People v. Lopez

• Decision Date: 08 June 2005
• Docket Number: No. H026476.,H026476.
• Citation: 129 Cal.App.4th 1508,29 Cal.Rptr.3d 586
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Monty LOPEZ, Defendant and Appellant.

29 Cal.Rptr.3d 586

129 Cal.App.4th 1508

The PEOPLE, Plaintiff and Respondent, v. Monty LOPEZ, Defendant and Appellant.

No. H026476.

Court of Appeal, Sixth District.

June 8, 2005.

Danalynn Pritz, Law Offices of Pritz & Associates, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Allen R. Crown, Deputy Attorney General.

WALSH, J.^*

Defendant Monty Lopez celebrated Easter Sunday in 2003 by having a few beers with family and friends in the yard of his San Jose duplex. His loud conversation disturbed his next-door neighbor, who called the police on him, as she had before. The officer who arrived first at about 8:40 p.m. thought he would be able to defuse the situation by talking to both people. Defendant reacted aggressively to the officer's presence, swearing, telling him to leave, and challenging him to fight. A friend restrained defendant. Other officers were called. Despite defendant's verbal and physical resistance, the officers were eventually able to handcuff him and take him into custody. This led to a jury convicting defendant of one felony, resisting or attempting to deter the performance of an executive officer's duties, and three misdemeanors, disturbing the peace, battering a peace officer, and resisting a peace officer.

Here we will determine, among other things, that defense counsel should have objected to evidence that each of the four defense witnesses had been arrested and that three of them had committed misdemeanor batteries and that defendant's invocation of his right to counsel, however colloquially phrased ("Fuck you. I want to talk to my lawyer"), should not have been construed as an adoptive admission. These errors require a reversal of the judgment.

TRIAL EVIDENCE

Maliciously disturbing another person by loud and unreasonable noise (count 1)

According to Clara Senteno, she and defendant were initially friendly neighbors, but this deteriorated when defendant's "girlfriend" returned. Senteno had called the police on defendant several times before Easter Sunday, April 20, 2003.

On April 20, 2003, as Senteno was cleaning up her yard after a barbeque, she heard defendant through the fence separating their properties. He was outside, speaking loudly to friends, saying repeatedly, "`Fucking niggers. Fuck them niggers. Come on, Chino. Let's go get `em. Let's go blow their house up.'" Senteno's husband, Robert Harrison, is an African American. Harrison was away visiting a friend when defendant made these statements, though earlier that afternoon he had heard defendant talking loudly. Defendant had confronted Senteno with similar language before. On Easter Sunday, Senteno felt endangered and called the police.

Defendant did not testify at trial. The four defense witnesses — defendant's wife, Catherine;¹ his neighbor and friend, Ebrahen "Chino" Montoya; Chino's wife, Anna Vasquez; and Chino's son, Ibrahin — denied that defendant used any racial slurs and threatened anyone that day. Ibrahin testified that he, defendant, and his father were drinking beer that afternoon and talking loudly and cursing. They were talking about getting the people "on the other side." They did not mean the next-door neighbors, but the drug dealers behind their house. They were talking about dressing up like police and performing citizens' arrests. Catherine stated that defendant had enough to drink to make him a little drunk.

On cross-examination, Catherine admitted that she was arrested for forgery in 1998 and had been arrested by the police other times.² Chino admitted that he committed a battery in September 2001 and gave a false name to a police officer in January 2002. Anna Vasquez admitted an arrest for domestic violence in April 2003 and a conviction of a misdemeanor, the nature of which is unclear. Ibrahin admitted that he had been arrested about a month earlier. A year earlier he had committed an assault and battery in New Jersey. All these crimes were misdemeanors.

Deterring or resisting the performance of an executive officer's duties by means of force or violence or threat thereof (count 2)

San Jose Police Officer David Seminatore responded to the disturbance call of threats between neighbors around 8:40 p.m. in uniform and in a marked patrol car. Having previously responded to several calls between these neighbors, he believed he could resolve it without another officer and without an arrest.

Seminatore spoke briefly to Senteno to determine her complaint and to establish that she would not be a problem. Seminatore next sought to speak with defendant. Defendant was squatting with a young child in the yard behind a duplex. Defendant and his family lived in the front unit of the duplex. Chino and his family lived in the back unit. About six people were around defendant. Seminatore approached defendant by walking down the driveway of the neighboring duplex. Photographs that were in evidence showed that the driveways of the two duplexes are separated only by a small dirt strip.

According to Seminatore, as he approached defendant, defendant's wife asked why he was there. Defendant angrily shouted several times, "who the fuck is that?" Seminatore explained that there had been another complaint from their neighbor.

Defendant stood up and approached Seminatore, staggering as he walked. He appeared to be intoxicated, though able to care for himself. About five to eight feet from Seminatore, defendant leaned against a car in the driveway of his duplex. Seminatore explained that the neighbor had called. He asked if defendant had threatened her. Defendant replied, "I don't give a fuck" and "fuck them." Defendant removed a folding knife from his pants pocket and Seminatore took it from him.

According to defendant's wife and Chino's wife, Seminatore did not explain why he was there. Instead he just belittled defendant about being drunk and tried to provoke him by staring at him. According to Chino, Seminatore said that he was not there to arrest defendant, but he was responding to a neighbor's complaint that defendant was encouraging people to attack the neighbors.

Seminatore repeatedly tried to obtain defendant's reassurance that there would be no more problems if he left. Defendant swore and said he did not care about his neighbors complaining. He did not like them looking at the back of his house.

Chino and others told defendant to calm down. They reminded him he did not want to be arrested in front of his child.

After a few minutes of conversation, defendant repeatedly told Seminatore, "get the fuck out of here." As defendant was shouting, his friends were yelling for him to calm down. Defendant moved away from the car and faced Seminatore with clenched fists. Chino, a large man, stepped between them, grabbed defendant, and held him against the car. His son, Ibrahin, helped. Chino testified that he was holding defendant back against the car because the officer was provoking him. Chino's wife heard defendant say, "This is a free country. Leave me alone," but not "get the fuck out of here." Chino heard defendant say get out of here without swearing.

Seminatore backed up and called on his radio for a fill unit. Defendant struggled to be released and said that Seminatore better call everyone. When he was momentarily released, he pulled his jacket off and said, "come on," which sounded to Seminatore like a challenge to fight. Chino again physically restrained defendant. Seminatore called for a "code three fill" emergency assistance.

As sirens approached, defendant became more agitated and said, "`Come on, mother-fucker.'" Seminatore decided to arrest defendant for challenging him to fight and threatening him.

Resisting or obstructing the discharge of a peace officer's duties (count 4)

A number of officers arrived in three patrol cars. Four officers walked up. Seminatore told them defendant had challenged him to fight and he needed help in taking defendant into custody. Chino complied with Seminatore's requests to release defendant and move away. San Jose Police Officer Gabriel Reyes told Officer Michael Bui to arrest and handcuff defendant.

Several officers told defendant he was under arrest. Defendant asked why they were "messing with" him. Officer Bui told defendant to turn around and put his hands behind his back. Defendant, who smelled of alcohol, did not comply. He resisted Bui's attempt to put his left arm in a twist lock. He squared up on Bui with clenched fists. Seminatore grabbed one of defendant's arms. Defendant said, "No, you don't." Other officers tried to get defendant's arms behind him.

Officer Reyes said they should take him down. Seminatore tried unsuccessfully to sweep defendant's legs out from under him. The force of several officers pushed defendant to his knees and then facedown on the ground. Officer Reyes struck defendant twice on his buttocks with his baton to deter him from kicking the officers. Defendant pushed himself up to his hands and knees. Officers Bui and Reyes told defendant to stop resisting. As defendant got up, an officer used pepper spray that hit defendant and Seminatore, who was right behind defendant. Seminatore jerked back and hit Reyes's head with the back of his head. Seminatore was blinded for about 20 minutes. Defendant continued to struggle and yell.

Other officers, including Beiderman, Johnson, and Bui, subdued defendant enough to handcuff him. They had to carry him 30 feet to a patrol car because defendant dragged his feet. Defendant kept swearing at the officers.

According to Chino, his wife and son, and defendant's wife, the other officers swarmed defendant, put him on the ground, and kneed his back and head without first speaking to Officer Seminatore and without defendant resisting, struggling, or using racial slurs.

Using force or violence on a peace officer known to...