As we reported in March, District Attorney Bonnie Dumanis has charged James Alexander Hardy, a 19-year-old Marine, with the brutal murder of Raymund Catolico, who was found strangled and stuffed under a bathroom sink in his Little Italy apartment in February.

San Diego Superior Court Judge David M. Szumowski arraigned Hardy in February and set his bail at $1 million.

Because Deputy District Attorney Chandra Carle said the victim’s status as a gay man was in part or in whole a motivation for the murder, the murder is charged as a hate crime. Upon conviction of the hate-related murder, Hardy would likely spend life in prison without the possibility of parole.

As I predicted here (see March 2, 2006), DawnElla Gilzean, the public defender representing Hardy, said that the defense expects the evidence to show that Mr. Hardy’s actions were “in no way motivated by Mr. Catolico’s sexual preferences and that his conduct was, in fact, reactive.”

I noted previously that had Hardy killed a woman, not only would the story be a constant item in the news media, but the D.A. would have charged Hardy with first-degree murder, perhaps with special circumstances. Hardy would face the death penalty.

In my previous column, I pointed out the problems a D.A. faces prosecuting gay hate murders and perpetrators like Hardy. At trial, Hardy will appear in court as a clean-cut Marine. The victim made a pass and Hardy acted in self-defense.

As indicated by his lawyer, Hardy may argue that he “reacted” to a pass. He will likely use the so called “gay panic defense.” The idea is to mitigate the charge from first-degree murder to second-degree murder or voluntary manslaughter.

But a case decided in late March should end the practice of allowing the gay panic defense. In short, the court found that no reasonable person would lose control after being called “faggot,” and, by reasonable logic, receiving a pass from a gay man.

In People v. Najera, two men had been drinking rather heavily. As they quarreled, one of the men, Hernandez, called Najera a “faggot.” This prompted Najera to rage and fight and kill Hernandez. A jury convicted Najera of murder, but Najera said that, at best, he committed voluntary manslaughter and the trial judge should have instructed the jury on it. But the appellate court disagreed.

First, the court noted that “voluntary manslaughter is an unlawful killing of a human being without malice … upon a sudden quarrel or heat of passion.” Key to the court’s finding was that “the provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection.”

The test for adequate provocation is objective. So it doesn’t matter how the particular person responds. It depends on how a reasonable person would react in 2006.

What was the provocative conduct in this case? Hernandez called Najera a faggot. “That taunt would not drive any ordinary person to act rashly or without due deliberation and reflection,” the court wrote. And if there was doubt about a pass, the court added that “a provocation of slight and trifling character, such as words of reproach, however grievous they may be, or gestures, or an assault, or even a blow, is not recognized as sufficient to arouse, in a reasonable man, such passion as reduces an unlawful killing with a deadly weapon to manslaughter.”

The California Court of Appeal discussed a case decided several years ago by the California Supreme Court. There, the victim called the defendant a “mother fucker” and taunted him by repeatedly asserting that if the defendant had a weapon, he “should take it out and use it.” The Supreme Court stated such declarations “plainly were insufficient to cause an average person to become so inflamed as to lose reason and judgment,” and held “[t]he trial court properly denied defendant’s request for an instruction on voluntary manslaughter based upon the theory of a sudden quarrel or heat of passion.”

The court found that calling Najera a faggot “was equally insufficient to cause an ordinary person to lose reason and judgment under an objective standard. Najera was not entitled to a voluntary manslaughter instruction.”

Ideally, based upon the finding in the Najera case, no trial judge has to allow the gay panic defense again. Let’s hope so.