Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JV120463
BUTZ, J.S.R., a minor, appeals from an order of the juvenile court declaring her a ward of the court and placing her on home probation based upon a finding she obstructed a police officer in the performance of her duties (Pen. Code, § 148, subd. (a)(1) [hereafter section 148(a)(1)]). The court found a charge of child endangerment (§ 273a, subd. (b)) not true.
Undesignated statutory references are to the Penal Code.
The minor contends reversal of the finding that she violated section 148(a)(1) is required because (1) the evidence is insufficient to support the sustaining of the charge, and (2) the probation department and juvenile court violated the Indian Child Welfare Act of 1978 (ICWA). We reject the contentions and shall affirm the court’s order.
FACTUAL BACKGROUND
During the afternoon of July 26, 2005, several police officers, including Sacramento Police Department Detectives Kevin Patton, Michelle Schrum and Paul Schindler, executed a search warrant for an apartment in Sacramento. All the officers were in uniform. Inside the residence were three infants and five young adults, one of whom was the minor, age 16. The minor was seated on the floor holding her 11-month-old son.
Upon the officers’ entry, they yelled for the occupants to show their hands, get on the floor, and not move. As the officers began identifying the occupants, they were distracted by the minor who was yelling, “What the fuck are you guys doing here? Who the fuck are you? I didn’t do shit. I don’t live here.” Detective Patton explained to the minor that the officers were serving a search warrant for narcotics and that they needed to detain everybody. The minor responded, “Fuck you. Who are you? You ain’t doing shit to me.”
After unsuccessfully attempting to get the minor to identify herself, Detective Patton watched as the minor began changing her son’s diaper, wiping the baby’s bottom “[v]ery vigorously.” As the minor continued changing her baby, Detective Patton told her that when she was finished with changing the diaper she was going to be handcuffed. The minor responded, “Fuck you. You’re not putting handcuffs on me. I’m leaving as soon as I’m done changing my baby’s diaper.”
After the minor completed changing the diaper, Detectives Patton and Schrum told the minor to stand up, but she refused to do so, saying, “You’re not touching me,” “You’re not going to handcuff me.” With the baby now screaming, Detectives Patton and Schrum continued to tell the minor to let go of the baby and stand up, but she would not comply. Detectives Patton and Schrum attempted to get the baby from the minor so they could handcuff her, but the minor kept a “tight grasp” and would not release the child.
Detective Schindler, who had been watching Detectives Patton and Schrum trying to get the minor to release the baby, then attempted to get the minor to release her grasp on the child, but she still would not do so. Fearful that the minor was hurting the child, and unwilling to “try and yank the baby out of her arms,” Detective Schindler used a “distraction technique”--he grabbed the baby with his right hand and slapped the side of the minor’s face with his left hand. The slap was not hard and left no mark, but it did cause the minor to let go of the child. Detective Schindler took the baby and gave it to another occupant of the house.
The minor testified that when the officers entered they had their guns drawn and ordered everyone to get on the floor. The minor was already on the floor and was in the process of changing her son’s diaper. The baby started to cry and the minor rocked the child to comfort it. Although the minor claimed that none of the officers spoke to her “personally,” she also testified that Detectives Schrum and Patton began pulling on the baby and telling her to “[l]et the baby go.” As a “caring parent” the minor “just [doesn’t] let [her] baby go when somebody says, ‘Give me your baby’” so the minor continued to keep ahold of the child.
Detectives Schrum and Patton stopped pulling on the baby, grabbed the minor’s hands and put them behind her back. At that point, Detective Schindler grabbed the baby, slapped the minor and walked away. The minor denied that any of the detectives ever told her to give them the baby because “[w]e need you to stand up.”
Derek Gonzales testified that he was outside the house at the time the officers entered and he “heard a slap” and then he heard the baby crying.
DISCUSSION
I
Relying on People v. Quiroga (1993) 16 Cal.App.4th 961 (Quiroga), the minor argues the evidence is insufficient to support the finding that she obstructed Detective Schrum in the performance of her duties. This is so, the minor claims, because her “verbal challenges” are protected by the First Amendment and her “lack of alacrity” in responding to the detectives’ orders is an insufficient fact for proof of an obstruction of Schrum’s duty. The minor also argues the officers were acting outside the scope of their duty by their use of excessive force. We reject these claims and find Quiroga distinguishable.
“When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence--i.e., evidence that is credible and of solid value--from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.” (People v. Green (1980) 27 Cal.3d 1, 55, overruled on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3, disapproved on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 233-237; In re Frederick G. (1979) 96 Cal.App.3d 353, 362-365.)
Section 148(a)(1) provides: “Every person who willfully resists, delays, or obstructs any . . . peace officer . . . in the discharge or attempt to discharge any duty of his or her office” is guilty of a criminal offense.
In Quiroga, Officer Greg Stefani and other officers responded to a noisy party call at an apartment and saw a female smoking a marijuana cigarette. They entered and asked for the cigarette. Quiroga, who had been seated on a couch, stood and started to walk down a hallway. Officer Stefani ordered Quiroga to return to the couch. Before complying, Quiroga argued with Stefani, telling him that he needed a search warrant and to get out of the house. While on the couch, Quiroga continued to tell the officers they needed a warrant, they were to get out of the house, and he moved his hands as though trying to hide something. Stefani ordered Quiroga to stand up, but Quiroga refused several times before complying. Quiroga was placed in a corner and Stefani found a baggie containing cocaine beneath the cushion where Quiroga had been sitting. (Quiroga, supra, 16 Cal.App.4th at pp. 964-965.)
Quiroga was arrested for the possession of cocaine and transported to the police station. During booking he refused to provide his name, but was eventually recognized by another officer and formally booked. (Quiroga, supra, 16 Cal.App.4th at p. 965.) A jury convicted Quiroga of possession of cocaine and obstructing an officer in the performance of his duties (§ 148). (Quiroga, at p. 964.)
On appeal, regarding Quiroga’s conduct inside the apartment with respect to the section 148 violation, the court stated: “We find nothing in [Quiroga’s] conduct before his arrest that might justify a charge of violating . . . section 148. It is true that he complied slowly with Officer Stefani’s orders, but it surely cannot be supposed that . . . section 148 criminalizes a person’s failure to respond with alacrity to police orders. Moreover, [Quiroga] possessed the right under the First Amendment to dispute Officer Stefani’s actions. ‘[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.’ [Citation.] Indeed, ‘[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.’ [Citation.] While the police may resent having abusive language ‘directed at them, they may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment.’” (Quiroga, supra, 16 Cal.App.4th at p. 966.)
Here, in concluding the evidence is insufficient to support the section 148 violation, the minor analogizes her yelling obscenities at the officers and her slowness in responding to the officers’ requests to be handcuffed to the verbal challenges and lack of alacrity by Quiroga, neither of which constituted a violation of section 148. The analogy does not hold.
The minor’s “verbal challenges” stated more than a question of the officers’ legal rights to be in the apartment. Specifically, after the minor yelled, “What the fuck are you guys doing here?” and “Who the fuck are you?” Detective Patton informed the minor that they were serving a search warrant for narcotics and they needed to detain everybody who was inside the apartment. The minor responded, “Fuck you” and “You ain’t doing shit to me.” Detective Patton then informed the minor that when she finished changing the diaper, she was going to be handcuffed. The minor replied, “Fuck you. You’re not putting handcuffs on me. I’m leaving as soon as I’m done changing my baby’s diaper.” After the diaper changing was completed, the officers repeatedly told the minor to let go of the baby and attempted to take the child from her so they could handcuff her, but she would not comply, thereby making it impossible for either or both Detective Patton and Detective Schrum to handcuff her.
The detention was clearly proper. “In Michigan v. Summers [(1981) 452 U.S. 692, 705 [69 L.Ed.2d 340, 351]], the United States Supreme Court held that a warrant to search for contraband founded on probable cause implicitly carries with it the authority to detain the occupants of the premises while a proper search is conducted.” (People v. Ingram (1993) 16 Cal.App.4th 1745, 1751.)
After observing Detectives Patton and Schrum attempting to get the minor to release the baby and to stand and be handcuffed, Detective Schindler, fearing that the minor was hurting the baby, stepped in and slapped the minor on the face to distract her. The distraction worked and the minor released the baby.
Obviously the minor’s actions herein were far more than verbal challenges to the officers’ rights to be where they were and a slowness in complying with their orders. In fact, the minor’s statements were to the effect that she was not going to be detained (“I’m leaving as soon as I’m done”) and she was not going to be handcuffed (“You ain’t doing shit to me”). Nor was there any compliance on her part, let alone a mere “lack of alacrity” in complying. The minor did not voluntarily give up the child so that she could be handcuffed and detained. Instead, the child had to be forcefully removed from her.
The minor’s conduct is obviously distinguishable from that of Quiroga and clearly supports the juvenile court’s finding that the minor obstructed or delayed Detective Schrum in carrying out her duties during the serving of the search warrant. Consequently, the court’s finding was appropriate.
As to defendant’s claim that the officers were acting outside the scope of their duties by use of excessive force in handcuffing her, we reject the claim.
“Before a person can be convicted of [a violation of section 148(a)(1),] there must be proof beyond a reasonable doubt that the officer was acting lawfully at the time the offense against him [or her] was committed. (In re Manuel G. (1997) 16 Cal.4th 805, 815.)” (In re Joseph F. (2000) 85 Cal.App.4th 975, 982.) An officer is not acting lawfully if he or she uses excessive force in the performance of their duties. (People v. Curtis (1969) 70 Cal.2d 347, 354-355, 357.) Whether an officer’s action constitutes excessive force turns on the objective reasonableness of the action in light of the facts and circumstances confronting him or her. (In re Joseph F., supra, 85 Cal.App.4th at p. 989.)
In support of her claim of excessive force, the minor argues: “[I]t was unreasonable for the police to place [the minor’s] right arm in a rear wrist lock while she was holding her baby with her left. [The minor] complied with Detective Patton’s original order to remain seated and not to move. Even when verbally questioning the officers, [the minor] remained seated on the floor. None of the officers testified that [the minor] made any movements toward them whatsoever, and despite her verbal expressions, there was no reason to handcuff her.”
The record does not support the minor’s argument. Detective Patton, whose testimony was impliedly credited by the court, testified that before any of the officers ever touched the minor, and in response to her question “Who the fuck are you?” he explained to her that they were serving a search warrant for narcotics and that they needed to detain everyone, which they were legally entitled to do. (People v. Ingram, supra, 16 Cal.App.4th at p. 1751). In return, the minor stated, “You ain’t doing shit to me,” meaning she had no intention of being detained. Detective Patton then informed the minor that when she was finished changing her son, she was going to be handcuffed. The minor responded, “Fuck you. You’re not putting handcuffs on me. I’m leaving as soon as I’m done changing my baby’s diaper,” thereby affirming her intention not to be detained. Detectives Patton and Schrum waited until the minor had changed her baby before attempting to take the baby from her and place handcuffs on her to assure that she remained detained. Given the minor’s physical resistance to being handcuffed and the detectives’ rights to do so, there simply was no excessive use of force.
To the extent the minor complains that Detective Schindler’s slap on the side of her face was excessive force, that complaint too is rejected. Detective Schindler testified that “for at least a minute or two” he watched Detectives Patton and Schrum attempting to get the minor to release the baby. Worried about the baby being injured, Schindler slapped the minor on the side of her face, “not very hard,” but simply hard enough to distract her so he could take possession of the child. In light of the circumstances facing Detective Schindler, and given the minimal amount of force he used, we see nothing excessive in his slapping the minor on the side of the face to get the child.
II
The minor contends the juvenile court and the probation department violated the notice provisions of the ICWA. Not so. The ICWA does not apply to proceedings “based upon an act which, if committed by an adult, would be deemed a crime.” (In re Enrique O. (2006) 137 Cal.App.4th 728, 732-734.) Since the minor’s violation of section 148(a)(1) would be a crime if committed by an adult, the ICWA is not applicable.
DISPOSITION
The order of the juvenile court is affirmed.
We concur: SCOTLAND , P. J., ROBIE , J.