Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC066583A
Kline, P.J.
Rosa Adriana Araujo appeals from convictions of three counts of attempting to deter or resisting an executive officer in the performance of duty by means of threats or violence. She contends the trial court erred in denying her requested jury instruction on the “threat” required for this offense and in refusing to permit her brother to testify that he had been threatened by the police in the past, and that her attorney rendered ineffective assistance of counsel in failing to request an interpreter to assist her father during his testimony. We affirm.
STATEMENT OF THE CASE
Appellant was charged by information filed on July 14, 2008, with three counts of attempting to deter an executive officer from performing his duty, or resisting such officer, by means of threats or violence. (Pen. Code, § 69.) The officers named in these counts were San Mateo Police Detective Stewart, San Mateo Police Sergeant Peruzzaro and San Mateo Police Detective Teixeira. It was alleged that the offense in Count 1 was a hate crime. (§§ 422.55, 422.75, subd. (a).)
All further statutory references will be to the Penal Code unless otherwise specified.
A count of making a criminal threat (§ 422) was alleged in the complaint but dismissed before the preliminary hearing.
Jury trial began on November 18, 2008. On November 24, the jury returned verdicts of guilty on the three counts but found the hate crime allegation not true. On January 16, 2009, the court suspended imposition of sentence and placed appellant on probation for three years.
Appellant filed a timely notice of appeal on March 3, 2009.
STATEMENT OF FACTS
On February 20, 2008, appellant’s brother Tizoc Araujo was on probation with a condition permitting police to search his person, vehicle, residence or any area under his control without a search warrant or probable cause, at any time of day or night. At about 10:00 that morning, five officers from the San Mateo Police Department, along with three officers from the San Bruno Police Department, went to the Araujo home in San Bruno to conduct a probation search on Tizoc because he was an investigative lead in a San Mateo burglary case. San Mateo police detective Vince Dutto testified that probation searches are generally conducted with three to six officers, depending on the circumstances.
Because several of the individuals discussed share the same last name, for convenience and ease of reading, this opinion will sometimes refer to the individuals by first name. No disrespect is intended.
Dutto knocked several times and announced the search, and eventually Rosa Araujo, appellant’s mother, came to the window and asked to see “papers.” Dutto explained that he did not need a warrant for a probation search and that he needed to search Tizoc’s room. Rosa told them Tizoc was at the restaurant and they could come into the house only if Tizoc was present and the police had papers. Dutto told her she was obstructing his investigation and he would have to return with an arrest warrant for her. She opened the front door, walked out and said, “go steal.” Dutto told her to wait and show them Tizoc’s bedroom. She came inside, pointed to a door at the end of a hallway and said Tizoc slept there.
In Tizoc’s room, Dutto found a butterfly knife on the floor near the bed, papers bearing Tizoc’s name and the address of the house and, in a closet, a loaded gun. Dutto was not able to unload the gun, which he wanted to do for safety. Another officer, Wong, also tried unsuccessfully to unload the gun, and Dutto shouted to the other officers in the house that they had found a gun.
As Dutto continued to search the room, he heard a female voice yelling at the front of the house, first outside and then inside and coming toward his location. He remembered hearing “fuck you pigs” and “get out of my house.” He heard officers yelling “stop.” Looking out of the bedroom, Dutto saw Detective Stewart facing the living room, with his back to Dutto, and appellant trying to push past him. Stewart grabbed her right arm and turned her around, Detective Teixeira grabbed her left arm, and they started to pull her arms behind her in the position to be handcuffed; appellant was moving her shoulders and body back and forth in what Dutto perceived as resisting being handcuffed. Appellant was yelling “fuck you pigs, let go of me, ” then several times said “nigger, fucking nigger, you nigger, porch monkey.” Dutto had not heard appellant using racial epithets before this point. He saw appellant turn to her right and spit on her own shoulder and saw Stewart put his foot out “real quickly” as though trying to avoid something. Dutto heard the officers tell appellant to “stop” before they grabbed her, and several times during the struggle heard them tell her to “stop resisting.” Dutto had heard obscenity directed at police officers, as well as personal insults, but had never heard anything like the racially charged language appellant used directed at an officer.
Dutto resumed his search, then within another minute looked out and heard different male voices in the living room, yelling “fuck you, get out of my house.” Stewart and Teixeira still appeared to be trying to get control of appellant, who still seemed to be resisting. Dutto could not see Sergeant Peruzzaro. Appellant was “still using the word nigger” and “saying you are assaulting me; you are violating my rights; you are sexually assaulting me; stop raping me.” Dutto heard appellant say “nigger” about 30 times and at one point called Wong a “chink.” At some point he heard her say “187, ” but he did not hear the words before or after. The Penal Code section for murder is “187.” Dutto did not personally observe appellant making threats against the officers to prevent them from performing their duties.
Dutto saw Stewart and Teixeira remove appellant from the residence and Wong put a “spit mask” on her. Dutto explained that a spit mask is a light material that fits over the head and ties at the back, with mesh at the eye area; it is used when a person is spitting to keep the spit from hitting anyone. After she was arrested, appellant said her wrist hurt. Dutto did not see any injury to her wrist or elsewhere on her body. Dutto testified that appellant calmed down once outside her house, struggled a little bit at the police station when pictures were being taken, then stopped struggling.
Sergeant David Peruzzaro testified that he entered the house with Dutto and the other officers and continued to explain the purpose of the search to Rosa. Rosa retrieved something from her bedroom, asked if she could leave, saying she would be right back, and left the house. Peruzzaro stayed mainly in the living room while Dutto went to the back bedroom. Through the front window, Peruzzaro saw appellant walking briskly to the door; she entered, “irate” and “extremely upset, ” yelling “get the fuck out of my house, you fucking pigs.” Appellant demanded to see a warrant allowing the police to enter the residence and as Peruzzaro tried to explain that they did not need one, she repeatedly spoke over him, yelling “fuck you, you fucking pig.” Peruzzaro advised her that she would be arrested if she obstructed the investigation and she continued yelling the same things, then said “something similar to die you fucking pigs, 187 on a cop.” This statement concerned Peruzzaro “because she’s talking about committing homicide on a cop. And 187 of the Penal Code is homicide. So any time I hear that it kind of concerns me.”
Appellant started to walk toward the back of the house and Peruzzaro stepped in front of her, feeling the officers on the scene were at risk because of her refusal to obey his commands, her “very irritable behavior” and “the fact that she threatened basically to kill a cop.” Peruzzaro knew that Dutto was trying to unload a gun he had found. Appellant stopped, made a noise Peruzzaro recognized as gathering sputum in her mouth and spit on him, hitting his right arm and top of his right hand. Peruzzaro had moved a little to his left, trying to avoid being spat on, and appellant continued down the hallway, yelling obscenities, “nigger” and “fucking nigger” at Detective Stewart, who was directly in front of her. Peruzzaro told Stewart to arrest appellant, saw him attempt to put her hands behind her back, saw her pulling away from him and saw Detective Teixeira attempt to assist Stewart. Peruzzaro heard male voices telling appellant to stop resisting.
At this point, appellant’s father and brother entered the house, “extremely irritated, ” yelling “get the fuck out of my house” and demanding to see the paperwork allowing the police to search. Peruzzaro described the father as in his 50’s and stocky, and the brother as in his 20’s and obese. Peruzzaro continued to hear the struggle behind him, with appellant calling the officer a “fucking nigger” and being told to stop resisting, but did not turn to see what was happening. He remembered that there were other officers in the living room but did not remember who they were. Peruzzaro continued trying to explain the situation to the father and brother and at some point they left. The police directed them outside but did not use force to remove them from the house.
Over the course of the incident, Peruzzaro heard officers tell appellant to stop resisting over 10 times. He also heard other officers tell appellant to stop spitting and thought this was both Stewart and Teixeira. Peruzzaro testified that appellant started to use the word “nigger” before Stewart attempted to handcuff her, when he was heading toward her but before he touched her.
San Mateo Police Detective Colin Stewart testified that he saw appellant arrive at the house and enter, “extremely upset, stating get the fuck out of my house, and ranting, and yelling at... Sergeant Peruzzaro.” When Peruzzaro began to explain why the police were there, appellant said Tizoc did not live there and was not on probation. Appellant said, “Die you fucking pig; 187 on a cop.” Since 187 is the Penal Code section for homicide, Stewart took this to mean “die you cop; I’m going to kill you.” Appellant was trying to get to the back bedroom, where Stewart knew there was a loaded revolver, so he took her statements as a threat. Peruzzaro explained to appellant that the police were there for a lawful reason and that she would be arrested if she obstructed the search. Stewart saw Peruzzaro step in front of her to prevent her from going toward the bedroom and Stewart heard her make a spitting noise, although his view of her was blocked by Peruzzaro. Stewart asked Peruzzaro if appellant had spit on him; Peruzzaro said yes and advised Stewart to arrest her.
Stewart attempted to take control of appellant by grabbing her right arm and trying to put her wrist behind her back to handcuff her, but she twisted her body and pulled away. Detective Teixeira came to assist and got control of her left arm, Stewart got her right arm, and appellant turned to Stewart and said, “Fuck you nigger.” Prior to this, appellant’s yelling had not been directed at Stewart. Stewart heard Teixeira tell appellant not to squeeze his hand, and appellant began to twist out of the officers’ grasp. They leaned her against a wall, with Stewart’s chest and shoulders leaned against her to keep her from twisting and each officer holding her in a wrist lock. This is a hold officers are trained to perform, in which the officer bends the person’s wrist while her hand is behind her back, “giving a little twist to gain compliance” while controlling the upper shoulder with another hand. Stewart testified it is a common way to control a person who is resisting, a hold he had used over 400 times. Stewart was six feet, one inch tall and weighed 190 pounds; Teixeira was five feet, eight inches tall and weighed 200 pounds; and appellant was five feet, four inches tall and weighed 160 pounds.
Stewart was able to get the handcuffs on appellant, but she continued to resist, turning her body from left to right, squeezing the officers’ fingers, spitting on them, stomping on their feet and at one point grabbing Stewart’s crotch while her hands were handcuffed behind her. She called Stewart, who is African-American, a “porch monkey, ” told him several times he “needed to go back to Africa” and called him a nigger more than 30 times. The officers repeatedly told her to stop resisting and stop spitting, but she continued.
As the officers started to move appellant out of the house, they saw appellant’s father and brother in the living room with Sergeant Peruzzaro. Stewart was not focused on what they were saying but heard “something to the effect, you better not hurt her.” He and Teixeira moved appellant back to the hallway, at which point she began to yell that they were raping her and sexually assaulting her while also continuing the “nigger assaults.” Stewart saw appellant’s hand on the holster of Teixeira’s gun and saw Teixeira pulling away from her. Teixeira slapped appellant’s hand away, squeezed the back of her neck and told her to stop. At this point appellant seemed to calm down. She did not resist or say anything as Stewart and Teixeira took her out the back door and to the police car. Appellant had no injuries. There was spit on Stewart’s fingers and sleeve and a shoe print on the toe of his left shoe.
Stewart testified that in his career as a police officer, he had had people direct obscenities and, less frequently, racial slurs toward him, and had had people violently resist approximately 30 times, but had never before had a person who was violently resisting use racial slurs toward him. Asked how this was different from other times people had directed racial slurs at him, Stewart explained that he had had people use racial slurs to see how he would react and “goad” him, but this “wasn’t, get off me, you jerk; get off me, you asshole. It was nigger. Many times. It was porch monkey. It was go back to Africa. It was the combination of these racial slurs, not once, but more than 30 times in the course of my contact with her. [¶] There was another officer there, a detective, Detective Teixeira, who is not African-American. And at no time that — during our contact with her, taking her into custody, did she direct any racial comments toward him, but only towards me.” Stewart also heard appellant call Detective Wong a “chink.” Wong was not doing anything to appellant at the time.
San Bruno Police Officer Gene Wong testified that he was attempting to assist Detective Dutto in unloading the gun Dutto had found when he heard a commotion in the hallway, with a female yelling and the sound of a physical fight. Looking out of the bedroom, Wong saw appellant struggling with and spitting at San Mateo Detectives Stewart and Teixeira. Appellant was cursing at the detectives, repeatedly using the words “fuck” or “fucking” and “nigger” and several times the phrase “porch monkey.” Wong saw spit “flying everywhere” and hitting the detectives, so he got a spit hood from his car and put it on appellant. She called him a “chink.”
San Mateo Police Officer Glen Teixeira testified that he was in the garage, checking for people who might be present, when he heard a commotion and a female yelling upstairs. Returning upstairs, he saw Stewart and appellant backing away from him, her back to Teixeira. Stewart spoke a code that told Teixeira he was trying to get hold of appellant. Teixeira grabbed appellant’s left arm and Stewart grabbed her right; she twisted, turned and tried to pull away, screaming “let go of me” and “get your hands off me.” Everything she screamed at Stewart “had the word nigger attached to it” and she “went so far as to say go back to Africa, you have AIDS, don’t touch me you nigger, repeatedly, over and over and over again.” She did not direct any racial slurs toward Teixeira. Teixeira testified that appellant did not grab his crotch.
Teixeira described appellant continuing to resist after Stewart got the handcuffs on her, turning back and forth, yelling at Stewart and at one point spitting on Teixeira’s arm as she turned to the left and on Stewart as she turned to the right. They moved appellant toward the front door, and saw Peruzzaro, some other officers and two very angry and hostile men in the front room. Appellant spit two more times in the air. Teixeira turned her away from the officers and “pushed her up against the wall” to prevent her from spitting on anyone. She was continuing to struggle and Teixeira could hear her father and brother getting more upset, so he and Stewart walked her to the hallway. Appellant yelled that they were assaulting her and raping her. At one point, as they tried to control appellant and move her, Teixeira felt her hands along his waist line and then around the holster of his gun. He stepped back and saw she had a grip on the holster because it extended away from his waist. He slapped her hand off the holster and told her not to grab his gun and to stop resisting, but she ignored him. He squeezed the back of her neck, repeating the direction to stop, and as he applied more pressure, she stopped resisting. One of the San Bruno officers put a spit hood on appellant just before they walked her down the stairs.
Teixeira testified that although he had heard obscenity and racial slurs as a police officer, he had “never heard anyone use a racial term, [use the] word nigger so many times in one particular setting or situation. I’ve never seen any comments directed towards one person, whether it was an officer or [not], to the excess or the amount of times that it was directed toward Detective Stewart. Never in my nine years have I been exposed to any... words like this, to this degree at least.”
San Bruno Police Officer Andrew Harper testified for the defense that he was in the living room when appellant entered the house, arms flailing and screaming “[t]hreats and very, very lewd statements to everyone in the room”: “Fuck you, fucking pigs; this is why people smoke you; fucking die; I’ll fucking kill you; 187 the cops; you pig mother fucker. That sums up the general idea.” Two San Mateo detectives were also in the living room. Appellant was “very threatening, very volatile.” She spit at everyone in the room. Although she did not complete a swing at anyone, there was a point when her arm “made the motion towards my face” and Harper had to step back to avoid her connecting with his face. This was when the two detectives “contained her arms.” Harper testified that it was “obvious at that point she very much needed to be secured” and he was about to grab her, but the detectives got there first.
Appellant’s father, Miguel Araujo, Sr., was working at his restaurant, about three blocks from his house, on the morning of February 20. His wife came in and told him the police were at their home again. He asked if they showed her authorization to come in and she said they did not need it. Miguel Sr. tried to stop appellant from going to the house because she was angry with the police but she did not listen to him. She said she should go first because he did not speak English well. She left and he drove his own car behind her. Miguel Sr. entered the house a little behind appellant. The first thing he heard her say was to ask for the court order to go inside the house. Appellant was waving her hands around and saying things like “fuck you pigs, get out of my fucking house.” He did not remember hearing her using the word nigger or “187 on a pig.”
Miguel Sr. saw three officers push appellant to the wall, two having grabbed her hands and the third having grabbed her hair. He did not think one of these officers was African-American. He saw an African-American officer after appellant was already handcuffed but did not think he had much contact with appellant. Miguel Sr. was asking for the official in charge, trying to “stop the problem.” His older son, Miguel Araujo, Jr., started arguing as the police were pushing appellant through the house but Miguel Sr. did not remember exactly what he said. The police put something like a plastic bag over appellant’s face. Miguel Sr. was feeling “like my life go over” because “I know” appellant was having trouble breathing. He told the police “this is not the way to treat people, even if they got a big mouth like my daughter.” Miguel Sr. did not see appellant spit or stomp on the foot of a police officer.
Appellant’s brother, Miguel Jr., arrived at the house to find several police cars and six or seven officers in the street, so many that they “almost closed off the street.” They did not respond when he asked what was going on and he entered the house, where his father and sister were in the living room, along with five or six police officers. He did not see any African-American officers. Appellant was asking the officers for a warrant; they said no and she told them to “get the fuck out of my house.” Miguel Jr. did not hear her use the word “pig.” Their father was trying to persuade appellant to leave the house. The officers seemed very upset and three of them, none African-American, grabbed appellant and “slammed” her face first against the wall, making a “loud boom.” She started yelling “get your fucking hands off me.” Miguel Jr. thought the officers’ conduct was uncalled for and started yelling for them to “get your fucking hands off her.” Two officers told him and his father to leave or they would be arrested. The officers with appellant moved her into the hallway and Miguel Jr. heard her screaming for help, sounding “like she was being murdered.” She never used any racial epithets or slurs and he was “100 percent sure” she never spit on anyone. Miguel Jr. left because of the police threats and concern for his own and his father’s safety. He did not try to help appellant because he was afraid the police would shoot him.
It was stipulated that if called to testify, a defense investigator would state that in an interview on July 17, Miguel Jr. told him that he saw three or four police officers outside his house; that he rushed up the stairs into the house behind his father; that he saw two officers slam appellant into the wall; that appellant was down on her knees; and that he did not see an African-American officer at the scene. Asked about these statements, Miguel Jr. said the investigator might have misunderstood him: He saw three officers slam appellant into the wall; he did not enter the house with his father; there were six or seven officers outside the house; he did not remember telling the investigator that appellant was on her knees; and he did not see an African-American officer in the living room but thought he saw one outside.
DISCUSSION
I.
Appellant contends that the trial court erred in failing to instruct the jury that her “abusive, obscene and unpleasant speech” was constitutionally protected under the First Amendment if it did not rise to the level of a “true threat.” She urges the jury should have been instructed that appellant could not be convicted if her words and actions together did not “convey a serious gravity of purpose and a likelihood that she would act on those words.” The focus of this argument is on appellant’s statement, “die you fucking pig, 187 on a cop.” As the officers explained in their testimony “187” is the number of the Penal Code section defining homicide.
Section 69 provides, “Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment.”
“A threat, unaccompanied by any physical force, may support a conviction for the first type of offense under section 69. (In re M.L.B. [(1980) 110 Cal.App.3d 501, ] 503-504.) To avoid the risk of punishing protected First Amendment speech, however, the term ‘threat’ has been limited to mean a threat of unlawful violence used in an attempt to deter the officer. (People v. Superior Court (Anderson) (1984) 151 Cal.App.3d 893, 895-898; cf. City of Houston v. Hill (1987) 482 U.S. 451, 460-467 [ordinance prohibiting verbal interruptions of police officers, if not limited to unprotected ‘fighting words, ’ is unconstitutionally overbroad].) The central requirement of the first type of offense under section 69 is an attempt to deter an executive officer from performing his or her duties imposed by law; unlawful violence, or a threat of unlawful violence, is merely the means by which the attempt is made. (People v. Superior Court (Anderson), supra, 151 Cal.App.3d at p. 897.)” (In re Manuel G. (1997) 16 Cal.4th 805, 814-815.)
The jury was instructed pursuant to CALCRIM 2651 and 2652 on the two prongs of section 69, attempting to deter an officer and resisting an officer. On the former, the jury was directed that to prove appellant guilty of trying to deter an executive officer “the People must prove that one, the Defendant willfully and unlawfully used violence or a threat of violence to try to deter an executive officer from performing the officer’s lawful duty. And two, when the Defendant acted, she intended to deter the executive officer from performing the officer’s lawful duty.” On the second prong, the jury was directed that to prove appellant guilty of resisting an executive officer in the performance of that officer’s duty, “the People must prove that one, the Defendant used force or violence to resist an executive officer. Two, when the Defendant acted, the officer was performing his lawful duty. And three, when the Defendant acted, the officer was performing his duty.”
Appellant requested that the jury be given the following special instruction bearing on the first prong of section 69: “In order to convict the defendant of the charged offenses based upon a threat, the threat must reasonably appear to be a serious expression of intention to inflict bodily harm and its circumstances are such that there is a reasonable tendency to produce in the victim a fear that the threat will be carried out.” The requested instruction was based on a quotation from People v. Hines (1997) 15 Cal.4th 997, 1061 (Hines). The trial court declined to give it, stating that Hines did not stand for the proposition defense counsel set forth in the instruction and the instruction imposed additional burdens on the prosecution not required under section 69. The court explained that it believed Hines “stands for the proposition that... there’s no evidence of a Penal Code violation of 69 when the Defendant comments to another individual, i.e., to another inmate in the jail, that the police officer’s days were short. Since they were never communicated to the police officer, they really were not made with the specific intent to prevent the police officer from performing his duties.”
The defendant in Hines was prosecuted under section 69 based on several statements he made to officers while incarcerated. First, an officer testified that the defendant used profanity and disobeyed an order to stand on a yellow line and face the wall; later, when the officer had to restrain him because he became argumentative and hostile while being photographed, the defendant told the officer he “ ‘would be sorry [he] ever saw’ defendant, ” threatened to throw bars of soap at the officer and, still later, told the officer, “ ‘I am going to kill you. This is a threat. You’re dead.’ ” (Hines, supra, 15 Cal.4th at p. 1059.) On another occasion the defendant told the officer, who was searching his cell, to stop or he would “ ‘kick you in the face.’ ” (Ibid.) Another officer testified that he heard the defendant say about a third officer that he would “ ‘beat his ass down’ ” and “ ‘his days are short.’ ” (Ibid.)
Rejecting the argument that the defendant could not be convicted because he lacked the intent and present ability to interfere with any of the officers’ performance of their duties, Hines held that the jury reasonably could have found the threats to the first officer were made to prevent him from restraining the defendant and enforcing the rules of the jail. (Hines, supra, 15 Cal.4th at p. 1060.) It was the statement that another officer’s “days were short” that Hines found did not violate section 69, because it was directed to other inmates, not to the officer, and therefore was not made “with the specific intent to deter or prevent [the officer] from performing his duties.” (Id., at p. 1060-1061.)
The quotation upon which appellant’s requested jury instruction was based appears in the context of the court’s rejection of the argument that section 69 was unconstitutionally overbroad on its face because it punishes the exercise of constitutionally protected speech, and as applied to the defendant because he did not have the immediate ability to carry out his threats at the time he made them. Hines stated, “ ‘As long as the threat reasonably appears to be a serious expression of intention to inflict bodily harm [citation] and its circumstances are such that there is a reasonable tendency to produce in the victim a fear that the threat will be carried out, ’ a statute proscribing such threats ‘is not unconstitutional for lacking a requirement of immediacy or imminence.’ (In re M.S. (1995) 10 Cal.4th 698, 714.)” (Hines, supra, 15 Cal.4th at p. 1061.)
Hines went on to clarify this point with the statement, “Thus, threats may be constitutionally prohibited even when there is no immediate danger that they will be carried out.” (Hines, supra, 15 Cal.4th at p. 1061.) Hines also stated, “[A] defendant’s threat may violate section 69 even if the officer who is the object of the threat does not in fact fear that it will be carried out. The statute requires only that the defendant make the threat for the purpose of inducing such fear, and to thereby deter or prevent the threatened officer from performing any legally imposed duty. (See People v. Superior Court (Anderson) [supra] 151 Cal.App.3d [at p.] 897.)” (Hines, supra, 15 Cal.4th at p. 1061, fn. 15.)
Without these clarifying statements, the proposed instruction was potentially confusing in that it could be taken to suggest a requirement that the target of the threat in fact believed it could be carried out. We assume this is what the court was referring to in stating that the instruction posed an inappropriate additional burden upon the prosecution. “[A] trial court may properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing (People v. Gurule (2002) 28 Cal.4th 557, 659), or if it is not supported by substantial evidence (People v. Bolden [(2002) 29 Cal.4th 515, ] 558.)” (People v. Moon (2005) 37 Cal.4th 1, 30.)
Appellant’s concern is the protection of her right to free speech under the First Amendment. “[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers. ‘Speech is often provocative and challenging.... [But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.’ ” (Houston v. Hill, supra, 482 U.S. 451, 461 quoting Terminiello v. Chicago (1949) 337 U.S. 1, 4.) Houston found unconstitutionally broad a municipal ordinance that was “not limited to fighting words nor even to obscene or opprobrious language, but prohibit[ed] speech that ‘in any manner... interrupt[s]’ an officer.” (Id., at p. 462.) Similarly, Duran v. City of Douglas, Ariz. (1990) 904 F.2d 1372, 1377-1378, held a detention illegal because it was based solely on the defendant making obscene gestures and yelling profanities at a police officer in circumstances insufficient to constitute disorderly conduct; the defendant’s “expression of disapproval toward a police officer with whom he had just had a run-in... fell squarely within the protective umbrella of the First Amendment.” Lewis v. City of New Orleans (1974) 415 U.S. 130, 132, 134, found unconstitutionally overbroad an ordinance that made it unlawful “for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty” because it was not limited to “ ‘fighting words’ ” and was susceptible of application to protected speech.
Section 69, unlike the cases above, is limited to threats of violence. CALCRIM 2651 so advised the jury. Appellant suggests, however, that there was no indication any of the officers believed she intended her statement — “die you fucking pig, 187 on a cop” — to convey an actual intent to kill a police officer, that it could not reasonably have been taken as an imminent threat because the physical force appellant was using fell far short of an attempt to kill, and that the circumstances demonstrate the words were only hyperbole, an “extreme method of expressing her anger” at the police intrusion into her home.
In Watts v. United States (1969) 394 U.S. 705, the case appellant uses to illustrate her point, the defendant was convicted of violating a 1917 statute which prohibits “ ‘knowingly and willfully... [making] any threat to take the life of or to inflict bodily harm upon the President of the United States....’ ” The defendant told others at a public rally that he had received his draft notice and was supposed to report for his physical, he was not going to go, and “ ‘[i]f they ever make me carry a rifle the first man I want to get in my sights is L. B. J.’ ” (Id., at pp. 705-706.) Watts reversed the conviction, holding that the defendant’s statements were “political hyperbole” rather than the “true ‘threat’ ” required by the statute: “We agree with petitioner that his only offense here was ‘a kind of very crude offensive method of stating a political opposition to the President.’ Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise.” (Id., at p. 708.)
The circumstances here differ significantly from those in Watts. Appellant’s statement was not political hyperbole and it was not conditional: She yelled “die you fucking pig, 187 on a cop” while yelling other obscenities and racial slurs, physically resisting the officers, including spitting on them, stomping on their feet and reaching for one of their weapons, and while attempting to get past the officers toward the back of the house where the officers knew a loaded gun had been found. This is not a case like Houston, Lewis or Duran, where speech alone was made the basis of a criminal offense, nor a case like Watts, where the circumstances showed that something phrased as a threat of violence was not intended to be taken as such. In the circumstances here, the jury instructions requiring a threat of violence and intent to deter the performance of the officers’ duties sufficiently defined the elements of a violation of section 69 and precluded appellant being convicted solely on the basis of constitutionally protected speech. Additionally, the prosecutor never asked the jury to convict appellant based on her words alone. The prosecutor argued that the evidence showed “both oral threats and physical violence. It’s a combination of the statements and conduct. [¶] It’s an ongoing course of conduct, really.... an ongoing course of verbal threats and physical assaults.”
II.
Appellant contends the trial court erred in refusing to allow her brother to testify that he had been threatened by the police in the past. The issue arose when the prosecutor cross-examined Miguel Jr. about his failure to intervene when he saw three police officers force appellant against the wall. After Miguel Jr. testified that he heard appellant scream and was “fearful for her life, ” the prosecutor asked, “But you didn’t try to go back to the back hallway, right?” Miguel Jr. responded, “I was – I think, you know, I’m ashamed to say I think I was more fearful because they had made threats, the San Bruno police officer in the past, made threats against me.” The prosecutor interrupted and moved to strike the answer as nonresponsive, and the trial court granted the motion. Defense counsel requested a side bar, which the court denied. In closing argument, the prosecutor told the jury that appellant’s brother was “evasive” in his testimony, giving details inconsistent with his prior statement to the investigator that made the incident “sound worse.”
Appellant’s defense was that she did not act unlawfully because the police used excessive force when they detained her, and that her conduct was an expression of anger and attempt to protect herself rather than an attempt to deter the officers from conducting the search. She contends that the trial court’s ruling violated her constitutional right to present evidence in her defense (Crane v. Kentucky (1986) 476 U.S. 683, 690) because Miguel Jr.’s testimony that he saw the police abusing appellant was critical to her defense, the prosecutor directly challenged his credibility and the explanation she sought to present would have neutralized the prosecutor’s attack. Contrary to appellant’s assertion that the trial court did not explain its ruling, respondent maintains the ruling was based on an earlier ruling excluding evidence of the Araujo family’s past conflicts with the police.
Among the in limine motions, the prosecution moved to exclude any testimony from appellant’s family members about negative interactions with the local police department while appellant moved for admission of such evidence. Appellant’s motion described a number of bases for the family’s resentment of the police, including the belief that the probation search was actually undertaken because of an attempted murder case in which Tizoc and Miguel Jr. had been charged but the charges subsequently dismissed as unfounded; that in previous searches the police had “trashed” the home, thrown new t-shirts printed for Latino civil rights demonstrations Miguel Sr. organized into the dirt, and allowed rabbits to escape from a backyard hutch; and that the family home had been vandalized and the police refused to do anything about it. Miguel Jr. had run for a city counsel position in an election in which the family campaigned against a ballot measure to increase funding for the police department because of their disappointment with the way the police treated them. Miguel Sr. had taken photographs of San Bruno police cars parked at the Rolling Pin Doughnut shop and complained to the chief of police that having so many officers gathered there at one time was not a good use of police time. Defense counsel told the court that the family resented the police for arresting Tizoc Araujo and Miguel Jr. and holding Tizoc in custody for 10 months before the attempted murder case was dismissed; that when Miguel Sr. went to get a permit for a march in San Bruno and, asked the purpose of the march, said it was to complain about police abuses, he was laughed at and denied the permit; that the police report for the current incident indicated that Miguel Sr., in complaining about how appellant was being treated, told the police they were acting like the Mafia and said that if anything happened to appellant “I’m going to take care of you”; and that Rosa’s comment to the police, “go steal, ” was a reference to a prior search when they had taken items of Tizoc’s clothing, which she considered stealing. Counsel argued that the evidence was necessary to provide a context, a “back story, ” to explain the family’s attitude toward the police.
The court excluded the evidence under Evidence Code 352, holding that the above matters were not relevant to show appellant’s state of mind because she was not testifying, the evidence would consume an undue amount of time and the prejudicial effect of the evidence would outweigh its probative value. After further argument, it offered that the solution would be to permit defense counsel to ask one question about Rosa’s reference to stealing, and one question about Miguel Sr.’s reference to the Mafia, asking “were you referring to other incidents that you had with the police that left you with a negative feeling and leave it at that.” The court explained, “I think there is some prejudice if the jury believes that the Araujo household is the subject of numerous search warrants, drug dealings, guns. I think that comes back against her. So limiting it that way does give the jury enough context.” Defense counsel agreed this was “a good solution.”
Although appellant is correct that the court gave no explanation when it ruled on the objection to Miguel Jr.’s response to the prosecutor’s question on cross-examination, it is a fair inference from the record that the ruling was based on the prior exclusion of evidence of past negative interactions with the police. As appellant points out, however, the context in which the question arose was different from that of the in limine motion, which sought to affirmatively present evidence of the family’s prior interactions with the police as part of the defense case. On cross-examination, when the prosecutor challenged Miguel Jr.’s credibility by questioning why he did not come to appellant’s assistance if he believed she was being abused by the police, the question was whether reference to past negative interactions with the police was relevant and admissible to respond to the prosecutor’s challenge.
Respondent urges that the prosecutor’s question concerned only the veracity of Miguel Jr.’s testimony that he was concerned about appellant’s health, pointing to an inconsistency in that Miguel Jr. would have tried to help appellant if he was truly concerned, and therefore suggesting that the situation was not as bad as he was trying to portray it in his testimony. Respondent also maintains the stricken answer would not have bolstered Miguel Jr.’s credibility but rather would have undermined it by bringing up his past confrontations with law enforcement.
This argument completely ignores appellant’s point. Miguel Jr.’s response suggested that his failure to rush to appellant’s assistance was due to his fear of the police, not his lack of concern. That fear, in turn, was based on past interactions with the police, which appellant wanted the jury to know about in evaluating her conduct. Nevertheless, we need not determine whether the trial court erred in striking Miguel Jr.’s response. At best, his testimony would have offered the jury some explanation for appellant’s conduct, that she was angry with the police because of her brother’s past experience. It would not, however, have altered the legal significance of her conduct because it would not have undermined the evidence that appellant intended to deter the police in performance of their duties. Even if the jury believed appellant was acting in anger, it could not have found appellant guilty without finding that her words and conduct were intended to deter the police from performing their duties and not, as defense counsel argued to the jury, just a venting of her anger or an attempt to protect herself from officers who were using excessive force against her. Miguel Jr.’s credibility was at issue because of his relationship to appellant and because of the inconsistencies between his statements to the police and his trial testimony, inconsistencies that the prosecutor pointed out in each particular tended to make the incident appear worse than what he initially described to the police. The challenge to Miguel Jr.’s credibility that appellant claims the stricken response would have neutralized suggested to the jury that Miguel Jr. was exaggerating the incident because if he had seen officers abusing appellant, he would have come to her assistance. This was a weaker challenge than those already in play, as it is not difficult to imagine that Miguel Jr. could have been afraid to intervene against what he viewed as police brutality even without the background of his past interactions with the police. Even under the stringent test required for constitutional error, reversal would not be required. (Chapman v. California (1967) 386 U.S. 18, 24.)
As indicated above, appellant contends this issue is of constitutional dimension because the restriction on her brother’s testimony violated her right to present material evidence in support of her defense. Respondent views the issue as one of simple evidentiary error, requiring reversal only upon demonstration of a reasonable probability of a more favorable outcome in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) We find harmless error under either standard.
III.
Appellant additionally contends that she received ineffective assistance of counsel due to her attorney’s failure to request an interpreter to assist her father during his testimony. She contends that it was clear Miguel Sr. could not communicate adequately in English and, therefore, no reasonable attorney would have failed to request an interpreter.
Appellant did not raise the issue of an interpreter for her father at trial and therefore cannot directly challenge the trial court’s failure to appoint one. (People v. Romero (2008) 44 Cal.4th 386, 410.)
Appellant offers a number of examples of her father’s inability to communicate sufficiently in English. Several of these are Miguel Sr.’s own references to the quality of his English skills. Asked about the words he heard appellant using in this incident, Miguel Sr. responded, “Well, I think, you know, she’s angry. And I know she’s angry because — how say, what my English is taco English. I’m sorry. I’m try to... she’s angry when she go in....” After Miguel Sr. testified that he tried to stop appellant from going to the house, the prosecutor asked if this was because she was angry and he replied, “Yeah, she — I tell you, she — she not want to listen to me. She’s angry. And she told me because I no speak very well English she better go first and my son is not there.” At the beginning of the cross-examination, when the prosecutor introduced herself and told him to ask if he needed her questions clarified, Miguel Sr. said, “The only thing I want to — I have a little problem to hear, and you have to remember my English is taco English, so.”
Appellant also offers illustrations of her father’s assertedly inadequate command of the language. In part of his response to a question on direct about what he was doing at a particular moment, Miguel Sr. said his son was talking behind him and “I turn back and see and I, you know, I have something, some presentiment in me.” The court asked defense counsel, “Perhaps you can clarify some of the answers he gave. There were some words he used, I’m not sure if I understood. I’m not sure if it’s just the translation or the English.” In a passage appellant offers to demonstrate Miguel Sr. did not understand what he was being asked, the prosecutor asked if he had an interpreter when he spoke with the defense investigator and Miguel Sr. responded, “Well, what happened is the first time, this is the first time, when I came to even I have tickets, I come in two, three times to this court for tickets. But the first time when I tried to do myself, because I never go to school, and I don’t — have poor school in my own language and I’m —“ The prosecutor cut in to stop him and Miguel Sr. said, “I’m scared.” The prosecutor continued, “My only question was when you talked to [defense counsel] at his office, with the investigator, there was an interpreter — interpreting for you into Spanish and English, right?” Miguel Sr. replied, “Yeah, yeah.” The prosecutor then asked, “But today you feel okay; you feel like you’re understanding everything I’m asking?” After initially saying he had told “the lawyer... I’m not sure if I can do my English, ” Miguel Sr. testified, “I’m understanding what you say, yes.”
The standards governing claims of ineffective assistance of counsel are familiar. “Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694; In re Wilson (1992) 3 Cal.4th 945, 950.) A ‘reasonable probability’ is one that is enough to undermine confidence in the outcome.” (Strickland v. Washington, supra, 466 U.S. at p. 694; In re Jones (1996) 13 Cal.4th 552, 561.)
“Our review is deferential; we make every effort to avoid the distorting effects of hindsight and to evaluate counsel’s conduct from counsel’s perspective at the time. (In re Jones, supra, 13 Cal.4th at p. 561.) A court must indulge a strong presumption that counsel’s acts were within the wide range of reasonable professional assistance. (Strickland v. Washington, supra, 466 U.S. at p. 689.) Thus, a defendant must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances. (Ibid.) Nevertheless, deference is not abdication; it cannot shield counsel’s performance from meaningful scrutiny or automatically validate challenged acts and omissions. (In re Jones, supra, 13 Cal.4th at pp. 561-562.)” (People v. Dennis (1998) 17 Cal.4th 468, 540-541.)
While appellant asserts no reasonable attorney would have failed to request an interpreter, respondent suggests a plausible tactical purpose for not making this request. Miguel Sr. testified that he did not hear appellant make the “187 on a cop” statement described by the police officers or say “nigger.” If Miguel Sr. had testified through an interpreter, the jury might have concluded he could not sufficiently understand the words being used during the incident and been disinclined to believe his testimony on this basis. Moreover, a full reading of Miguel Sr.’s testimony reflects that despite some difficulties, he was able to understand the questions he was asked and to communicate his responses. His testimony supplied several details that would have aided appellant’s defense if the jury had believed him: That appellant did not say “nigger” or “187 on a pig”; that three officers restrained appellant, none of whom were African-American; that appellant did not spit on an officer or stomp on an officer’s foot; and that appellant seemed to have trouble breathing while she was restrained. Miguel Jr. corroborated his father’s testimony on several of these points — that three officers restrained appellant, none of whom were African-American, and that appellant did not use racial epithets or spit on an officer – although their testimony differed as to appellant’s use of the word “pigs, ” which Miguel Jr. said appellant did not use but Miguel Sr. described her using. In light of the overall comprehension reflected in the transcript and his son’s corroboration of many of the details he provided, it is not reasonably probable a more favorable outcome would have resulted if defense counsel had requested an interpreter for Miguel Sr. and the court had exercised its discretion to appoint one.
The judgment is affirmed.
We concur: Lambden, J., Richman, J.