Opinion
A149817
07-20-2017
In re E.N., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. E.N., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J16-00784)
E.N. appeals from a juvenile court order declaring him to be a ward of the court and placing him on probation upon a finding that he committed the misdemeanor offense of resisting, delaying, or obstructing a peace officer. He argues that there was insufficient evidence to sustain the finding. We affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
On the afternoon of August 11, 2016, Officer Patrick Rude of the Pinole Police Department was dispatched to a Chuck E. Cheese parking lot based on a report "that somebody was punching parked cars." The report's subject was described as a "Hispanic male" wearing "a red hat and dark clothing." Officer Rude was wearing his uniform and driving a marked patrol car.
As Officer Rude approached the location, he "saw a subject who fit the description," later identified as 17-year-old E.N., walking down a sidewalk between the Chuck E. Cheese parking lot and another business. Officer Rude did not "want to just walk up and make consensual contact" with E.N. based on safety concerns. The officer thought it was "weird that somebody would be punching cars," which was "kind of violent," and he thought E.N. might have a mental-health issue. Officer Rude drove toward E.N., who was approaching from the other direction, and they "made eye contact" and stared at each other for "a couple of seconds." The officer noticed that E.N. "was kind of swaying" and "closing and opening his hand from open to fist," further indicating to the officer that E.N. might become violent.
Officer Rude turned around, switched on his patrol car's emergency lights, and parked near E.N. The officer exited the car and "yelled multiple times, hey, I need to talk to you. Come over here and talk to me." E.N. "stopped, turned around, and looked at" Officer Rude, and the officer again said, "[H]ey, sit down. I need to talk to you now." E.N. "just looked at [Officer Rude] and then turned around and walked away." Not wanting to approach E.N. directly because the minor was still "opening and closing his hands," Officer Rude got back in his car, followed E.N. a short distance, and exited the car again.
Officer Rude "yelled at [E.N.] again to stop and sit down." Officer Rude testified that at this point he had his hand on his firearm because E.N. "was wearing baggy clothing. His demeanor, the way I had to contact him twice, he wasn't listening to what I was saying. If he pulled out a weapon, I needed to have something to stop him." E.N. stopped walking, turned around, and said, "[W]hy are you fuckin' with me?" Officer Rude responded, "I'll tell you here in a moment. Have a seat." E.N. began moving toward the curb to sit on it, but Officer Rude "redirected him for safety reasons because that's a busy street to have a seat on the sidewalk." E.N. did not sit where Officer Rude indicated but instead sat on "a metal water pipe" between the sidewalk and the curb, at which point the officer removed his hand from his firearm.
Officer Rude explained that he was contacting E.N. because E.N. fit the description of someone who was reportedly punching cars in the parking lot. Officer Rude then asked E.N., "[I]s everything okay? What's going on? You seem mad." E.N. responded, "I'm mad at the world." Officer Rude asked E.N. to display his hands. E.N. showed both sides of his hands to the officer, who "didn't see anything unusual" about them.
"[R]ight after" displaying his hands, E.N. "stood straight up . . . abruptly." Officer Rude "told [E.N.] to sit down immediately." The officer testified that "if someone is sitting and abruptly gets up, that's a sign . . . . One, they are not listening, and two[,] . . . they are either going to flee or fight." E.N., who still seemed angry, responded, "I don't want to sit down." Officer Rude again told E.N. to sit down, and E.N. "started taking a step back and started to repeat what [the officer] was saying." Officer Rude testified that the step back brought E.N. into a "[b]laded stance," a type of "fighting stance" which the officer demonstrated by standing with one foot back and his arms at his sides. E.N. did not raise his hands, but he was now facing Officer Rude from about two feet away.
Officer Rude was concerned that E.N. intended to fight him based on "[t]he totality of the circumstances, the call, [E.N.'s] demeanor, his opening and closing his hands, his not obeying multiple [requests] to sit down, and then standing up and taking that stance." The officer testified that he therefore "immediately" stepped forward, "placed [his] right leg behind [E.N.'s] legs[,] and pushed [E.N.] down with [his] right hand," causing E.N. to fall and land face down on the ground. Officer Rude testified that this maneuver, which he characterized as a "sweep," was not one he had been trained to perform but was instead "just a quick reaction." The officer also fell down, and he landed on top of E.N.
After E.N. was on the ground, Officer Rude told him "to place his hands behind his back," but E.N., who "was cursing and yelling," did not comply. Within seconds, two other police officers arrived, one of whom helped Officer Rude and eventually was able to handcuff E.N. E.N. did not appear injured to Officer Rude, and photographs of E.N. taken soon after he was arrested revealed no obvious injuries.
Officer Rude was the only witness to testify at the jurisdictional hearing, and his version of his interaction with E.N. was not contradicted.
The Contra Costa County District Attorney filed a petition under Welfare and Institutions Code section 602, subdivision (a) seeking to have E.N. declared a ward of the court. The petition alleged one misdemeanor count of resisting an executive officer and one misdemeanor count of resisting, delaying, or obstructing a peace officer. After granting the People's motion to dismiss the first count of resisting an executive officer, the juvenile court sustained the allegation that E.N. had resisted, delayed, or obstructed a peace officer. At the dispositional hearing, the court declared E.N. a ward of the court and placed him on probation.
The allegations were made under Penal Code sections 69 and 148, subdivision (a)(1), respectively. All further statutory references are to the Penal Code.
II.
DISCUSSION
A. The Standard of Review.
We review the juvenile court's finding that E.N. committed an offense under section 148, subdivision (a)(1) (section 148(a)(1)) for substantial evidence, which requires us to " ' "review[] the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find [the elements of the crime] beyond a reasonable doubt." ' " (In re George T. (2004) 33 Cal.4th 620, 630-631.) " ' " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' " (Id. at p. 631.)
B. There Was Substantial Evidence that E.N. Delayed Officer Rude in the Performance of a Lawful Detention.
Section 148(a)(1) imposes liability on "[e]very 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." An offense under section 148(a)(1) has three elements: " ' "(1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the [lawful] 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." ' " (Yount v. City of Sacramento (2008) 43 Cal.4th 885, 894-895.)
The phrase "when no other punishment is prescribed" refers to punishment under the other subdivisions of section 148, none of which apply here because they all impose liability for acts involved in taking a peace officer's weapon. (People v. Christopher (2006) 137 Cal.App.4th 418, 434-435 & fn. 12.)
"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, 1329-1330.) The statute does not, however, criminalize mere delay in responding to an officer's orders. (In re Chase C. (2015) 243 Cal.App.4th 107, 117 (Chase C.); People v. Quiroga (1993) 16 Cal.App.4th 961, 966 (Quiroga).)
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." (Quiroga, supra, 16 Cal.App.4th at p. 968.) But even though verbal conduct may satisfy the first element of section 148(a)(1), "the statute must be applied with great caution to speech. Fighting words or disorderly conduct may lie outside the protection of the First Amendment [citation], . . . [b]ut the areas of unprotected speech are extremely narrow." (Quiroga, at p. 968.) In particular, " '[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.' " (Quiroga, at p. 966.)
E.N. argues that the first and second elements necessary to prove a violation of section 148(a)(1)—that he willfully resisted, delayed, or obstructed Officer Rude while the officer was engaged in his lawful duties—were not proven. In addressing E.N.'s claim, we distinguish between two distinct phases of his encounter with Officer Rude: the detention to investigate the report of cars being punched, which E.N. concedes was lawful, and the arrest after E.N. assumed a stance the officer perceived as threatening. (See Chase C., supra, 243 Cal.App.4th at p. 114 [different stages of encounter with police raised "distinct constitutional and statutory issues"]; Quiroga, supra, 16 Cal.App.4th at p. 966 [same].)
E.N. argues, and the Attorney General apparently concedes, that Officer Rude's handcuffing of E.N. transformed the detention into an arrest. (See generally People v. Celis (2004) 33 Cal.4th 667, 674-675 [discussing factors that " 'distinguish permissible investigative detentions from impermissible de facto arrests' "].)
1. E.N.'s assumption of a fighting stance constituted substantial evidence that E.N. delayed Officer Rude's performance of his duties.
E.N. first contends that there was insufficient evidence of section 148(a)(1)'s first element—that he resisted, delayed, or obstructed Officer Rude—because he was merely slow to respond to the officer's orders and engaged in protected speech when questioning the officer's authority. We are not persuaded because we accept, as we must, Officer Rude's testimony that E.N. assumed a fighting stance after being ordered to sit down.
The Attorney General contends that the first element was established because "[n]ot only did [E.N.] verbally defy the officer's orders, [E.N.] engaged in physical acts of resistance by refusing to sit down and instead taking up a fighting stance two feet from the officer." We agree. When a detention is lawful, a suspect has a "duty to permit himself [or herself] to be detained" so long as the suspect is "aware of the officer's desire" to detain. (In re Gregory S. (1980) 112 Cal.App.3d 764, 778.) In Gregory S., a sheriff's deputy notified the minor that he was investigating a complaint, the minor said he did not need to talk to the deputy and began to walk away, the deputy grabbed the minor's arm, and the minor "struggled and attempted to pull away." (Id. at pp. 771.) This division concluded that there was sufficient evidence to support section 148(a)(1)'s first element because the minor was aware of the deputy's desire to detain him but made a "forceful attempt to leave," thereby delaying the deputy's performance of his duty. (Gregory S., at p. 778.) Similarly, here there was substantial evidence that E.N. was aware that Officer Rude wanted to detain him, based on the officer's requests that he sit down after he stood up from the pipe. There was also substantial evidence that E.N. did not submit to the detention and delayed Officer Rude's performance of his duty by taking a fighting stance, requiring the officer to respond.
Perhaps recognizing that the legality of the arrest depends in part on whether E.N. engaged in conduct establishing probable cause for a violation of section 69 or 148, the Attorney General does not rely on E.N.'s resistance to being handcuffed in arguing there was sufficient evidence that E.N. willfully resisted, delayed, or obstructed Officer Rude. --------
E.N. argues that "[t]he evidence does not support Officer Rude's sinister interpretation of [his] posture as a fighting stance." Although we share some of E.N.'s skepticism about whether his taking a step back was threatening, particularly given that he did not raise his fists or arms, we cannot disregard Officer Rude's characterization of E.N.'s posture when viewing the record in the light most favorable to the People. This is particularly true because the juvenile court, unlike this court, had the benefit of seeing the officer demonstrate the stance, which the juvenile court agreed was "a bladed stance."
Because there was substantial evidence that E.N. took physical action suggesting he was prepared to fight Officer Rude, this case is distinguishable from Quiroga and Chase C., the primary decisions on which E.N. relies. In Quiroga, this division determined that there was insufficient evidence to satisfy the first element of section 148(a)(1) based on the defendant's conduct before his arrest, although his post-arrest behavior did supply such evidence. (Quiroga, supra, 16 Cal.App.4th at pp. 966, 972.) Before being arrested, the defendant questioned a police officer's authority to enter an apartment before obeying an order to sit down on a couch; nervously fumbled in his pockets and between couch cushions; was slow to cooperate with an order to put his hands in his lap; and refused to stand up several times before finally doing so. (Id. at p. 964.) The police officer arrested the defendant after searching the couch and finding a bag of cocaine. (Id. at pp. 964-965.) In determining that there was no evidence of the first element based on the defendant's conduct leading up to the arrest, Quiroga relied on the principle that section 148 does not criminalize slowness to respond to an officer's orders or verbal criticism. (Quiroga, at p. 966.) E.N.'s assumption of a fighting stance, however, went beyond mere uncooperativeness and verbal questioning of Officer Rude's authority.
Chase C.'s holding was also premised on the principle that "the fact that someone verbally challenges a police officer's authority or is slow to comply with orders does not mean that he or she has delayed an investigation." (Chase C., supra, 243 Cal.App.4th at p. 117.) In that case, a sheriff's deputy approached a large group of teenagers, two of whom matched the description of suspects he was trying to find. (Id. at p. 110.) After one of the suspects refused to sit down and asked why he was being detained, the minor advised him not to cooperate with the deputy. (Ibid.) After the suspect continued to refuse to obey, he was handcuffed, at which point another deputy who had arrived handcuffed the nonsuspect teenagers for safety reasons. (Id. at p. 111.) The minor told the other teenagers not to say anything to the deputies and continued questioning the deputies' authority. (Id. at pp. 111-112.) Finally, when the minor himself was handcuffed, he questioned why he was being arrested, refused to give his personal information, and again told the other teenagers not to cooperate. (Id. at p. 112.) He "did not at any time, however, physically resist [the deputy arresting him], run away, or require any use of force." (Ibid.) Here, in contrast, by assuming a fighting stance, E.N. prompted Officer Rude to respond with physical force, which delayed the detention. These circumstances constituted sufficient evidence to satisfy section 148(a)(1)'s first element that E.N. resisted, delayed, or obstructed Officer Rude.
2. Even if E.N.'s arrest was unlawful, there was still substantial evidence that Officer Rude was engaged in the lawful performance of his duties at the time E.N. delayed him.
E.N. also claims that there was insufficient evidence that Officer Rude was engaged in the lawful performance of his duties because the arrest was illegal, as probable cause was lacking and the officer used excessive force to effect it. Given our conclusion that there was substantial evidence that E.N. delayed Officer Rude in the performance of the concededly lawful detention, however, the lawfulness of the arrest is irrelevant. Even if we were to conclude, for example, that Officer Rude used excessive force to effectuate the arrest after E.N. assumed a fighting stance, that would not alter the lawfulness of the detention the officer was performing at the time E.N. assumed a fighting stance. (See Yount v. City of Sacramento, supra, 43 Cal.4th at p. 899 [use of excessive force after initiating arrest does not " 'negate the lawfulness of the initial arrest attempt, or negate the unlawfulness of the criminal defendant's attempt to resist it' "].) Thus, although E.N. spends much of his briefing arguing that the arrest was unlawful, we need not address his claims in this regard because there was substantial evidence that E.N. delayed Officer Rude's performance of the lawful detention.
III.
DISPOSITION
The judgment is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Dondero, J.