Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. J34403
Reardon, J.
The juvenile court found that appellant Q.C. committed misdemeanor obstruction of a police officer and declared the minor to be a ward of the court. (Pen. Code, § 148, subd. (a)(1); Welf. & Inst. Code, § 602, subd. (a).) Q.C. was placed on probation. He appeals, contending that (1) there was insufficient evidence to support the finding that he obstructed a police officer; and (2) he was prejudiced by the juvenile court’s erroneous denial of his motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). We affirm the juvenile court’s wardship finding.
All statutory references are to the Penal Code unless otherwise indicated.
I. FACTS
A. Events Leading to Arrest
Appellant Q.C. was born in July 1990. In August 2005, the juvenile court declared the 15-year-old to be a ward of that court, after he committed misdemeanor vandalism. (See Welf. & Inst. Code, § 602, subd. (a).) He violated the conditions of his wardship by use of a controlled substance, but by November 2006, wardship was terminated in a successful manner.
On the night of June 29, 2007, Q.C.’s adult cousin J.C.-B. came to a Benicia apartment complex to pick up Q.C. According to testimony that he offered later, Officer Jake Heinemeyer was on patrol when he received a report of a fight at the apartment complex. When he arrived, Officer Heinemeyer observed 10 to 15 young men engaged in a verbal dispute in a parking lot. Officers Kevin Barreto and two other Benicia officers were also present in uniform. These officers tried to separate those that were arguing and cursing at each other. Other people stood by watching the argument.
No physical fight was underway, but the size of the crowd and the tone of the argument prompted police to disperse the crowd, so that the incident would not escalate into a physical dispute. J.C.-B. was standing with a group of men, talking on his cell phone. When Officer Barreto told those present to leave, some of them did so, but J.C.-B. did not. Officer Barreto specifically told J.C.-B. to leave, prompting J.C.-B. to reply, “Fuck you. I don’t have to go anywhere.” Officer Barreto repeated this admonition to disperse several times.
Cursing, J.C.-B. approached Officer Barreto. The two men stood face-to-face with J.C.-B.’s fists clenched by his sides. Officer Barreto grabbed his arm to put J.C.-B. in a control hold, having decided to arrest him for delaying and obstructing a police officer. Some of the people who had left returned. A crowd yelled that the officers should not arrest J.C.-B. J.C.-B. tried to push away from Officer Barreto and took a couple of swings at him that did not connect.
Sixteen-year-old Q.C. ran up to the two men, saying to Officer Barreto, “You can’t take him. That’s my cousin.” Q.C. stepped between Officer Barreto and his cousin, grabbed J.C.-B., and tried to pull his cousin away. Q.C. wrapped his arms around J.C.-B.’s waist. Officer Heinemeyer came forward to assist Officer Barreto, grabbing Q.C. All four of them fell to the ground and other officers came to assist. As J.C.-B. tried to stand, Officer Heinemeyer grabbed his arm. J.C.-B. fell again. Officer Heinemeyer attempted to put J.C.-B.’s arm behind his back and ordered him to stop resisting.
Q.C. was on the ground, still hanging onto J.C.-B. around the waist. Officer Barreto put Q.C. in a headlock to control his upper body. Repeatedly, he told Q.C. to let go of his cousin, but he and J.C.-B. continued to hang onto each other. At some point, Benicia Police Sergeant Bob Oettinger sprayed J.C.-B. in the face with pepper spray. Officer Barreto jabbed or kicked Q.C.’s ribs a few times to get him to let go of J.C.-B., without success. Officer Craig Bloch twisted Q.C.’s legs in a painful manner, finally inducing him to release his hold on J.C.-B.
J.C.-B. was handcuffed and arrested for obstructing a police officer by failing to leave when asked to do so. (§ 148, subd. (a)(1).) Q.C. was arrested for obstructing Officer Barreto’s attempt to arrest J.C.-B. He was read his rights.
Q.C. gave a statement to police, telling them that J.C.-B. was there to give him a ride. He also told police that some people were trying to start a fight with some juveniles at the apartment complex. When he saw J.C.-B. arguing with police, he ran downstairs to tell his cousin to stop arguing. He stepped between J.C.-B. and the officer, pulling his cousin away. When J.C.-B. was grabbed and thrown to the ground, Q.C. held onto his cousin and tried to cover his cousin’s face to protect him from being pepper-sprayed. When he gave his statement, Q.C. did not complain of being pepper-sprayed himself and did not appear to have been sprayed. His knuckles were scraped. Q.C. was taken to juvenile hall.
B. Wardship Proceedings
In July 2007, a petition was filed alleging that Q.C.—then almost 17 years old—should again be declared a ward of the juvenile court. The petition alleged that he committed two misdemeanors—resisting arrest and battery on a police officer. Both allegations involved his contact with Officer Barreto. (§§ 148, subd. (a)(1), 243, subd. (b); see Welf. & Inst. Code, § 602, subd. (a).) Q.C. was not detained but was released to his mother’s custody.
Q.C. made a Pitchess motion, seeking to obtain evidence relevant to any use of excessive force exercised by any of the five officers present at the scene of the incident. He also reasoned that he may have been arrested because he was an African-American youth. The City of Benicia opposed the motion. In November 2007, the juvenile court denied the Pitchess motion without prejudice, finding that the supporting declaration was insufficient to establish a basis for review of the sought-after records.
A contested jurisdiction hearing was conducted. Officer Heinemeyer opined that the arrests of J.C.-B. and Q.C. were lawful because both had acted to prevent the police from performing their duty. He did not believe that freedom of speech played a role in the situation. Officer Barreto testified that it was not a crime for J.C.-B. to curse him. He did not arrest J.C.-B. for cursing at him, but for refusing to leave the area. The defense suggested that the arrest was unlawful because the incident occurred in an area where J.C.-B. had a right to be, citing the First Amendment freedom of association. Q.C. argued that maintaining order was not a proper basis for J.C.-B.’s arrest.
Officer Heinemeyer told the juvenile court that when Q.C. intervened between J.C.-B. and Officer Barreto, Q.C. used a hand to push the officer away. Officer Barreto testified that Q.C. did not attack him, but only held onto J.C.-B. After the People rested their case-in-chief, the juvenile court granted Q.C.’s motion to dismiss the battery allegation, finding Officer Barreto’s testimony more credible on the underlying facts.
Two eyewitnesses to the incident testified in Q.C.’s defense. One eyewitness testified that before any physical contact occurred, J.C.-B. told the police that he was at the apartment complex to get his cousin. She characterized the atmosphere created by the people who were arguing as confrontational. The witness testified that Q.C. was squirming when he was on the ground. It looked to her like he was struggling to get loose from the police.
The second eyewitness testified that there was no argument at the apartment complex on the night that police appeared. Officer Barreto approached J.C.-B. and told him to get off his cell phone. J.C.-B. told the officer to “get out of his face.” Officer Barreto was very angry. J.C.-B. did not block the police. Q.C. tried to get J.C.-B. to calm down, but the police tackled both of them when Q.C.’s back was turned. The eyewitness testified that the officers beat up Q.C. and J.C.-B. with billy clubs for no reason. Q.C. got kicked, too. Q.C. did not grasp J.C.-B. around the waist. Neither Q.C. nor J.C.-B. fought the police—the police were attacking them. The witness saw Q.C. get pepper-sprayed and he thought that J.C.-B. was, too.
Q.C. also testified in his own defense. He told the juvenile court that he had gone to the apartment complex on the day of the incident to attend a birthday party. He called his cousin J.C.-B. to come and pick him up. Some folks were threatening a fight before the police arrived. When the police asked him to leave, he told them that his ride was on the way. They told Q.C. to sit on the stairs and wait and to tell the police when his ride arrived. Q.C. did so until he saw his cousin arrive.
J.C.-B. was on his cell phone, standing on the sidewalk five or 10 feet away from Q.C. The police were in the parking lot. Q.C. overheard J.C.-B. explaining to Officer Barreto that he had come to pick up Q.C., but the officer said that he did not care. He told J.C.-B. to leave.
Q.C. could see that his cousin was trying to get to him. He told police that J.C.-B. had arrived, but they would not listen to him. He ran past Officer Barreto to J.C.-B. and told his cousin, “Be cool. Let’s just go.” When Q.C. and J.C.-B. turned to leave, the police jumped on them and slammed them to the ground, beating them up, kicking and punching Q.C. in his ribs. When Q.C. fell to the ground, he grabbed J.C.-B. and his arms were wrapped around his cousin’s waist. His hands were stuck there—he let go as soon as he was able. His hand was scraped and both he and J.C.-B. got pepper-sprayed. Someone bent his legs. He was arrested at the scene. Q.C. denied that he was trying to help J.C.-B. get away from the police.
On rebuttal, Officer Barreto testified that before the physical confrontation, no one told him that J.C.-B. was there to pick up Q.C. He only learned this fact after the incident had occurred. He denied that the officers assaulted Q.C. and J.C.-B. in the manner that the defense witnesses had described. He admitted that he struck Q.C. twice in the ribs, but testified that none of the officers had used a billy club that day.
Officer Barreto testified that J.C.-B. was pepper-sprayed, but Q.C. was not. J.C.-B.’s eyes were treated for pepper spray. Q.C. did not complain about any pepper spray in his eyes that night and Officer Barreto saw no evidence that he had any spray in his eyes. It was possible that when J.C.-B. was sprayed, Q.C. got a whiff of spray, too.
Officer Heinemeyer also testified on rebuttal that no officers tackled or beat up J.C.-B. or Q.C. as the defense witnesses claimed. No one used a baton or billy club on them. He knew that J.C.-B. had been pepper-sprayed, but testified that no one used pepper spray on Q.C. Q.C. did not complain of being pepper-sprayed, nor did he display any of the symptoms of someone who had been sprayed.
Q.C. claimed that he acted in defense of his cousin J.C.-B., contending that he could not be found to have obstructed an officer because his cousin was not lawfully arrested. The juvenile court found that Officer Barreto acted reasonably and lawfully when ordering people to clear the area, in order to keep the peace. It concluded that J.C.-B. did not follow this lawful order, and was properly detained and arrested. Thus, the juvenile court sustained the allegation that Q.C. had committed misdemeanor resisting arrest, based on evidence beyond a reasonable doubt. In June 2008, Q.C. was declared a ward of the juvenile court and the maximum period of confinement was set at one year. Q.C. was granted probation and returned to his mother’s home.
In June 2008, the juvenile court indicated that it would consider terminating probation after six months, instead of requiring him to complete the full one-year period. Although neither of the parties advised of any developments during the pendency of the appeal, on our own motion, we obtained evidence that Q.C.’s wardship was terminated unsuccessfully in December 2008. At oral argument, the parties agreed that this development does not render the appeal before us moot. We agree with this conclusion. When an appeal attacks only a restraint on a minor’s liberty, a subsequent termination of an order for supervision may make an appeal moot. (See In re Richard D. (1972) 23 Cal.App.3d 592, 594-595 [camp placement].) When, as here, the appeal is from the underlying finding of criminality, it is not made moot by a subsequent termination of juvenile court jurisdiction. (Id. at pp. 594-595 & fn. 5; see In re Dana J. (1972) 26 Cal.App.3d 768, 771 [probation].)
II. SUFFICIENCY OF EVIDENCE
A. First Amendment Claim
First, Q.C. contends that there was insufficient evidence to support the finding that he resisted arrest in violation of section 148. As such, he urges us to reverse the wardship based on that finding. Q.C. concedes that he interfered with Officer Barreto’s attempt to arrest J.C.-B., but he argues that his cousin was improperly arrested for verbally challenging the officer—that is, for engaging in constitutionally protected speech. Q.C. reasons that if his cousin’s arrest was unlawful, he cannot properly be found to have obstructed that arrest.
In the juvenile court, Q.C.’s First Amendment claim focused on freedom of association, not freedom of speech. Typically, the failure to raise a specific issue in the trial court forfeits the right to raise a claim of error on appeal. (See People v. Lilienthal (1978) 22 Cal.3d 891, 896 [adult criminal matter]; see also In re S.B. (2004) 32 Cal.4th 1287, 1293 [juvenile dependency].) Thus, it appears that the freedom of speech issue was not preserved in the juvenile court for consideration on appeal. Despite this, we choose to address the issue.
One cannot be found to have committed an offense against a peace officer engaged in the performance of his or her duties unless the officer was acting lawfully at the time that the offense was committed. (In re Manuel G. (1997) 16 Cal.4th 805, 815; People v. Gonzalez (1990) 51 Cal.3d 1179, 1217; see § 148, subd. (a)(1).) Thus, that the officer was engaged in the lawful performance of his or her duties becomes an element of the offense of obstructing a peace officer. (See In re Manuel G., supra, 16 Cal.4th at p. 815; People v. Gonzalez, supra, 51 Cal.3d at p. 1217.) Applying this reasoning, if Officer Barreto’s arrest of J.C.-B. was unlawful, then he was not engaged in the lawful performance of his duties and Q.C. cannot be found to have obstructed the arrest.
The key issue we must determine on appeal is whether J.C.-B. was illegally arrested. Normally, a challenge to the sufficiency of evidence to support a wardship finding is a factual issue subject to the substantial evidence rule. (See Jackson v. Virginia (1979) 443 U.S. 307, 319; In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371-1372.) Q.C. argues that this issue implicates the First Amendment, and thus, should trigger a higher standard of review—our independent review of the record on appeal.
When a plausible First Amendment defense is raised, we conduct an independent review of the record to ensure that a speaker’s right to free speech has not been infringed. (In re George T. (2004) 33 Cal.4th 620, 632-633.) The purpose of this independent review is to determine whether or not the content of a statement uttered was protected by the First Amendment. (See In re George T., supra, 33 Cal.4that p. 634 [criminal threat]; see also Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 510-511 [defamation].) However, the content of a statement is not at issue. The issue on appeal is whether the juvenile court properly found that Officer Barreto arrested J.C.-B. for a reason other than one implicating the First Amendment. By concluding that Officer Barreto could properly have arrested J.C.-B. for failing to follow the officer’s order to clear the area in order to keep the peace, the juvenile court impliedly rejected the implication that J.C.-B. was actually arrested for issuing a verbal challenge to the officer. As the issue on appeal is not related to the content of J.C.-B.’s exercise of his right to free speech, but whether his arrest was properly justified on another basis, the question before us is not intertwined with the First Amendment such that it triggers the independent review standard of review that Q.C. proposes. (See, e.g., People v. Lindberg (2008) 45 Cal.4th 1, 36-37.)
Assuming arguendo that we should conduct the independent review that Q.C. would have us make, if we were to apply that standard of review, we would uphold the juvenile court finding that Q.C. obstructed a peace officer in the lawful performance of his or her duties. The juvenile court impliedly found credible the officer’s testimony that he arrested J.C.-B. for failing to disperse—a reason unrelated to any statement that J.C.-B. made to the officer. Even under the more deferential standard of review, a juvenile court’s assessment of the credibility of witnesses is not subject to independent review. (See In re George T., supra, 33 Cal.4th at p. 634.) (See pt. II.B., post.)
B. Actual Basis of Arrest
The normal standard for reviewing the sufficiency of evidence applies in this matter. In these circumstances, we must view the evidence in the light most favorable to the juvenile court’s finding. We must determine whether a rational trier of fact could have found the essential elements of the allegations to be true beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at p. 319; In re Ryan N., supra, 92 Cal.App.4th at pp. 1371-1372.) We have no power to decide credibility or to reweigh conflicts in evidence. The juvenile court is the sole judge of the credibility of witnesses in a juvenile wardship proceeding. (In re Ryan N., supra, 92 Cal.App.4th at p. 1373.) Even if we believe that the evidence might be reasonably reconciled with a different conclusion, if substantial evidence supports the juvenile court’s view, we may not redecide it. (See People v. Towler (1982) 31 Cal.3d 105, 118.)
In this matter, the juvenile court stated that the officers had reasonable grounds to order the assembled crowd—including J.C.-B.—to disperse in order to keep the peace. Q.C.’s sufficiency of evidence claim is grounded in his assertion that this was not the true basis of J.C.-B.’s arrest—that, in fact, his cousin was arrested for making a verbal challenge to the Officer Barreto. By its finding that J.C.-B.’s failure to follow police orders to clear the area triggered his arrest, the juvenile court impliedly rejected the suggestion that Q.C.’s cousin was arrested for verbally challenging the officer. Officer Barreto’s testimony that he did not arrest J.C.-B. for cursing him, but because he failed to disperse when ordered to do so, provides substantial evidence supporting the juvenile court’s implied rejection of any alternative basis of J.C.-B.’s arrest.
The juvenile court had already determined that Officer Barreto was a credible witness when it made an earlier ruling favorable to Q.C. When it considered Q.C.’s motion to dismiss the battery allegation, it acknowledged that it had heard conflicting evidence about whether Q.C. committed an unlawful touching of Officer Barreto. Despite this conflicting evidence, it found Officer Barreto’s testimony that Q.C. did not strike him to be more credible.
C. Lawful Basis of Arrest
This brings us to the remaining substantial evidence issue—whether Officer Barreto acted lawfully when ordering J.C.-B. to leave the area. J.C.-B. was arrested for obstructing a police officer because he failed to leave when ordered to do so. (§ 148, subd. (a)(1).) The juvenile court found that the police were reasonable in their assessment that they needed to take some action to keep the peace. It also concluded that ordering the crowd to disperse was a reasonable and lawful action to take under the circumstances.
We must determine whether sufficient evidence supports the juvenile court’s conclusion that it was reasonable for police to disperse the crowd. The record on appeal supports the conclusion that although the dispute between crowds of juveniles and adults—perhaps, as many as 30 people in all—had not degenerated into a physical fight, it was a loud and rowdy verbal dispute that raised the specter that a fight might well occur. The evidence shows that when police arrived, the size of the crowd and the tone of the dispute prompted them to disperse the crowd to avoid further incident. When a group assembles for the purpose of disturbing the peace and does not disperse when ordered to do so, the failure to disperse constitutes a misdemeanor. (§ 416, subd. (a); see In re Wagner (1981) 119 Cal.App.3d 90, 103.) The juvenile court could conclude from the evidence before it that members of the crowd were tending to incite others to violence—a physical fight. As such, we find that the juvenile court had substantial evidence to support its conclusion that the situation warranted police action to disperse the crowd.
In such circumstances, the police may—indeed, must—disperse such an unlawful assembly. (§ 726; Chambers v. Municipal Court (1977) 65 Cal.App.3d 904, 909, 911.) The record on appeal offers substantial evidence that J.C.-B. not only failed to follow repeated instructions to disperse, but approached Officer Barreto in a confrontational manner after refusing to do so. J.C.-B.’s conduct constituted obstruction of Officer Barreto in the lawful exercise of his duties as a peace officer. (See § 148, subd. (a)(1).) Even a defiant, but nonviolent refusal to cooperate can constitute obstruction of a peace officer within the meaning of this provision. (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329-1330.) As such, Officer Barreto acted lawfully when he ordered J.C.-B. to disperse and he acted lawfully when arresting J.C.-B. for failing to do so.
As J.C.-B.’s arrest was lawful, Q.C.’s defense that he acted to prevent an unlawful arrest necessarily fails. (See In re Manuel G., supra, 16 Cal.4th at p. 815; People v. Gonzalez, supra, 51 Cal.3d at p. 1217.) Thus, there is substantial evidence to support the juvenile court’s finding that Q.C. obstructed a peace officer. (See § 148, subd. (a)(1).)
III. PITCHESS MOTION
A. Juvenile Court Ruling
Q.C. also contends that the juvenile court erred by denying his Pitchess motion. The Pitchess motion sought records of four Benicia officers—Officer Barreto, Sergeant Oettinger and two others—relating to prior instances of the use of excessive force. The supporting declaration challenged one or more of the officers for using pepper spray on J.C.-B. and subjecting Q.C. to a headlock, strikes to the ribs and a leg twist. It asserted that records about the use of excessive force would be relevant to Q.C.’s defense—self-defense in the face of excessive force.
At the hearing on the motion, Q.C. argued that his own arrest was improper because he acted in defense of his cousin, who—he claimed—was unlawfully arrested for refusing to leave the scene of the incident. Thus, he raised a different defense—defense of others—from the self-defense claim that was cited in the declaration filed in support of the motion. The juvenile court found that the declaration in support of the Pitchess motion did not lay out a defense of others defense. Even if the juvenile court inferred this defense from the supporting documents, the declaration did not explain how the claimed use of excessive force was relevant to that defense. It denied the Pitchess motion without prejudice, on the ground that the supporting declaration was insufficient to support the motion.
B. No Abuse of Discretion
On appeal, we review a trial court’s ruling on a Pitchess motion for an abuse of discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039; People v. Hughes (2002) 27 Cal.4th 287, 330; People v. Mooc (2001) 26 Cal.4th 1216, 1228.) To establish good cause in support of a Pitchess motion, the defense must provide affidavits setting forth inter alia the materiality of the sought-after records to the subject of the litigation. (Evid. Code, § 1043, subd. (b)(3).) The California Supreme Court has interpreted this provision to require that defense counsel’s declaration set out the defense to the pending charge in a manner that shows how the discovery sought may lead to relevant evidence or may itself be admissible direct or impeachment evidence supporting that proposed defense. This requirement ensures that only information that is potentially relevant to the defense are subject to disclosure. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1024.) The affidavit must also describe a factual scenario supporting the claimed officer misconduct. (Ibid.)
We find that the declarations were deficient in two ways. First, they did not specify a defense of others defense, citing only self-defense as a basis for the claimed right to obtain evidence of the use of excessive force. (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1024.) Second, even if we were to overcome this lack by inferring—as the juvenile court did—that Q.C. acted in defense of his cousin, the declarations did not set forth facts explaining how the officers’ use of excessive force was relevant to the defense of others defense. To support the Pitchess motion, the declarations had to specify how the asserted facts were relevant to the claimed defense of others. These facts necessarily arose before Q.C. acted to prevent J.C.-B.’s arrest. However, the facts supporting the claim that the Benicia officers used excessive force arose only after Q.C. intervened with Officer Barreto and J.C.-B. The declarations do not explain how the later use of excessive force had any bearing at all on a defense of others that had to have arisen before any acts of excessive force occurred. (See Evid. Code, §§ 210, 350.) As the claimed use of excessive force was irrelevant to the defense of others, the declarations failed to show how the discovery sought could lead to relevant evidence supporting Q.C. in that defense. (See, e.g., Warrick v. Superior Court, supra, 35 Cal.4th at p. 1024.)
Once the juvenile court brought this lack of relevancy to the attention of defense counsel, it provided counsel with an opportunity to renew the Pitchess motion with supporting declarations setting out the relevancy of the defense and the use of excessive force. There is no evidence in the record on appeal that Q.C.’s counsel acted on this invitation. The failure to provide the relevancy information sought by the juvenile court could be interpreted as an abandonment of the motion, forfeiting the right to raise that issue on appeal. (See People v. Vera (2004) 122 Cal.App.4th 970, 981-982 [motion pursuant to People v. Marsden (1970) 2 Cal.3d 118]; People v. Lovings (2004) 118 Cal.App.4th 1305, 1312 [same].)
Q.C. also claims that his declaration in support of his Pitchess motion was sufficient when defense counsel asserted his belief that the minor may have been arrested because he was an African-American youth. Counsel claimed that the Benicia officers engaged in racial bias. However, the declaration alleged no specific facts relevant to racial animus, nor any facts from which any racial bias could be inferred. Such facts are required if good cause for a Pitchess motion is to be made. (See, e.g., Warrick v. Superior Court, supra, 35 Cal.4th at p. 1024.) The juvenile court properly denied this aspect of the Pitchess motion for lack of facts supporting this claim.
For all these reasons, we find that the juvenile court did not abuse its discretion in denying the Pitchess motion.
The juvenile court’s wardship finding is affirmed.
We concur: Ruvolo, P.J., Sepulveda, J.