Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super.Ct.No. JV26902E
Duffy, J.
Stephen G. was adjudged to be a ward of the juvenile court under the juvenile delinquency law (see Welf. & Inst. Code, § 602, subd. (a)) after the court sustained a petition alleging conduct that if committed by an adult would have amounted to a misdemeanor violation of Penal Code section 422.6, subdivision (a), a statute prohibiting hate crimes. The court placed Stephen G. on formal probation for one year, accompanied by a number of conditions, and ordered him to spend three days in juvenile hall, perform 40 hours of community service, and pay small fines to the general fund and the restitution fund as well as $100 to the public defender in attorney fees. He appeals from the order (Welf. & Inst. Code, § 800, subd. (a)), claiming that he received ineffective assistance of counsel. We disagree and will affirm the order.
Subdivision (a) of Penal Code section 422.6 provides: “No person, whether or not acting under color of law, shall by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States in whole or in part because of one or more of the actual or perceived characteristics of the victim listed in subdivision (a) of Section 422.55.”
FACTUAL BACKGROUND
Stephen G., then seventeen years old, was involved in an angry exchange and a physical altercation with Vincent Intersimone, a gay male undergraduate student at Stanford University, on the Stanford campus in Palo Alto. The parties disputed whether the fracas consisted of a physical attack by Stephen G. on Intersimone that was occasioned wholly or in part because of Intersimone’s actual or perceived sexual orientation, or, instead, consisted of mutual name-calling that escalated into a scuffle that Intersimone started, with Stephen G. responding in legitimate self-defense.
I. Prosecution Case
Intersimone testified that shortly before midnight on October 6, 2006, he was walking on campus grounds with Jerry Zee, Bharat Venkat, and a man named Kevin. He was slightly intoxicated, but not drunk, from having consumed two or three drinks that evening. Intersimone was wearing tight jeans. He and Venkat had their arms draped around each other’s shoulders and were loudly singing Christmas carols. A car drove by and its occupants repeatedly yelled a common homophobic slur at Intersimone’s group. Intersimone yelled back words to the effect of “Come back and say that to my face.” The driver drove away but soon returned and the occupants alighted. Intersimone walked toward them with his friends trailing. The occupants walked toward Intersimone. Intersimone said, “Yes, I am gay. Yes, I have anal sex with men.” Stephen G. pushed Intersimone after placing himself in a position to trip him, and knocked him to the ground. During this confrontation Stephen G. repeatedly directed homophobic slurs toward Intersimone. Intersimone did not fight back: “I had my hands by my side because I was purposely not wanting to be the aggressor.” Stephen G. considerably outweighed Intersimone and was taller than he.
On cross-examination, Intersimone testified that Venkat tried to defuse the confrontation, urging Intersimone not to argue with Stephen G.
Zee, a senior at Stanford University, provided similar testimony about the setting of the incident. He testified that although Intersimone had consumed alcoholic beverages earlier that evening, he showed no signs of intoxication. A car slowed and Zee heard its occupants yelling at Intersimone and Venkat. Intersimone and Venkat yelled back at the car’s occupants. Presently the car returned and three people, including Stephen G., emerged. A heated exchange began, in which all of the aggressors asked if Intersimone was gay (here Stephen G. directed one or more common homophobic slurs toward Intersimone) and, in a similarly vulgar manner, about Intersimone’s sexual habits. Intersimone answered that he was gay and that he engaged in anal sex with men, to which the aggressors replied, “[t]hat’s disgusting.” Stephen G. moved closer and soon Intersimone came face-to-face with him. Stephen G. then pushed and tripped Intersimone, causing him to fall. The aggressors laughed and joked and drove off. Zee did not see Intersimone touch Stephen G. or challenge him to fight. No other physical altercations occurred between the others present.
II. Defense Case
Stephen G. testified on his own behalf. He testified that one of the vehicle’s occupants, Jordan Waugh, yelled “whores stand on the corner” to Intersimone and his group. Stephen G. did not perceive the target or targets of that taunt to be gay. Intersimone gestured for the car to come back, which it did, and Intersimone staggered toward it. Intersimone demanded to know why Stephen G. had yelled an antigay slur at him, and Stephen G. denied he had done so. Intersimone angrily pushed Stephen G., but could not knock him over because Stephen G. was leaning against the car. Stephen G. pushed back and Intersimone fell over backward. “I barely touched this guy and he’s already falling over.” Intersimone got up and started to charge toward Stephen G. but was restrained by his friends. At that point the incident ended and the car’s occupants left.
Stephen G. said that the people in his party started laughing at Intersimone after he volunteered that he liked anal sex with men. “That’s when he got mad and pushed me.” Until that point, Stephen G. had not perceived Intersimone to be gay. He did not direct antigay slurs toward him during the confrontation. Stephen G. was not hostile toward homosexuality, but found Intersimone’s comment about engaging in anal sex “gross[].”
Stephen G. testified that Intersimone had been singing loudly, his eyes were dilated, he smelled of alcohol, and he was “wobbling back and forth [and] could barely stand up.”
On cross-examination, Stephen G. denied that he had difficulty controlling his anger, but acknowledged fighting in the past, causing his opponent to lose consciousness and require plastic surgery, and that as a result he had appeared in juvenile court at, he believed, age 14. He also acknowledged stealing drugs. He allowed that his actions amounted to theft but denied committing robbery. He testified that he stole the drugs to protect seventh-grade girls who would otherwise have bought them because the police were ineffective in stopping such transactions. Finally, Stephen G. admitted having consumed marijuana in the past, but denied using it on the night of the incident. Stephen G. agreed with the state’s counsel that Intersimone was “right up in [his] face”; he could feel Intersimone’s spittle as Intersimone yelled at him.
Waugh testified that he was one of the car’s passengers. He confirmed aspects of Stephen G.’s testimony. Waugh yelled “Whores stand on the corner” to Intersimone and his group. No one yelled antigay slurs at the group, and Waugh did not perceive any of them to be gay. The car he was in drove away but Intersimone’s group gestured for the occupants to return, and they did. Intersimone, who was drunk and exuded an odor of alcohol, jogged toward the car in a stumbling gait. Intersimone placed himself within inches of Stephen G. and denied he was gay, “and then we all looked at each other like ‘what’s he talking about?’ [¶] And then he says ‘I like it up the ass’ for some reason. I don’t know where that came from. We all started laughing.” Stephen G. said “whoa” and backed up. Intersimone reacted to the laughter by pushing Stephen G., who responded by pushing Intersimone, causing him to fall. Intersimone ignored Venkat’s efforts to intercede and defuse the confrontation. Waugh directed a homophobic slur at Intersimone, but only after Intersimone made his comment about his sexual proclivities.
On cross-examination, Waugh denied calling Intersimone’s group “whores” because he thought they were gay; he did it to be funny. “I always like to yell stuff to people standing on the sidewalk.” Waugh did not mean for his utterances of homophobic slurs to be antigay; Waugh is the adopted child of two gay men or lesbians. Rather, for his own purposes Waugh directs the term at people generically, “homos or not.”
On cross-examination, Waugh stated that he thought Intersimone had feigned his reaction to Stephen G.’s push by falling to the ground. At one point during cross-examination, after testifying that Intersimone had stated at the scene “that he liked it in the ass,” Waugh could not keep a straight face (Waugh so stated for the record), but when the state’s counsel asked if he thought the subject was funny Waugh denied that his reaction reflected his views about homosexuality.
DISCUSSION
I. Legal Background
A minor can be adjudged a ward of the juvenile court for committing conduct that if committed by an adult would constitute a crime. (Welf. & Inst. Code, §§ 602, 725, subd. (b).) In sustaining the petition, the juvenile court necessarily found that Stephen G. used or threatened to use force on Intersimone wholly or in part because of his actual or perceived sexual orientation (see Pen. Code, § 422.55, subd. (a)(6)), within the meaning of Penal Code section 422.6, subdivision (a).
II. Ineffective Assistance of Counsel Claims
Stephen G. argues that his counsel rendered deficient performance and the result was that he received ineffective assistance of counsel, in violation of the federal and California constitutions.
A claim of ineffective assistance of counsel in violation of the Sixth Amendment to the federal Constitution entails deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of an adverse effect on the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.) The Strickland standards also apply to defendant’s claim under article I, section 15 of the California Constitution. (E.g., People v. Waidla (2000) 22 Cal.4th 690, 718.)
A. Failing to Object to Evidence of Stephen G.’s Past Misconduct
As noted, Stephen G. admitted on cross-examination that he had previously inflicted injury during a fight, committed theft of drugs, and consumed marijuana. Counsel for Stephen G. did not object to this evidence. At closing argument, the state’s counsel argued that given Stephen G.’s pugnacious history, he was, contrary to the gist of his testimony, unlikely to have stood passively by the car after Intersimone aggressively approached him and was yelling at him while standing very close to him.
Stephen G. argues on appeal that the evidence of his past misconduct was improperly adduced insofar as it constituted inadmissible character evidence. (See Evid. Code, §§ 1100-1103, 1105.) He maintains that the evidence of the fight and the theft was admissible at most to impeach his credibility, if those incidents showed moral turpitude, and arguably was not admissible at all. He argues further that simply possessing marijuana does not show moral turpitude and that therefore that evidence was entirely inadmissible.
B. Conceding That the Facts Could Support an Element of the Crime
Before the court retired to consider its disposition of the petition, it asked counsel for Stephen G. if the evidence that Stephen G. walked toward Intersimone could be construed as a threat of force. Stephen G.’s counsel agreed that it could.
As noted, Penal Code section 422.6 prohibits using “force or [the] threat of force” to interfere with another’s civil rights on the ground, as relevant here, of the other person’s actual or perceived sexual orientation (see id., § 422.55, subd. (a)(6)). Stephen G. contends that by agreeing with the juvenile court that walking toward Intersimone’s group could constitute a threat of force, his counsel conceded an element of the offense.
C. Discussion
It is not necessary to discuss whether counsel’s performance was deficient if we discern no reasonable probability of an adverse effect on the outcome. (In re Cox (2003) 30 Cal.4th 974, 1019-1020; People v. Mayfield (1993) 5 Cal.4th 142, 175.) Because we do not discern any reasonable probability that the juvenile court would have entered a different order on the petition absent the complained-of acts or failures to act of counsel for Stephen G., we cannot agree with Stephen G. that his counsel was constitutionally ineffective.
Stephen G.’s past conduct could not have borne much weight on the juvenile court’s assessment of the case. The crux of the case was the sequence of events that unfolded late one evening on the Stanford University campus, not what improprieties Stephen G. might have committed in prior years. The state’s evidence on the latter point consisted of a few answers given in the course of thorough testimony by Stephen G., and Stephen G.’s answers were to some extent exculpatory. He admitted using marijuana in the past but not on the night of the incident, and no evidence was elicited regarding how long ago he had used the substance or how often he had used it. He defended his theft of drugs as an altruistic effort to stop young girls from buying illegal drugs after the police had failed to intervene. The fight had happened when Stephen G. was about 14 years old, some years before the incident before the juvenile court. We cannot say that a reasonable probability exists of an adverse effect on the outcome as a result of counsel’s performance, i.e., “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington, supra, 466 U.S. at p. 694.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Ibid.) Our confidence in the outcome is not undermined by the acts and omissions Stephen G. raises on appeal.
Given that part of the juvenile court’s task was to assess the credibility of the parties’ witnesses, the behavior of Stephen G. and his sole supporting witness, Joseph Waugh, during the trial, did not benefit Stephen G. The state’s counsel stated, at the disposition phase, “You have seen [Stephen G.] throughout the trial. He has made little snide remarks, little noises whenever the witnesses are testifying. He’s been staring down the witnesses as they’d be testifying.” The court and Stephen G.’s counsel did not disagree with this assessment. For his part, Joseph Waugh laughed inappropriately during his cross-examination. (Ante, p. 3.)
We turn to Stephen G.’s assertion that his counsel conceded an element of the offense by acknowledging that moving toward Intersimone’s group (a point on which there was no dispute) could constitute a threat of force. We understand Stephen G.’s point, namely that the juvenile court did not specify the basis or bases for its order sustaining the petition, and could have sustained it solely on the basis of Stephen G.’s threat of force. This argument, however, does not suffice to entitle Stephen G. to relief. Stephen G. is required to “ ‘establish “prejudice as a ‘demonstrable reality,’ [and] not simply speculat[e] as to the effect of the errors or omissions of counsel.” ’ ” (In re Cox, supra, 30 Cal.4th at p. 1016; see People v. Mesa (2006) 144 Cal.App.4th 1000, 1007-1008 [applying this standard to an ineffective assistance of counsel claim on direct appeal].) He fails to do the former and instead does the latter. We discern no reasonable probability (as opposed to a speculative possibility) that if counsel had responded differently to the court’s question the court would have found that Stephen G. neither threatened force nor used actual force against his victim and would have entered a different order.
DISPOSITION
The juvenile court’s order is affirmed.
WE CONCUR:
Mihara, Acting P. J., McAdams, J.
Penal Code section 422.55 provides in turn: “(a) ‘Hate crime’ means a criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim: [¶] (1) Disability. [¶] (2) Gender. [¶] (3) Nationality. [¶] (4) Race or ethnicity. [¶] (5) Religion. [¶] (6) Sexual orientation. [¶] (7) Association with a person or group with one or more of these actual or perceived characteristics. [¶] (b) ‘Hate crime’ includes, but is not limited to, a violation of Section 422.6.”