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Free Speech

Trial Court Focused Too Much on Racial Slurs by Defendant Towards Police Officers

So holds the California Court of Appeal, in sending back to a different judge defendant's motion to retroactively downgrade her conviction (for non-slur resistance to the officers) to a misdemeanor.


From People v. Araujo, decided Tuesday by the California Court of Appeal (Justice Anthony Kline, joined by Justices James Richman and Therese Stewart):

Rosa Adriana Araujo was convicted in 2008 of three felony counts of attempting to deter or resisting an executive officer in the performance of duty by means of threats or violence. She now appeals from denials of her motions to reduce the convictions to misdemeanors and dismiss them….

Araujo's offenses occurred … when police officers went to her parents' house to conduct a probation search on her brother…. [A]ccording to the testimony of officers who were at the scene, Araujo arrived at the house shortly after the search had begun, irate, repeatedly yelling, "get the fuck out of my house, you fucking pigs," demanding to see a warrant, and saying her brother did not live there and was not on probation.

As Sergeant Peruzzaro tried to explain no warrant was required and warned she would be arrested if she obstructed the investigation, Araujo continued yelling the same things, as well as something like "die you fucking pigs, 187 on a cop," which officers understood as a reference to the Penal Code section for homicide…. Araujo spit at Peruzzaro, hitting his arm and hand, and continued down the hall, yelling obscenities and "nigger" at Detective Stewart, an African-American officer who was in front of her.

Detectives Stewart and Teixeira attempted to put Araujo's hands behind her back to handcuff and arrest her and she resisted, trying to twist out of their grasp and saying to Stewart, "Fuck you nigger." She continued to resist after being handcuffed, turning her body from left to right, squeezing the officers' fingers, spitting on them, stomping on their feet, and at one point grabbing Stewart's crotch. She called Stewart "nigger" more than 30 times, called him a "porch monkey" several times, and told him he "needed to go back to Africa."

As the officers started to move Araujo out of the house, she began yelling that they were raping and sexually assaulting her, as well as continuing to yell "nigger." She put her hand on the holster of Teixeira's gun; he slapped it away ….

During the struggle, Araujo's racial epithets were directed only at Stewart, not at Teixeira. Officer Wong put a spit hood on Araujo because he saw spit "flying everywhere" and hitting the detectives, and she called him a "chink."

After a trial in 2008, the jury found Araujo guilty of the three charged felony counts of attempting to deter or resisting an executive officer in the performance of duty by means of threats or violence. The jury found not true a hate crime allegation attached to the count involving Officer Stewart.

On January 16, 2009, the trial court suspended imposition of sentence and placed Araujo on three years' probation, with conditions including that she serve 45 days in county jail…. On May 8, 2009, the probation department alleged that Araujo violated probation by failing to follow reasonable directives of the probation officer to remain still and compliant during a routine probation search. The incident occurred when probation officers attempting to conduct a routine probation search on Araujo and her brother met resistance from Araujo's mother and brothers. Araujo yelled at the officers, accused them of hurting her mother, and, when an officer grabbed her arm to her lunging at the officers and her mother, continued to move toward them. Araujo ignored repeated directions to stop moving, called the probation officer a "bitch," and numerous times called the police officers "pigs." …

Araujo admitted the violation and the court revoked probation, then immediately reinstated it under the previously imposed terms and conditions, with the additional condition that Araujo serve 60 days in county jail with 45 days credit for time served….

Section 17, subdivision (b), governs the circumstances in which "wobbler" offenses such as Araujo's, which can be treated as either felonies or as misdemeanors, are deemed misdemeanors [including retroactively] ….." A trial court has broad discretion in deciding whether to reduce a wobbler to a misdemeanor. "The relevant criteria in exercising that discretion include the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial." …

Araujo contends the trial court abused its discretion by denying her motions due to the "disgusting language" she used in the commission of her offenses, thereby improperly punishing her for speech that is protected by the First Amendment …. She correctly points out that the caselaw is extremely protective of the right to free expression, even when the speech at issue is highly offensive to others and particularly when it is directed at police officers…. [T]he Supreme Court has recognized that "even the 'fighting words' exception … might require a narrower application in cases involving words addressed to a police officer, because 'a properly trained officer may reasonably be expected to exercise a higher degree of restraint than the average citizen, and thus be less likely to respond belligerently to fighting words.'" [Examples of cases protecting vulgar insults of police officers omitted. -EV] …

Araujo concedes that her conduct in 2008—including struggling, spitting, and hitting officers—was not solely verbal and her physical conduct was not protected by the First Amendment. Araujo was also threatening violence …. [In the decision refusing to retroactively downgrade the offense to a misdemeanor], however, Araujo argues that the prosecutor and court relied solely on her offensive, racially charged words in their portrayal of the seriousness of her offenses, and the consequent denial of her motions resulted in punishment in violation of the First Amendment.

The record supports Araujo's characterization of the prosecutor's and court's focus. The prosecutor's written opposition argued, "considering that the victim suffered no physical injuries and no one was actually sexually assaulted or harmed, these are some of the most vile facts … this author has had to put into print. The defendant is obviously the type of person who thinks she can use hundreds, if not thousands, of years of people's collective pain and trauma to her advantage in situations where she is quite obviously in the wrong. She repeatedly and intentionally directed the most abhorrent, racially charged word of our time at black police officer, while perpetrating violence and quite literally spitting on that same police officer, as well as others. This was an escalation from her prior conduct of pointing out African-American college students and staff and screaming racial epithets at them in public.

"But the defendant wasn't done. She then accused that same black officer and other officers, of rape. There was no misunderstanding of the situation here; this was entirely fabricated, and she knew it. She devalued the experience, pain, and trauma of real sexual assault and rape victims by claiming the officers sexually assaulted and raped her to attempt to gain some advantage in the situation. Furthermore, she falsely accused a black man of rape and sexual assault, a practice with a grim history in this nation. No doubt she was trying to scare and intimidate the officers into releasing her and letting her and her brother go about their felonious business.

"Finally, she attempted to insinuate that her probation officer was assaulted by an ex-boyfriend causing facial scar. She attempted to tap into some trauma that may or may not be there, to hurt her probation officer…."

[Likewise, a]t the hearing, the prosecutor did not refer to Araujo's physical conduct; her remarks solely addressed Araujo's words and lack of remorse. As to the former, the prosecutor urged: "[T]he facts of this crime cause a visceral reaction in anyone who hears them. It is some of the most disgusting language …. She wasn't using it in a hard 'R' fashion. [¶] We are in a reckoning in this country when it comes to race and racism and how we treat that. We're in a time where we're considering—or actually tearing down statutes [sic] of people who have had … awful records of race from hundreds of years ago. [¶] The passage of time does not forgive or forget Araujo's actions in this case."

The trial court, too, focused on Araujo's words in referring to the offenses. The court's explanation of its ruling began, "The underlying crime is beyond disgusting. The vile and disgusting language that she used not only against law enforcement officers, but law enforcement officers of color, including African-American and of Asian [descent]. [¶] And this isn't a one-off. This is someone who went to CSM, College of San Mateo. And any African-American that she saw, she also had the same reaction and disgusting behavior towards." {The written opposition [had] briefly related two incidents in which Araujo used racial epithets against individuals she encountered at the College of San Mateo (CSM): On January 29, 2008, she became irate at an African-American security guard who asked her to use the proper stairwell and called him a "stupid fucking nigger," and on February 5, 2008, without provocation, she called an African-American student "Fucking monkey, jiggaboo and nigger."} …

This focus is troubling. Araujo's racially charged language was deeply offensive. But this offensive language was not the basis of her criminal conduct except as it defined the circumstances in which the conduct underlying her conviction occurred…. The court's focus [on this language] thus gives credence to Araujo's claim that in denying her motions, the trial court in effect punished her speech which has not been shown to be, in itself, outside constitutional protection.

The focus on Araujo's offensive language is concerning for additional reasons. One of these is the strong indication in the record that some form of mental illness, or at least psychological issues, could have played a role in Araujo's offenses. [Details omitted. -EV] … The sentencing court saw Araujo as having "a problem controlling her immediate thoughts. Many of her thoughts, when she's angry or feels under attack, are tinged with racially inappropriate epithets. But she also says all sorts of other very nasty things to other people that are not necessarily racially motivated." …

Additionally, it is noteworthy that the two incidents at CSM, the offenses for which Araujo was convicted, and her subsequent probation violation in May 2008 all occurred within a span of less than four months. The record reflects no offenses since, perhaps consistent with the psychologist's suggestion that Araujo was in a particularly extreme state of distress at that time….

[T]he prosecutor's focus on Araujo's racial language and explicit and implicit depiction of her as unequivocally racist was [also] plainly at odds with the jury's and sentencing court's more nuanced conclusions at trial. Given the extremity of Araujo's racial language, it would appear the jury's not true finding [as to the hate crimes charge] means at least some jurors were swayed—at least to the point of finding a reasonable doubt—by Araujo's defense that her conduct was not due to bias but an expression of anger and attempt to protect herself from what she believed was excessive use of force by the police….

The result is an appearance that Araujo's motions were denied largely because of the court's view of her speech as racist. This appearance is bolstered by the court's statement, in announcing its ruling, "I can't think of someone who deserves a motion to reduce and dismiss less than Araujo." The statement is obviously hyperbole: Araujo's egregious use of racial epithets notwithstanding, [attempts to resist an executive officer by means of threats or violence] involving no weapon and no resulting physical injury are not the most serious offenses a person can commit, and many defendants fail to remain free of further criminal sanction for 10 years. In light of the court's further remarks— that the underlying crime was "beyond disgusting," Araujo used "vile and disgusting language" against law enforcement officers of color, and this was consistent with her conduct toward African-Americans she encountered at CSM—it is difficult to escape the conclusion that the trial court's abhorrence for Araujo's offenses was due primarily to the language Araujo used and inference of racial animosity the court drew from it.

This conclusion is also supported by the court's exaggeration of the evidence of prior incidents involving what appeared to be racist speech. Referring to the evidence of the incidents at CSM as demonstrating the February 2008 incident from which the convictions arose was not a "one-off," the court said, "any African-American that [Araujo] saw" at CSM "she had the same reaction and disgusting behavior towards." By broadly generalizing evidence showing incidents with two African-American individuals at CSM shortly before the February offenses to "any African-American" Araujo saw, the court expressed a view that Araujo's use of offensive racial language was part of her character….

To be clear, we are not saying the court was required to ignore Araujo's language, which was extraordinarily offensive and surely contributed to the tension and volatility of the situation…. We are also not saying the trial court necessarily should have granted Araujo's motions. Araujo's offenses were very serious and her performance on probation not exemplary, at least at the beginning….

The trial court was required, however, to impartially exercise its discretion in light of all the relevant circumstances bearing on Araujo's motions. A court abuses its discretion if its decision is based on impermissible factors or an incorrect legal standard…. [T]he court's consideration of the motions appears to have been overwhelmingly influenced by its view of the language Araujo used during the offenses and in two incidents a few weeks prior to the offenses, and inferences drawn from that use of language about Araujo's character 10 years later.

We cannot conclude the trial court exercised its discretion impartially and with full consideration of the relevant circumstances. We therefore reverse the orders and remand for reconsideration of the motions. Because Judge Garratt's "comments give rise to a reasonable doubt about whether [she] can be impartial in this case," further proceedings shall be conducted by a different judicial officer.