Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. SJ07008309
SIMONS, J.
N.M. appeals after the juvenile court sustained a petition alleging that N.M. forcibly resisted a police officer in the performance of his duties and committed battery on a police officer in the performance of his duties. Appellant challenges the sufficiency of the evidence, contending he was unlawfully arrested at the time of the alleged offenses. We affirm.
PROCEDURAL BACKGROUND
A December 2007 petition filed in Solano County Superior Court under Welfare and Institutions Code section 602, subdivision (a), alleged that appellant, born in December 1991 and already a ward of the court, forcibly resisted a police officer in the performance of his duties (Pen. Code, § 69) (count one) and committed battery on a police officer in the performance of his duties (§ 243, subd. (b)) (count two). In January 2008, the petition was amended to allege that appellant gave false information to a police officer (§ 148.9, subd. (a)) (count three). Following a contested hearing, the juvenile court sustained counts one and two, and dismissed count three.
All undesignated section references are to the Penal Code.
The matter was transferred to the Alameda County Superior Court, and that court continued appellant as a ward, ordered that he be released from juvenile hall to his mother on electronic monitoring at the probation officer’s discretion, and imposed various terms and conditions.
FACTUAL BACKGROUND
About 11:00 p.m. on December 29, 2007, Vallejo Police Officer Greenberg responded to an address on Clark Drive where another officer required assistance with a large party at the address and a crowd outside. The officer at the scene directed Greenberg to proceed up Clark Drive toward Elena Street because there was a report that someone in a group leaving the party had a gun. Greenberg had heard reports of possible shots fired from the area. Greenberg drove up Clark Drive and observed a group of seven or eight males. The officer stopped his car near the group, exited the car, and ordered the men at gunpoint to lie on the ground. All but appellant complied.
Greenberg testified appellant was in a “driveway walking back and forth, walking in circles. He wouldn’t get down on the ground.” Greenberg asked appellant to lie on the ground “[m]aybe seven to 10 times at least.” Greenberg could not see appellant’s hands, which were in his hoodie, and appellant would not show the officer his hands. Greenberg continued, “I didn’t know if he had any weapons, so I pulled my taser out and pointed my taser at him and told him I was going to shoot him with my taser if he didn’t get on the ground.”
Appellant complied after being threatened with the taser. Appellant was protesting, saying things like, “ ‘What are you doing this for? I didn’t do nothing.’ ” Greenberg handcuffed appellant and decided to place him in a patrol car. As they walked to the car, appellant was “twisting, trying to break” the officer’s grasp. Appellant disregarded Greenberg’s requests that he sit down in the car, and the officer pushed appellant in. Appellant sat down but his feet were still outside the car; he reared back and kicked Greenberg in the groin with both feet.
None of the other men detained by Greenberg were arrested. Greenberg testified that, if appellant had been cooperative, he would have been released as well.
Appellant testified he left the party on Clark Drive with three companions. As they walked uphill to the house of one of the companions, near two other males they did not know, three or four police cars pulled up. Several officers emerged and ordered the youths to the ground at gunpoint. Appellant and the others immediately complied. While on the ground, appellant asked Greenberg why they had been detained. The officer became “ ‘mad and aggressive,’ ” yanking on appellant and shoving his taser against appellant’s head. After searching and handcuffing appellant, Greenberg yanked appellant up from the ground. Greenberg pushed appellant into a police car; on the way, appellant did not try to get away but he did ask for the officer’s name and badge number. Once appellant was in the car, Greenberg “all of a sudden . . . just said ‘Why did you kick me?’ ” Appellant denied intentionally kicking the officer.
One of the other detainees, who is appellant’s cousin, testified that the police told the group to sit down on the curb and appellant did so. Another detainee, who did not know appellant, testified that the police told the group to lie down and appellant did so. Both testified they saw the police pushing appellant around. They did not see appellant resist the police.
DISCUSSION
Appellant contends the evidence was insufficient to support the juvenile court’s finding that he violated sections 69 and 243, subdivision (b), because he was not lawfully arrested at the time of the alleged offenses.
Section 69 provides: “Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment.” Section 69 can be violated in two separate ways. “The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty. [Citation.]” (In re Manuel G., supra, 16 Cal.4th at p. 814.) The second aspect of section 69 applies in this case, and the parties agree appellant violated section 69 by resisting Greenberg’s effort to arrest him only if the arrest was lawful. (Manuel G., at p. 815; People v. Wilkins (1993) 14 Cal.App.4th 761, 776.) The requirement that the arrest was lawful “flows from the premise that because an officer has no duty to take illegal action, he or she is not engaged in ‘duties,’ for purposes of an offense defined in such terms, if the officer’s conduct is unlawful.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1217.) “[T]he lawfulness of the victim’s conduct forms part of the corpus delicti of the offense.” (Ibid.)
The term “executive officer” as used in section 69 encompasses police officers. (In re Manuel G. (1997) 16 Cal.4th 805, 818.)
Section 243, subdivision (b), provides in relevant part: “When a battery is committed against the person of a peace officer . . . engaged in the performance of his or her duties . . . the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.” As is the case with section 69, the parties agree appellant violated section 243, subdivision (b), only if Greenberg was lawfully arresting appellant at the time appellant committed a battery by kicking him. (People v. Curtis (1969) 70 Cal.2d 347, 355-356, disapproved on another ground in Gonzalez, supra, 51 Cal.3d at p. 1222.)
Respondent contends Greenberg had probable cause to arrest appellant for resisting Greenberg’s attempt to detain him, a violation of section 148, subdivision (a)(1). (See People v. Celis (2004) 33 Cal.4th 667, 673 [“[w]hen the seizure of a person amounts to an arrest, it must be supported by an arrest warrant or by probable cause”].) “Probable cause exists when the facts known to the arresting officer would persuade someone of ‘reasonable caution’ that the person to be arrested has committed a crime. [Citation.] ‘[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts . . . .’ [Citation.] It is incapable of precise definition. [Citation.] ‘ “The substance of all the definitions of probable cause is a reasonable ground for belief of guilt,” ’ and that belief must be ‘particularized with respect to the person to be . . . seized.’ [Citation.]” (Ibid.)
For purposes of this decision, we assume Greenberg’s actions in handcuffing appellant and moving appellant to the police car constituted an arrest requiring probable cause. (See People v. Celis, supra, 33 Cal.4th at p. 674 [“[t]he distinction between a detention and an arrest ‘may in some instances create difficult line-drawing problems’ ”].)
Section 148, subdivision (a)(1), provides in relevant part: “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 or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.” The juvenile court’s findings in this case went beyond a conclusion that Greenberg had probable cause; the court actually found “beyond a reasonable doubt that the minor in this instance did resist the efforts of the officer to initially detain him.” That finding is supported by substantial evidence. (See In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371-1372.) Greenberg testified that when he directed the youths to lie on the ground, appellant did not comply. Instead, appellant walked around in circles and would not remove his hands from his hoodie. The officer told appellant to lie down “seven to 10 times” and appellant only complied when Greenberg threatened to shoot him with a taser.
The juvenile court reasonably could have found that, although appellant did not attempt to flee (cf. People v. Allen (1980) 109 Cal.App.3d 981, 985-986), appellant’s refusal to comply with Greenberg’s instructions delayed and obstructed the officer’s investigation into the report that one of the group had a gun. Clearly, appellant’s conduct increased the dangerousness of the encounter, particularly because he refused to show the officer his hands. Appellant does not contend Greenberg’s requests that he show his hands and lie on the ground were unreasonable in the circumstances. (See Celis, supra, 33 Cal.4th at pp. 675-676 [“[o]f significance too are the facts known to the officers in determining whether their actions went beyond those necessary to effectuate the purpose of the stop, that is, to quickly dispel or confirm police suspicions of criminal activity”].)
This case is distinguishable from People v. Quiroga (1993) 16 Cal.App.4th 961. There, the court held that a conviction under section 148 could not be supported by the fact that the defendant, discovered by the police smoking marijuana in an apartment, argued before complying with orders to sit on a couch, to place his hands on his lap, and ultimately to rise from the couch. (Id. at p. 964.) The court stated: “We find nothing in [the defendant]’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, [the defendant] possessed the right under the First Amendment to dispute Officer Stefani’s actions.” (Id. at p. 966.) This case does not involve a mere lack of alacrity. In Quiroga, the defendant eventually voluntarily complied with the police officer’s orders; appellant in this case only complied under threat of being shot with a taser. Moreover, there is no indication in Quiroga that the defendant’s conduct created an elevated risk of harm or delayed the overall investigation. In contrast, the record in this case supports an inference that appellant’s actions created a potentially hazardous delay.
The arrest of appellant was not unlawful. Appellant does not otherwise dispute the sufficiency of the evidence to support the juvenile court’s findings.
DISPOSITION
The juvenile court’s orders are affirmed.
We concur. JONES, P.J., STEVENS, J.
Retired Associate Justice of the Court of Appeal, First District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.