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Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Michael ROMBERG and Debra Lee Foster, Defendants and Appellants.

B 002634.

Decided: February 24, 1984

Robert H. Philibosian, Dist. Atty. of Los Angeles County by Donald J. Kaplan, Dirk L. Hudson, Deputy Dist. Attys., for plaintiff and respondent. Stephen R. Butler, Inc., Norwalk, for defendants and appellants.

Defendants were convicted by a jury in the Municipal Court of the Downey Judicial District of violating Penal Code section 415 (disturbing the peace).

On appeal to the Appellate Department of the Superior Court of Los Angeles County the judgments of conviction were reversed and the case ordered dismissed on the basis that the evidence was insufficient to support the judgments.

The appellate department certified its opinion for publication.   We ordered transfer to this court pursuant to Rule 62(a) of the California Rules of Court.   We affirm the judgments.

The incident which led to defendants' convictions occurred in a small second story apartment where they resided.   The various witnesses who testified to the nature of the disturbance were occupants of adjoining and neighboring apartments as well as deputy sheriffs who were summoned by those neighbors.

Viewing the evidence in the light most favorable to the judgment according to the rule governing appellate review (People v. Johnson (1980) 26 Cal.3d 557, 162 Cal.Rptr. 431, 606 P.2d 738;  People v. Redmond (1969) 71 Cal.2d 745, 79 Cal.Rptr. 529, 457 P.2d 321) the record discloses that for a period of approximately 15 to 30 minutes, beginning at around 9:00 p.m. on the day in question, defendants engaged in a screaming and shouting encounter which was punctuated by loud thumping or banging against the floor and walls of the apartment.

According to a witness who resided just underneath the defendants “I just heard [defendant Romberg] yelling and [defendant Foster] crying and pounding upstairs and things falling over or stomping․”  “․ It sounded like people walking hard or falling over․”

That same witness called the sheriff's office and said “․ I think the guy upstairs is beating up his girl friend.”   Her reason for calling the sheriff was “I didn't know what was happening, if she was hurt or if he was hurt.”

A witness who lived in an adjoining apartment testified that he heard both defendants screaming intermittently for about one half hour.   Pounding on defendants' side of the common wall caused a mirror hanging on the witness' wall to be “knocked away from the wall ․”

A radio car containing two deputy sheriffs responded to the neighbor's call.   As the deputies alighted from the car they could hear “screams, yelling, things breaking and banging around inside of the apartment ․”  They observed about 10 to 15 of the neighbors standing in a courtyard outside of their apartments with their attention directed to defendants' apartment from which the noise was emanating.

As the deputies ascended the stairs to the second level they could see through a screen door into defendants' apartment.   Defendant Foster was sitting semi-nude on the floor and pounding on the floor with some unidentified object.   Defendant Romberg, fists clenched, was standing over her and yelling.

The deputies at that point detected an odor of what appeared to them to be PCP.   Acting on the belief that the defendants could be under the influence of PCP, and drawing on their experience in dealing with persons in such condition the deputies repaired to the police car to summon assistance.

Upon returning to the apartment, the deputies encountered defendant Romberg in the front part of the apartment.   He began yelling at the deputies and poking one of the deputies in the chest with his finger.

Codefendant Foster was found lying on a bed crying.   She was brought into the living room where both defendants were handcuffed and caused to be seated.   The defendants continued to yell and scream at each other, each accusing the other of being responsible for the deputies having been called.   When it appeared that defendants were not disposed to terminate the hostilities, they were removed to jail.   No PCP was discovered in the apartment.

As might be expected, by the time of trial, the neighbors were not particularly eager witnesses and expressed the thought that the deputies, in effect, should have simply acted as “referees” in the dispute without arresting defendants.   Defendants themselves had married each other by the time of trial.

Defendants' version of the events, needless to say, was somewhat at variance with that of the deputies and even that of the neighbors.   The defendants portrayed the scene as a jealous lover's quarrel with slightly raised voices.   They did admit having had a number of “Mai Tais” prior to the “quarrel.”

Again, as is so often the case in matters of this type, the defense focussed primarily on the conduct of the deputy sheriffs.   On appeal the defendants make the argument that the deputies were guilty of an unlawful entry into the apartment and false arrest.

While it appears from the record that the deputies comported themselves in a perfectly reasonable and proper fashion, we hasten to point out that the validity of the arrest was and is completely irrelevant.

The court had jurisdiction over the subject matter and the defendants regardless of how the defendants' presence in court was procured.  (Frisbie v. Collins (1952) 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541;  People v. Schweitzer (1982) 138 Cal.App.3d 204, 187 Cal.Rptr. 696.)   None of the evidence offered at the trial was procured in a manner which was related to the arrest of the defendants.   The observation of the witnesses, including those of the deputies, was competent evidence totally unaffected by the arrest.   (See United States v. Crews (1980) 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537;  Cf. People v. Teresinski (1982) 30 Cal.3d 822, 180 Cal.Rptr. 617, 640 P.2d 753.)

That brings us to the critical issue of whether the evidence was sufficient to establish that defendants committed a violation of Penal Code section 415.

 At the time the offense in question occurred, Penal Code section 415 provided:  “Any of the following persons shall be punished by imprisonment in the county jail for a period of not more than 90 days, a fine of not more than two hundred dollars ($200), or both such imprisonment and fine:  (1) Any person who unlawfully fights in public place or challenges another person in a public place to fight.  (2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise.  (3) Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.”

Here of course we are concerned only with subdivision (2).   We have no trouble concluding that the evidence supports the jury's conclusion that (1) defendants willfully and maliciously engaged in the conduct which created the disturbance, (2) that the conduct produced loud and unreasonable noise, (3) defendants reasonably should have known that the noise could be heard by others, and (4) other persons were disturbed thereby.   Thus the evidence adequately supported the judgments of conviction.

 Defendants argue, and the appellate department agreed, that the protection of free speech to be found in the First Amendment of the United States Constitution prevents application of the proscription of Penal Code section 415 to their conduct.

Focussing only on the defendants' yelling and screaming, while ignoring the other forms of noise, and drawing on selected passages from In re Brown (1973) 9 Cal.3d 612, 108 Cal.Rptr. 465, 510 P.2d 1017, a case which clearly involved communicative speech of a political nature, defendants would have us conclude that this garden variety “brawl” was somehow a form of protected speech or at least was beyond the pale of Penal Code section 415.

It is true that in In re Brown, supra, at pages 620–621, 108 Cal.Rptr. 465, 510 P.2d 1017, the court stated “Although reasonable regulation on the volume of speech are permissible, a prohibition of all loud speech is not.   [Citations.]  We conclude that section 415 cannot, consistent with First Amendment rights, be applied to prohibit all loud speech which disturbs others even if it was intended to do so.”   Further on page 621, 108 Cal.Rptr. 465, 510 P.2d 1017, the court stated:  “We are satisfied that loud shouting and cheering constitute the loud ‘noise’ prohibited by section 415 only in two situations:  1) where there is a clear and present danger of imminent violence and 2) where the purported communication is used as a guise to disrupt lawful endeavors.”

Overlooked by defendants is a passage in In re Brown, at page 621, 108 Cal.Rptr. 465, 510 P.2d 1017, which states:  “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.   As stated in Giboney v. Empire Storage Co. (1949) 336 U.S. 490, at 502, 69 S.Ct. 684, at 691, 93 L.Ed. 834:  “ ‘it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language either spoken, written, or printed.’   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.”  (Emphasis added.)

Of course among the “lawful endeavors” which may be protected against disruption by loud, unreasonable non-communicative speech or noise is simply that of living in one's own home in peace and tranquility.

A citizen has a right to expect that his peace and tranquility will not be shattered by the noise of his neighbors screaming, yelling and pounding on the walls and floors.   Hence the enactment and enforcement of a criminal statute, such as Penal Code section 415, designed to effectuate that expectation, is a proper governmental function which should not be lightly set at naught by an unwarranted and distorted judicial interpretation of what constitutes protected speech.

The judgments are affirmed.

COMPTON, Associate Justice.

ROTH, P.J., and BEACH, J., concur.