Opinion
A147903
05-09-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSE GUILLERMO ORIARTE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR171798)
Defendant Jose Guillermo Oriarte appeals from an order revoking his probation. He contends there is no substantial evidence to support the court's finding that he failed to obey all laws as required by the terms of his probation and, alternatively, that the court's order was contrary to the interests of justice. With some misgivings we shall affirm the court's order.
Factual and Procedural Background
On February 13, 2015, defendant pled no contest to one felony count of unlawfully possessing ammunition. (Pen. Code, § 30305.) His plea was entered as part of an agreement under which the prosecutor agreed not to oppose reduction of the charge to a misdemeanor if defendant completed 18 months of probation without a violation.
All statutory references are to the Penal Code.
On July 6, 2015, a petition was filed to revoke defendant's probation. The petition alleged that on June 6, 2015, defendant had failed to obey all laws in that he had violated sections 626.8, subdivision (a) (disruptive presence on school grounds) and 415.5, subdivision (a) (disturbing peace on school grounds).
The following evidence was presented at a contested revocation hearing:
An American Canyon police technician testified that on June 6, 2015, at about 9:45 a.m., she was in uniform, on duty at a local high school enforcing handicap parking restrictions for the school's graduation ceremony. In the course of her duties, she made contact with the occupants of a vehicle that parked in the handicap parking area. Although a handicap placard was hanging from the rearview mirror of the parked vehicle, when questioned by the technician, the driver was unable to produce the registration paperwork. The driver told the police technician that the placard belonged to "Hazel" and that he had dropped Hazel off at the gate or main entrance to the school campus. The police technician did not believe the driver because she had seen him pull into the parking lot from the other direction.
As she was speaking with the driver, defendant, who was a passenger in the vehicle, began interrupting the conversation to advise the technician that they had dropped Hazel off and that they should not need to verify the placard. Defendant was "loud," "agitated," and used "profanity" calling the situation "bullshit" and ridiculous. The police technician told defendant to stop so that she could speak with the driver. When he did not stop, she was concerned for her safety and waived over her supervisor, a Napa County deputy sheriff, to assist her. Defendant was upset and using profanities in speaking with the deputy. Children and adults were staring at them as they walked past.
The deputy described defendant as "inserting himself into the situation" and noted that he was loud and using profanity. The deputy told defendant to calm down and stop using profanity. At some point, defendant walked over to the main gate and found his mother, Hazel. The technician testified that defendant continued to cause "a huge scene" while retrieving his mother and as people were entering the facility was yelling "[i]t's bullshit and more profanity" about "those cops that need to check the placard." She testified that all of the people entering the stadium were staring. She was unsure "if they stopped, but they all definitely looked to see what was going on."
After speaking to Hazel, the technician was able to verify that the placard was legitimate and she instructed the driver that he could leave the vehicle where he had parked. As she was speaking to Hazel and the driver, she observed that defendant was still arguing with the deputy and then she saw the deputy arrest defendant. Defendant was yelling about police brutality and calling for someone to videotape the incident as he was being walked to the patrol car.
An audio recording of the incident, made by the deputy, was played for the court. In the recording, the deputy can be heard asking defendant not to use profanity and explaining to defendant that he is on school grounds, but the defendant cannot be heard using a loud voice or profanity prior to the point at which the deputy placed him under arrest. Defendant initially argued with the deputy but then moved about 15 or 20 feet away from the parking lot. As the technician leaves to find Hazel and confirm her placard registration, the deputy can be heard advising his family that if defendant "pops off" again, he will not be going into the ceremony. Within moments, the deputy can be heard telling defendant to leave the school property. Although defendant cannot be heard on the recording, the deputy testified that he told defendant to leave the school property because defendant loudly called him an "asshole," causing people entering the stadium to stop and turn around. When defendant explained that he simply wanted to attend his daughter's graduation and that he had stopped using profanity, the deputy repeated that defendant was being told to leave the school grounds for being disruptive and that if he did not leave he would be arrested for trespassing. After about two minutes, in which defendant persisted that he wanted to attend his daughter's graduation and refused to leave the school grounds, the deputy informed defendant that he was being arrested. When the deputy handcuffed defendant, he began yelling for someone to videotape the incident. Once defendant was in the patrol car, he was issued a ticket and instructed to leave the school grounds immediately. Defendant left the parking lot and did not enter the stadium, but he did continue yelling from the "city sidewalk" adjacent to the school.
A school employee who observed the incident testified that defendant was being "very loud" and "wouldn't calm down." With the adults and children entering the stadium for graduation, he believed the incident was "quite a distraction." After being issued the citation and told to leave the school property, defendant remained on the sidewalk adjacent to the parking lot. He asked the school employee if the sidewalk was school property.
Defendant testified on his own behalf. He had gone to the school to attend the graduation of his daughter. When the deputy took the handicap placard from him and said he was confiscating it to give to DMV, he felt the deputy was being disrespectful and unprofessional and that his action was "kind of like assault." He responded by saying, "[M]an what the hell you doing, you can't take that, that belongs to my mother." He admitted that he called the deputy an "asshole." He also was irritated that the officers were giving his mother the "third degree" about how long she had known the person driving the vehicle and "irrelevant questions" when they needed to get into graduation. Defendant felt that the deputy was "out of line" and thought his words were protesting the deputy's actions. Defendant agreed that at times he has difficulty controlling his emotions and acknowledged that some of the things he said to the officer were not friendly.
Based on this evidence, the trial court found that defendant had violated sections 626.8, subdivision (a) and 415.5. The court revoked and then reinstated defendant's probation subject to additional terms and conditions. Defendant timely filed a notice of appeal.
Discussion
1. Substantial evidence supports the finding that defendant violated section 415 .5.
The trial court found that defendant violated section 415.5, subdivision (a), which provides in relevant part that any person who "maliciously and willfully disturbs another person" within any building or upon the grounds of any school "by loud and unreasonable noise" is guilty of a misdemeanor.
Defendant contends the evidence was insufficient to establish that he willfully and maliciously caused a disturbance at the school. He argues that he was "verbally disputing what he believed was wrongful conduct by the officers in taking his mother's placard and stating an intent to issue a citation for parking in a handicap spot despite the law permitting them to do so." His protest or criticism of the deputy, he asserts, is protected under the First Amendment and thus cannot form the basis of a violation of section 415.5. We disagree.
Defendant undoubtedly possessed the right under the First Amendment to dispute the deputy's actions. "[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers." (Houston v. Hill (1987) 482 U.S. 451, 461.) Indeed, "[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state." (Id. at pp. 462-463.) Likewise, while the police may resent having abusive language "directed at them, they may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment." (Duran v. City of Douglas, Ariz. (9th Cir. 1990) 904 F.2d 1372, 1378; People v. Quiroga (1993) 16 Cal.App.4th 961, 966.)
However, the court found that defendant caused a disturbance at the graduation proceedings that went "beyond what would be legitimate free speech." Although the partial recording of the incident hardly establishes this to be true, and suggests that the deputy may well have over-reacted, the testimony of several witnesses does provide substantial evidence that defendant did in fact cause a disturbance.
In In re Brown (1973) 9 Cal.3d 612, 621 (Brown) the court differentiated between prohibitions on "loud speech" that violate the First Amendment and those that do not. The court concluded that section 415 which, like section 415.5, makes it unlawful to maliciously and willfully disturb the peace or quiet of any neighborhood or person by loud or unusual noise, cannot "consistent with First Amendment rights, be applied to prohibit all loud speech which disturbs others even if it was intended to do so." (Id. at p. 621; see also In re Fernando C. (2014) 227 Cal.App.4th 499, 504.) The court added, "We do not hold, however, that section 415 may never be applied to loud shouting and cheering. There is a fundamental difference between loud communications and the use of loud shouting and cheering, not to inform or persuade, but to disrupt lawful endeavors. Loud shouting and cheering designed to disrupt rather than communicate may be prohibited generally. . . . The use of the human voice to disturb others by the mere volume of the sound when there is no substantial effort to communicate or when the seeming communication is used as a guise to accomplish the disruption may be prohibited consistent with First Amendment guarantees." (Brown, supra, at p. 621.)
The court's application of Brown in People v. Superior Court (Commons) (1982) 135 Cal.App.3d 812 is instructive. In that case, police officers arrested defendant for maliciously and willfully disturbing the peace by loud and unreasonable noise after he yelled for three or four minutes loudly in the hallway of a hotel. Specifically, there was testimony that defendant laughed very loudly at the police and said something like, " 'You motherfuckers can't fuck with me because I haven't done anything.' " (Id. at pp. 814-815.) During this period of time, several hotel doors were opened, people looked outside and then shut their doors. (Ibid.) Relying on Brown, supra, 9 Cal.3d 612, the court concluded that the officers had probable cause to believe that defendant's "purported communication was used as a guise to disrupt lawful endeavors" and thus to arrest defendant. (People v. Superior Court (Commons), supra, at p. 817.) The court explained, "Real party laughed and shouted very loudly in the hallway of a hotel at about 1 a.m. By reasonable inference, hotel residents were in fact disturbed from their rest by this commotion in the hall, as evidenced by their conduct in looking out into the hall. The loud laughter was itself disruptive and was not communicative in nature. If real party intended only to communicate with the police, he could have done so in a normal tone of voice appropriate to the hotel environment and late hour. Shouting would be appropriate if real party felt threatened by the officers and attempted to elicit help. But there was no call for help, only obscenities directed toward the officers. In short, the facts support a reasonable inference that real party intended to and did create a disturbance by making loud noises, and that the purported communication was used as a guise to that end." (Ibid.; see also In re Curtis S. (2013) 215 Cal.App.4th 758, 763-764 [Minor's "loud shouting of obscenities and threats was disruptive, rather than communicative in nature. If the Minor had intended only to communicate his desire to be left alone, he could have done so in a different tone of voice more appropriate to the scene on a street by a swimming pool in the afternoon."].)
Here, the testimony of the police technician, the deputy sheriff and the school employee amply establish that defendant's yelling disrupted the orderly arrival of guests at the graduation ceremony. Contrary to defendant's argument, his yelling did not serve a communicative function with either the police or the guests. There was no need for him to yell profanities in order to dispute the questioning of the legitimacy of the handicap placard. Likewise, substantial evidence supports the finding that the disturbance was malicious. "Maliciously" is defined under the Penal Code as a wish "to vex, annoy, or injure another person, or an intent to do a wrongful act." (§ 7, subd. (4).) Defendant's belief that the deputy was harassing them and that he was "lawfully defending his mother's right to maintain her placard" does not lessen the fact that he intentionally caused a disturbance.
Although defendant later shouted epithets and for someone to videotape his arrest, that occurred only after the deputy handcuffed him and placed him under arrest. Those statements thus are not part of the disturbance that led to his arrest.
Because we conclude that the substantial evidence supports defendant's violation of section 415.5, we need not evaluate the sufficiency of the evidence to support the more questionable finding that defendant's conduct also violated section 626.8.
Under section 626.8, subdivision (a), any person who comes upon any school ground "without lawful business thereon, and whose presence or acts interfere with the peaceful conduct of the activities of the school or disrupt the school or its pupils or school activities, is guilty of a misdemeanor if he or she does any of the following: [¶] (1) Remains there after being asked to leave by the chief administrative official of that school or his or her designated representative, or by a person employed as a member of a security or police department of a school district pursuant to Chapter 1 (commencing with Section 38000) of Part 23 of Division 3 of Title 2 of the Education Code, or a city police officer, or sheriff or deputy sheriff, or a Department of the California Highway Patrol peace officer." (Italics added.) There is no suggestion that defendant did not come upon the school grounds for a lawful purpose—only that he refused to leave when ordered to do so. --------
2. The revocation and reinstatement of defendant's probation did not result in a miscarriage of justice.
Defendant contends that even if his conduct at the graduation ceremony violated section 415.5, the revocation of his probation was not in the interest of justice because it negates his ability to obtain an unopposed reduction of his underlying conviction from a felony to a misdemeanor pursuant to the terms of his plea agreement. He argues, "In light of the totality of circumstances and facts underlying the incident at issue herein, the revocation of probation served a manifest injustice and should be reversed." However, although the probation revocation permits the district attorney to oppose an application for reduction of the conviction, the revocation does not limit the court's discretion to grant such an application if it deems such to be appropriate. In all events, there was no abuse of discretion in the court's order.
Disposition
The order revoking and reinstating defendant's probation is affirmed.
Pollak, Acting P.J. We concur: Siggins, J.
Jenkins, J.