People v. Rodriguez CA2/6

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.