Filed 6/12/14 P. v. Rodriguez CA2/6

            NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.


         IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               SECOND APPELLATE DISTRICT

                                             DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B247514
                                                                          (Super. Ct. No. 2012035750)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

BRAULIO RAY RODRIGUEZ,

     Defendant and Appellant.


                   Braulio Ray Rodriguez appeals the judgment entered after he was
convicted by a jury of disturbing the peace, in violation of Penal Code section
415, subdivision (1),1 and of committing the crime for the benefit of a street
gang, in violation of section 186.22, subdivision (d). Appellant was sentenced to
three years in the California Department of Corrections.
                   Appellant contends the trial court erred by refusing to modify
CALCRIM No. 2688 by adding a statement that he could not be found guilty of
the crime of challenging another person to fight by "the mere use of a vulgar,
profane, indecorous, scurrilous, opprobrious epithet." We reject the contention
and affirm.



1
    All subsequent statutory references are to the Penal Code.
                            STATEMENT OF FACTS
              On September 1, 2012, Appellant, another man and two women
were using the Jacuzzi at the Serenade Apartments in Oxnard. The Jacuzzi and a
swimming pool are exclusively for the use of tenants and their guests.
              Michael Kotz is a uniformed, armed, licensed security guard who
was assigned to patrol the apartments. One of his tasks is to confirm that persons
using the swimming pool and Jacuzzi are authorized to do so. Tenants must
show the key to their apartment to confirm their status.
              Kotz testified that he approached the persons in the Jacuzzi and
asked if they were tenants. One of the women said she was. When Kotz asked
to see her key, he was told that a third woman had taken it to return to her
apartment. Kotz said he would return later to confirm their status.
              As Kotz walked away, Appellant aggressively yelled, "I'll
remember your face, fool." Kotz said, "What did you say?" Appellant then got
out of the Jacuzzi and approached Kotz saying, "You heard me." Appellant was
shirtless and a tattoo announcing his status as a member of the El Rio street gang
was plainly visible on his chest. "Trouble Street" was tattooed on Appellant's
back. Kotz was aware that the El Rio gang is a violent criminal street gang in
Oxnard.
              Kotz then told the woman she and her companions would have to
leave because of Appellant's actions and because they could not produce a key.
Appellant confronted Kotz. He stood about a foot in front of Kotz, stuck out his
chest and said, "You're disrespecting me." Appellant came within inches of
Kotz, and while pointing at his El Rio tattoo repeatedly said, "Do you know
where I'm from? From El Rio." Kotz felt threatened by Appellant's words and
gestures. As Kotz moved away from Appellant toward an exit, Appellant moved
too, telling Kotz, "Follow me." Appellant told one of the women in the group
that he was "going to take care of" Kotz.



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              Kotz regarded these words and gestures to be threats, believed
Appellant was challenging him to fight and concluded that he was about to be
attacked. Hoping to discourage Appellant, Kotz began to record the event on his
mobile phone. Appellant then displayed his middle finger and pushed Kotz and
again told him to come with him.
              Later, Appellant confronted Kotz in the parking lot and offered the
threat "Wait 'till I see you on the street" and threatened to "catch him on the
street." Kotz reported the incident to the police when his shift at the apartments
ended. Appellant was arrested but when interviewed, denied being involved in
any incident at the apartments or even of being there on the day in question.
                                   DISCUSSION
              Appellant contends the trial court erred by refusing to add a phrase
to instruction CALCRIM No. 2688 that would advise the jury that it could not
find him guilty of the crime of challenging another person to fight by "[t]he mere
use of a vulgar, profane, indecorous, scurrilous, opprobrious epithet . . . ." We
disagree.
              CALCRIM No. 2688 details for the jury the elements of the crime
prosecutors were required to prove; viz., (1) that Appellant willfully and
unlawfully challenged Kotz to fight; and (2) that Appellant and Kotz were in a
public place. The instruction explains that "[a] challenge to fight means actions
and/or words which communicate to a reasonable person that he or she is being
invited or challenged to engage in a physical fight. In determining whether there
has been a challenge to fight, you shall consider all of the evidence presented in
this case."
              The special instruction proposed by Appellant is based upon a false
premise. His argument and the authority he cites assume he was charged with a
violation of section 415, subdivision (3) - uttering offensive words that were
inherently likely to provoke an immediate violent reaction. He was not. The
crime charged was violating section 415, subdivision (1) - challenging Kotz to


                                         3
fight. The crimes are dissimilar and the principles that apply to one do not apply
to the other.
                Whether or not someone has been challenged to fight requires
consideration of "all of the evidence," including any "vulgar, profane,
indecorous, scurrilous, opprobrious epithet[s]" uttered by Appellant in the
context of the entire confrontation - just as the jury here was instructed. It is the
totality of the circumstances that matters. It is all relevant, and there is no
protected speech in the utterance of a challenge to fight. CALCRIM No. 2668
accurately restates the law applicable to the crime charged and properly guides
the jury in what to consider in reaching its verdict.
                The decisional law cited by Appellant does not support the
instruction he requested. In re Alejandro G. (1995) 37 Cal.App.4th 44 addresses
section 415, subdivision (3) that makes offensive words unlawful if they are
"likely to provoke an immediate violent reaction" - so-called "fighting words."
In re Brown (1973) 9 Cal.3d 612 addresses the elements of unlawful assembly a
crime then proscribed by section 408 and section 415, subsection (2) [loud
noises]. In Jefferson v. Superior Court (1975) 51 Cal.App.3d 721 the court
addressed offensive words likely to produce a violent reaction, not the crime of
which Appellant was charged and convicted. Finally, Cohen v. California (1971)
403 U.S. 15 was decided before section 415 was amended in 1974 to respond to
decisions of the United States Supreme Court invalidating portions of the
previous version of section 415. Subdivision (1) of the section, however, has
been the same since 1850.
                The amendments to section 415 were explained in In re Cesar V.
(2011) 192 Cal.App.4th 989. The explanation demonstrates why no specific
intent is required to prove a violation of section 415, subdivision (1) and why
none of the words and conduct of the parties to a confrontation is excluded from
consideration in determining whether a challenge to fight was uttered.



                                          4
              "The new version [of section 415] was intended to 'regulate pure
speech (without the necessity of any other conduct) when the communication
would tend to result in a violent reaction.' [Citation.] The old version of . . .
section 415 had no subdivisions and prohibited a variety of speech and conduct
in a single sentence. In contrast, the new version contained three subdivisions,
each of which covered a distinct type of offense . . . . Section 415, subdivision
(1) contained no reference to any mental state whatsoever, and applied only to
'fights' and 'challenges . . . to fight' that occurred in a public place. Subdivision
(2) explicitly required that the perpetrator act 'maliciously and willfully,' applied
only to 'disturb[ing] another person by loud and unreasonable noise,' and was not
limited to events that occurred in public places. Subdivision (3) did not refer to
any mental state and applied to the use of 'offensive words in a public place,' but
was restricted to words 'inherently likely to provoke an immediate violent
reaction.' [¶] The Legislature's use of three separate subdivisions was part of a
carefully calibrated scheme designed to prohibit communications that 'would
tend to result in a violent reaction.' Because a fight or challenge to fight in a
public place necessarily tends to result in a violent reaction, the Legislature
found no need to delimit the application of subdivision (1). On the other hand,
because 'offensive words' and 'loud and unreasonable noise' do not necessarily
tend to result in a violent reaction, the Legislature imposed additional
requirements designed to limit these prohibitions to those words and noises
which 'would tend to result in a violent reaction.' [¶] The Legislature's
calibration of the mental states and other elements required under each
subdivision of . . . section 415 was inherently reasonable. A challenge to fight is
prohibited because such a challenge may provoke a violent response that
endangers not only the challenger but any other persons who may be in the
public place where the challenge occurs. . . . If a person challenges another
person to fight in a public place, he or she violates . . . section 415, subdivision
(1)." (In re Cesar V., supra, 192 Cal.App.3d at pp. 998-999.)


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                                DISPOSITION
             The judgment is affirmed.
             NOT TO BE PUBLISHED.




                                             BURKE, J.*


We concur:



             GILBERT, P. J.



             PERREN, J.




*
 (Judge of the Superior Court of San Luis Obispo County, assigned by the Chief
Justice pursuant to art. 6, § 6 of the Cal. Const.)

                                         6
                            Matthew P. Guasco, Judge

                        Superior Court County of Ventura
                       ______________________________


              Stephen P. Lipson, Public Defender, Michael C. McMahon, Chief
Deputy, Supriya Bhat and William M. Quest, Deputy Public Defenders for
Defendant and Appellant.
              Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Stephanie
A. Miyoshi, David F. Glassman, Deputy Attorneys General, for Plaintiff and
Respondent.
