus toward African-Americans, we find it inconceivable that evidence of Michael Watts’s epithets would have raised a reasonable doubt about the veracity of Watts’s testimony that defendant brandished the very pistol found by the police. Thus, we conclude that under any standard of review, the exclusion of this evidence was harmless.

VI. Instructions

A. Erroneous Definition of a Hate Crime

The court instructed the jury as follows: “In order to prove [a violation of section 422.7], each of the following elements must be proved: HO One. A person committed the crime of [e]xhibiting a firearm, to wit: violation of Penal Code section 417 [subdivision] (a)(2); [