Opinion
A152021
06-18-2018
THE PEOPLE, Plaintiff and Respondent, v. ANDREW NICHOLAS AZBILL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. CR943745-A)
Defendant Andrew Nicholas Azbill, convicted of several offenses, appeals challenging only his conviction for resisting a peace officer in violation of Penal Code section 148, subdivision (a)(1). We reject his contention that the evidence is insufficient to support that conviction and shall affirm the judgment.
All statutory references are to the Penal Code.
Background
Defendant and a codefendant were charged with numerous offenses and enhancements, found guilty by a jury of some and not guilty of others. Because defendant challenges only the sufficiency of the evidence to support his conviction for violating section 148, we limit the recitation of facts to those pertaining to that offense.
The trial court suspended imposition of defendant's sentence and placed defendant on probation for five years, conditioned on serving 725 days in county jail. --------
Defendant's appellate brief correctly summarizes the relevant facts established by the evidence at trial as follows: A search warrant was issued to search defendant's residence. Deputies Brian Rochester, Richard Kreutzer, and John Drewrey were part of the search team. The deputies went to defendant's residence on July 28, 2016 to execute the search warrant. The deputies received no response when they knocked on the front door of the residence. The deputies forced entry. Another individual was in the residence. Kreutzer was assigned to the perimeter of the residence. He saw defendant lying prone on the roof. Kreutzer identified himself as a deputy sheriff. Defendant did not acknowledge him. Drewrey yelled multiple times that it was the sheriff's department and told defendant to come down. Drewrey stood on a ladder or barrel to get to the top of the roof. He told defendant that he could see his feet. Defendant eventually cooperated with the order and came down from the roof. He was arrested. (Defendant's bedroom and bathroom were then searched and contraband found.)
Discussion
Section 148, subdivision (a)(1), in relevant part provides, "Every person who willfully resists, delays, or obstructs any public officer, peace officer . . . in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed" commits a misdemeanor. " 'The legal elements of a violation of section 148, subdivision (a) are as follows: (1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties. [Citations.]' [Citation.] The offense is a general intent crime, proscribing only the particular act (resist, delay, obstruct) without reference to an intent to do a further act or achieve a future consequence. [Citation.] [¶] Section 148 is most often applied to the physical acts of a defendant. [Citation.] For example, physical resistance, hiding, or running away from a police officer have been found to violate section 148." (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329.)
Defendant argues that his flight to the roof and delay in coming down from the roof does not establish the offense because "the deputies went to [defendant's] residence to execute a search warrant and not an arrest warrant," as in other cases, and "there was nothing about [defendant's] flight to the roof which prevented the deputies from executing the search warrant." However, the execution of a search warrant is as much a duty of the officers as execution of an arrest warrant, and defendant's failure to open the door to his residence when demanded to do so (which may reasonably be inferred from the evidence), and his flight to the roof, undoubtedly delayed the officers in performing the lawful search of his residence. As the court observed in People v. Allen (1980) 109 Cal.App.3d 981, 985-986, section 148 "uses the word 'delays' in addition to 'resists' and 'obstructs.' Since the officer had the legal right, indeed duty, [in that case to detain the defendant, in this case to conduct the search], [defendant], if he was aware of the officer's desire, had the concomitant duty to permit [execution of the search warrant]. [Citation.] Therefore, on the face of the statute it would appear that the physical activity that [defendant] engaged in, flight and concealment, which delayed the officer's performance of his official duty, violated the statute." The Allen opinion goes on to cite considerable authority supporting this conclusion. (109 Cal.App.3d at p. 986.)
The cases on which defendant relies do not support a contrary conclusion. In People v. Wetzel (1974) 11 Cal.3d 104, 106-107, the defendant, awoken in the middle of the night by police officers requesting to enter her apartment, refused to consent to their entry, telling them to " 'Get the hell out of here if you don't have a damn warrant.' " At no time "did defendant in any way physically confront the officers, limiting her objections to verbal abuse and protests, and standing passively in the doorway during the verbal exchange." (Id. at p. 107.) As the court summarized the situation, "Defendant's entire course of conduct was directed to refusal of consent, and nothing more." (Id. at p. 109.) Defendant "had the right to withhold consent to enter and, as long as entry was not sought on any other ground than with her consent she committed no impropriety and certainly not a violation of section 148." (Id. at p. 110.) In contrast, in the present case the officers were seeking to execute a lawful search warrant, so that defendant did not have the right to refuse or delay their entry, much less to flee and hide on the roof.
In People v. Quiroga (1993) 16 Cal.App.4th 961, the court held that the defendant did not violate section 148 by failing to comply more quickly with an officer's orders to sit on a couch and to put his hands on his lap, but did violate the statute when he refused to give his name after being arrested for felony drug possession. The court observed that "the statute must be applied with great caution to speech" but that "section 148 is not limited to nonverbal conduct involving flight or forcible interference with an officer's activities. No decision has interpreted the statute to apply only to physical acts, and the statutory language does not suggest such a limitation." (Id. at p. 968.) Nothing in the opinion supports the view that delaying the execution of a lawful search warrant by fleeing and failing to permit the officers to enter the premises does not violate the statute.
It is clear, and defendant does not question, that when he fled to the roof, the officers seeking entry to his residence were engaged in the performance of their duties and he knew or reasonably should have known they were peace officers so engaged. Since the evidence supports the finding that by refusing to open the door for the officers and instead fleeing to the roof he delayed the officers in the performance of their duties, he was properly convicted of violating section 148, subdivision (a)(1).
Disposition
The judgment is affirmed.
/s/_________
Pollak, Acting P.J. We concur: /s/_________
Siggins, J. /s/_________
Jenkins, J.