Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. J37649
RIVERA, J.
A.V. appeals after the juvenile court sustained an allegation that he had resisted, delayed, and obstructed a police officer in the discharge of his duties, adjudged him a ward of the court, and placed him on probation in the care of his parents. (Pen. Code, § 148, subd. (a)(1); Welf. & Inst. Code, § 602.) He contends the evidence does not support the finding that he violated section 148, and that the juvenile court erred in setting a maximum term of confinement. We reverse.
All undesignated statutory references are to the Penal Code.
I. BACKGROUND
Shortly after 1:00 in the morning on February 11, 2007, Officer Daniel Marshall of the Fairfield Police Department was sent to investigate a report of a disturbance. When he arrived at the complex, he saw three young men, including the minor, “being loud.” Marshall told them to sit down, and two of them complied. The minor did not do so, saying he did not want his pants to get dirty. He appeared to be under the influence of alcohol, with bloodshot eyes, an unsteady gait, and “slurred speech when he was yelling at [the officers].” He yelled at the officers, “ ‘Read me my rights, read me my rights.’ ” Marshall again told the minor to sit, but he did not comply. After an officer pointed a taser at him, he sat down. The minor continued to be “uncooperative,” and he was arrested for being under the influence of alcohol and delaying and obstructing police officers. The officers had intended to cite the minor and release him, but placed him under arrest after he refused to sign the citation. Marshall thought approximately 20 minutes passed between the time he arrived at the scene and the time he left with the minor after arresting him.
The minor testified that he had been at a party with two friends, where he drank some alcohol, and that they were outside waiting for a ride. Police officers arrived and asked them to sit down. The minor asked them for the reason, and they “repeatedly told [him] to sit down and they started pointing the lasers [sic] at [him].” The minor had raised his hands, and the officers repeatedly told him to sit down. The minor asked them to read him his rights because he wanted to know why he needed to sit. Officers made the minor sit, and he kept asking them to read him his rights. The officers threw him into the back of a police car. The minor did not sign the citation because he could not read it, and he did not want to sign something without knowing what it said.
The juvenile court sustained an allegation that the minor had resisted, delayed, or obstructed a police officer in the performance of his duties (§ 148, subd. (a)(1)) and did not sustain an allegation that he had been publicly intoxicated (§ 647, subd. (f)).
II. DISCUSSION
The minor contends there is insufficient evidence to support the juvenile court’s finding that he resisted, obstructed, or delayed a police officer in the discharge of his duties. We review this challenge for substantial evidence. (In re Andrew I. (1991) 230 Cal.App.3d 572, 577.) Thus, viewing the entire record in the light most favorable to the order, we determine whether it discloses substantial evidence upon which a reasonable trier of fact could find the minor guilty beyond a reasonable doubt. (Ibid.)
In a case with similar facts, Division One of the First Appellate District concluded that a defendant’s actions before his arrest did not amount to a violation of section 148. The defendant in People v. Quiroga (1993) 16 Cal.App.4th 961 (Quiroga) had been in an apartment when police officers arrived to investigate a noise complaint. An officer smelled marijuana in the room and asked for the marijuana cigarette. The defendant stood up from a couch and started to walk into the hallway. An officer ordered him to sit back down. The defendant was uncooperative and argued before complying, telling the officer that he needed a reason to be in the house, that he should get out of the house, and that he needed a search warrant. The officer turned his attention to another person in the apartment, while the defendant continued to tell him to leave the apartment. After the defendant reached into the couch, the officer ordered the defendant to put his hands in his lap. The defendant was “ ‘very uncooperative’ but ‘finally’ obeyed the order.” (Id. at p. 964.) The officer asked the defendant to stand up. He refused several times, then stood up as the officer pulled on his arm. (Ibid.) The officer found a bag containing cocaine in the couch, and arrested the defendant. (Id. at pp. 964-965.)
The Court of Appeal stated: “We find nothing in appellant’s conduct before his arrest that might justify a charge of violating Penal Code section 148. It is true that he complied slowly with Officer Stefani’s orders, but it surely cannot be supposed that Penal Code section 148 criminalizes a person’s failure to respond with alacrity to police orders. Moreover, appellant 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.’ (Houston v. Hill (1987) 482 U.S. 451, 461 . . . .) 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.’ (Id. at pp. 462-463 . . . .) 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.’ [Citation.]” (Quiroga, supra, 16 Cal.App.4th at p. 966.)
The court went on to conclude that the defendant’s action in refusing to disclose his identity at a booking interview after his arrest supported a conviction of violating section 148. (Quiroga, supra, 16 Cal.App.4th at p. 972.) That portion of the court’s analysis does not concern us here.
The facts in this case are virtually indistinguishable from those in Quiroga. Like the appellant in Quiroga, the minor did not initially comply with the officer’s order that he change his position, refusing to be seated until an officer pointed a taser at him. Like the appellant there, he argued with the officers and asserted what he took to be his rights. We agree with the court in Quiroga that section 148 does not “criminalize[] a person’s failure to respond with alacrity to police orders” and that the First Amendment protects the right to dispute an officer’s actions. (Quiroga, supra, 16 Cal.App.4th at p. 966.) The fact that the minor refused to sign the citation does not change our conclusion. The Attorney General has directed us to no authority for the proposition that such a refusal constitutes a violation of section 148.
None of the cases the Attorney General relies on persuade us otherwise. The defendant in In re Joe R. (1970) 12 Cal.App.3d 80, 83-84, disapproved on another ground in In re Robert G. (1982) 31 Cal.3d 437, 445, interrupted a police officer as he was talking with youths who were out after curfew, and persisted in talking and interrupting after the officer asked him not to do so, making it impossible for the officer to elicit the information he sought. The officer approached the defendant, who pushed him; the officer then took hold of the defendant’s arm; the defendant used profane language, broke away from the officer, and hit another officer who was trying to stop him before running away. In In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1328, 1330, officers had arrested a suspect on drug charges and were processing his car while the suspect waited in the back of a patrol car. The defendant approached the patrol car and spoke with the suspect, continuing to do so despite repeated orders that he move away, and requiring officers to interrupt their work processing the car to attend to the defendant. The defendant in People v. Green (1997) 51 Cal.App.4th 1433, 1436, 1438, went beyond the speech protected by the First Amendment when he tried to intimidate a suspected victim of child abuse into denying the commission of the offense. The defendant in People v. Christopher (2006) 137 Cal.App.4th 418, 423, 428, gave a false name to police officers who had taken him into custody. In each of these cases, the defendant engaged in conduct beyond merely responding slowly and challenging officers’ authority. There is no evidence here that the minor used physical force, impeded an investigation, or lied to the officers.
Thus, the evidence is insufficient to support a finding that the minor violated section 148. Accordingly, we need not decide whether the juvenile court erred in setting a maximum term of confinement.
III. DISPOSITION
The orders appealed from are reversed.
I concur: REARDON, J.
I concur in the judgment only: RUVOLO, P.J.