People v. Carpenter CA1/2

Filed 11/5/14 P. v. Carpenter CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A135814
v.
DEBRAY CARPENTER, (San Francisco County
Super. Ct. No. 216806)
Defendant and Appellant.
Debray Carpenter appeals from misdemeanor convictions of resisting or
obstructing an officer and assaulting an officer. He contends there was insufficient
evidence to support the former offense; the trial court inadequately instructed the jury on
how to determine whether the officers were lawfully performing their duties and on
appellant’s obligations to comply with what “may have been” an unlawful order; and the
trial court responded inadequately to a question from the jury. We affirm.
STATEMENT OF THE CASE
Appellant was charged by information filed on November 15, 2011, with felony
resisting a peace officer resulting in serious bodily injury (Pen. Code, § 148.10, subd.
(a));1 felony attempting to prevent an executive officer from performing his duties by
means of threats or violence (§ 69); and misdemeanor assaulting an officer (§ 241, subd.
(c)).
1
Further statutory references will be to the Penal Code unless otherwise specified.
1
Jury trial began on February 7, 2012. On the third day of deliberations, the jury
informed the court that it had found appellant not guilty of the felony charged in count 1
but guilty of the lesser included misdemeanor resisting or obstructing an officer (§ 148,
subd. (a)(1)), and guilty of the misdemeanor charged in count 3. The jury indicated it
was deadlocked on count 2, then after listening to portions of the transcript it requested,
hearing the court’s responses to questions it posed, and further deliberating, found
appellant guilty of the lesser included misdemeanor resisting or obstructing an officer
(§ 148, subd. (a)(1)) on this count.
On April 27, 2012, the court sentenced appellant to six months in county jail on
each of the three misdemeanor counts, with the sentences on counts 1 and 3 to be served
concurrently and the sentence on count 2 consecutively; suspended execution of this
sentence; and placed appellant on three years’ probation. The conditions of probation
included 60 days in county jail, with credit for 11 days of time served, to be served
through the Sheriff’s Work Alternative Program (SWAP) and/or electronic monitoring.
On June 15, the court suspended this condition pending appeal.
Appellant filed a timely notice of appeal on June 15, 2012.
STATEMENT OF FACTS
On October 18, 2011, San Francisco Police Officers Joshua Fry and John Norment
were on duty, assigned to bicycle patrol in a historically high-crime area of the Bayview
District. Their job was to be a uniformed police presence in the area, as a “deterrent,”
working with business groups and residents to make people feel safe. About 1:30 p.m. on
October 18, the officers were at Mendell Plaza, a triangular plaza at Third Street and
Palou Avenue. This area was the “fixed post” where the officers were stationed when
they were not mobile, from which they were supposed to maintain order in the area, assist
people needing directions, and get to know the shopkeepers and people in the
neighborhood. The plaza was a community gathering area where it was common to find
people hanging out. Just before arriving at the plaza, the officers had been a few blocks
north and they had ridden their bicycles south along Third Street to the plaza.
2
As the officers arrived, they saw a group of 20 to 40 people and a portable stereo
on a planter box. Officer Norment testified that he made eye contact with appellant, who
turned and began “shadowboxing a lamppost.” The officers parked their bicycles and
stood with their backs to the wall next to a MetroPCS store. They had not observed any
criminal conduct or public safety concerns and had not received any noise complaints.
When the officers got off their bicycles, appellant called them “faggot[s]” and told
them they belonged in the Castro. Officer Fry testified that appellant “[t]old me to go to
the Castro to suck my partner’s dick, to get out of the Bayveiw, that I wasn’t wanted
there, to go bother white people.” Officer Norment testified that appellant was “very
agitated,” walking back and forth “like kind of a boxer would in a ring before a fight”
with clenched fists and his chest “thrown out,” challenging the officers to fight and
saying things like “he would kick my ass.” The officers “just stood there” without
responding.
The volume of the music from the portable stereo was loud enough that Officer
Fry was having trouble hearing the microphone in his ear, his means of communication
with the police department. He unplugged the stereo, which was illegally plugged into a
city electrical box. He had seen the stereo several times in the past and asked people to
unplug it or turn it down but no one ever did anything about it, and no one claimed
ownership of it. Fry’s unplugging the stereo angered the people sitting nearby, and
people started shouting things like “go bother white people.” Norment testified that
appellant became “very, very incensed” and started coming closer to the officers, looking
like he wanted to fight them; when he came within five or six feet, Norment told him to
get back, but appellant did not respond. Both officers took out their cell phones to record
appellant, who was angered by this; both put the phones away without recording
anything. Norment took out his pepper spray but put it away without using it because a
crowd was gathering behind appellant and the spray would have hit others as well. When
he took it out, appellant said something to the effect of, “I needed pepper spray, I
couldn’t fight him like a man.”
3
Appellant continued to yell at the officers, held out his phone and moved closer to
Fry, appearing to record the officer; Fry testified he was “right in front of my face” at a
distance that felt like three or four inches away, although after seeing a video recording of
the incident Fry realized appellant was not that close. Fry testified that he told appellant
repeatedly to get away and give him space but appellant refused; Fry was afraid that
appellant would hit him, and the crowd was yelling and being hostile. Norment testified
that he told appellant to get back and appellant did, then came close again and when
Norment told him again to get back, a woman grabbed appellant and pushed him back.
Fry used his hand to move appellant’s hand away from him; appellant, angry, said, “don’t
touch me,” and continued putting his phone near the officer. Norment remembered
hearing appellant say, “The next time you touch me, there’s going to be problems.”
Additional officers arrived, responding to a request from Norment. As appellant
continued to put his phone in Fry’s face, Fry told him to put his hand behind his back
and, when appellant refused, placed his hand on appellant to handcuff him. Norment
estimated that immediately before Fry tried to arrest appellant, appellant’s phone was
between “12 inches and two feet” from Fry. Appellant “violently resisted,” moving his
body back and forth and holding his hands in fists at his chest. Fry and Norment tried to
pull appellant’s arms behind his back while another officer who had arrived told the
crowd to stand back. As appellant continued to resist and the officers tried to get him on
the ground to handcuff him, appellant “rear[ed] up” and then leaned forward; the forward
momentum caused the group to tumble forward and Norment’s head hit the wall of the
store. Norment testified that he felt himself lifted off the ground and flung, his head
hitting the gate or the wall. He was momentarily stunned and disoriented, then he, Fry
and another officer managed to get appellant handcuffed. Appellant never stopped
resisting the officers’ efforts to arrest him. As a result of the struggle, Fry sustained an
abrasion on his right arm and his left arm, and his neck and back were sore. He did not
miss work or require medical attention.
Fry testified that while appellant was holding his camera close to Fry’s face and
refusing to obey the officer’s commands to step away, as well during the struggle to
4
arrest appellant, Fry was not able to fulfill his duty to observe the plaza and keep it safe
because appellant was directly in front of him, Fry felt threatened and his attention was
on appellant rather than on his patrol duties. He felt he had no option other than to arrest
appellant because appellant kept “coming at [him]” despite being repeatedly told to step
back. The crowd was large and angry, and Fry was afraid that he or his partner might be
hurt. Fry did not use pepper spray in trying to arrest appellant because of the risk of
hitting someone else in the crowd. Fry testified that his position before the incident
unfolded—leaning against the wall with his hands in his jacket pockets, was intended to
be “relaxed and nonconfrontational,” communicating that the officers were not
threatening. He acknowledged that he could have walked a short distance away and still
have been able to patrol the area, but he did not do so because “it’s our job to be there so
that the people can wait for the bus and feel safe so that the kids can walk by.” The place
where the officers were standing was “our problem spot,” where the homeowner
association they worked with wanted them to stand.
Norment, similarly, testified that he was standing in a relaxed posture because he
was trying to “deflate” the situation and not seem antagonistic or belligerent. He was
nervous because he thought he and Fry were about to be attacked. Like Fry, Norment
testified that while appellant was yelling at the officers and holding his phone out toward
Fry’s face, he was not able to patrol the plaza because all his attention was on appellant.
Norment never did anything to get people to stop recording him and Fry and never told
anyone to put their cameras away. Norment testified that the officers were trained to
deescalate a situation through conversation, but were not allowed “to be bullied off a
street corner.”
Officer Thomas Ly and his partner arrived at Third Street and Palou Avenue about
1:45 p.m. and saw appellant in some sort of confrontation with Fry, yelling and
repeatedly thrusting an object Ly assumed to be a cell phone in front of Fry’s face as Fry
repeatedly told him to stop. Ly testified that appellant was holding the cell phone as if to
take a video but Ly did not think he intended to do so because of the way he kept
thrusting it forward. It appeared to Ly that appellant’s phone came within about six
5
inches of Fry’s face. When Fry attempted to arrest appellant, Ly and his partner went to
assist. As the officers struggled with appellant, Ly noticed the crowd was becoming
hostile and broke away to keep people from moving closer.
Officer Rodney Fitzpatrick arrived at Third Street and Palou Avenue about 1:45
p.m. to find at least 15 police officers trying to control a “really agitated” crowd of about
50 people in the plaza. People were yelling things including that appellant had not done
anything and, “police brutality, cops ain’t nothing.” Officers in the doorway of
MetroPCS were attempting to arrest appellant, who was lying on his stomach with his
arms underneath him, resisting the officers and trying to push himself up. Fitzpatrick put
his knee between appellant’s shoulder blades to help the officers by keeping appellant on
the ground, a technique he had learned at the police academy.
After the incident, Norment was taken to the police station and paramedics placed
him on a backboard with a neck brace and took him to San Francisco General Hospital,
where he was examined and released. He continued to suffer soreness on the back of his
head and his knee, and muscle aches in his neck and back. After the preliminary hearing
on November 2, he began having episodes of confusion, difficulty concentrating and
severe headaches. He was diagnosed with post concussion syndrome and treated with
vicodin, and he was on disability for a week. At the time of trial, his headaches were less
frequent and did not last as long.
A four-minute video taken by one of the individuals at the plaza, apparently
beginning sometime after the boombox was unplugged and continuing through
appellant’s arrest, was played at trial.2
2
The video initially shows the officers in front of a store doorway, Officer
Norment speaking into his communication device and appellant moving toward Officer
Fry while holding his phone out in front of him. Appellant steps back into the group of
people, Fry steps away from him and toward Norment, and voices can be heard yelling as
described in the testimony. A person in the gathered group takes hold of appellant’s arm
and pulls him back as he continues to yell at the officers. Fry leans against the wall of the
store and Norment again speaks into his device. As the officers remain by the wall, the
yelling continues, appellant and another man move around at the front of the group and
appellant continues to hold his phone toward the officers from several feet away.
6
Defense
Appellant testified that around 1:30 on the afternoon of October 18, he was in
Mendell Plaza, headed toward the planter box and power outlet by the corner near Palou,
which was “a designated area for people to gather,” listen to music and talk. There were
a lot of people hanging out, some listening to music. Appellant saw Officers Fry and
Norment riding away from the area near the planter box across Third Street, but when
they reached the median, they tried to make eye contact with appellant, turned and came
back. Appellant testified, “It seemed like it was in order to harass me personally.” He
felt he was personally targeted because the officers had just been in the area and had no
problem with the radio, then came back and suddenly had a problem with it when
appellant got there.
According to appellant, the music from the boombox was “low” and the people
standing around it were having conversations at normal voice levels. About 10 seconds
after the officers got back to the MetroPCS store, Fry “for some reason” unplugged the
radio. To appellant, “[i]t seemed like it was out of spite.” People, including appellant,
started asking the police officers why they had unplugged the radio and calling them
racist, saying they would not have done this in a white neighborhood and telling them to
go to the Sunset and treat the people there this way. Appellant testified that whatever he
said to the officers was “peaceful.”
Appellant steps in closer, holding his phone up toward Fry’s face and Fry takes a step
forward, telling appellant several times to “get back.” Fry pushes appellant’s arm and
appellant moves in closer, holding the phone closer to Fry’s face. Fry continues to tell
appellant to “get back,” then pushes appellant’s arm again and a woman steps in and
pushes appellant away as appellant yells “don’t touch me” and Fry says repeatedly,
“don’t put your hand in my face.” As a third officer comes into the scene, appellant
comes back in, holding the phone out toward Fry. Fry again says “don’t put your hand in
my face.” Appellant continues to move the phone closer and Fry reaches out, grabs
appellant’s arm and starts to move it behind appellant’s back. Four officers are
immediately involved in a struggle that continues for some 40 seconds, when the camera
angle shifts to a different man being arrested by two officers. When the camera returns to
appellant, he is on the ground with two officers on top of him; other officers move in and
there appears to be a struggle to secure appellant’s arms.
7
After about a minute, Fry took out his iPhone and pointed it toward appellant for
at least 45 seconds. Appellant believed the officer would not have held his camera up
this long without recording him. Appellant felt “violated, disrespected,” angry and
threatened, because he was not breaking any law. He noticed Officer Norment pull out a
can of pepper spray and shake it while looking directly at appellant. Appellant was
worried about Norment spraying him “for no reason while I’m exercising my First
Amendment right to record these officers who were harassing and recording me and
disrespecting the people from the community contrary to what’s in the police training
guide, the community policing guide.” Appellant felt the officers engaged in misconduct
by unplugging the radio while people were peacefully gathered in a place designated for
them to do so, treating them in a way they would not treat white people, and harassing
appellant when he had done nothing wrong while murders and violent crime went
unsolved. Appellant acknowledged that the officers never told him to stop recording
them but he believed they conveyed this message with their actions, by slapping his hand
away. Although the officers did not tell him to leave the plaza “in those exact words,”
they told him this by telling him to “get back” and move his hand.
Appellant took his phone out shortly after Fry began recording him, intending to
“record the misconduct” and put the recording on YouTube and the public access
channel. He walked up to the officers “slowly” to get good shots of their faces and
badges. The closest his phone got to Fry’s face was at least two feet away because any
closer the officer would have been able to knock his hand away and he would not have
been able to get the officer’s whole face in the shot. Appellant testified that if his phone
had a zoom feature, he did not know how to use it. Fry told him to “ ‘get back’ ” and to
get his hand and phone out of Fry’s face. Appellant backed up and Fry stepped toward
him, slapping his hand with “some force.” Appellant acknowledged that at this point the
video from his camera documents him saying “you touched me, you touched me” and
then “I’ll beat your ass out here, boy.” He testified that he said this to communicate that
if Officer Fry “continued to assault” him, appellant “was going to be forced to defend
himself.” Appellant’s subsequent statements, including calling the officers “fucking
8
punks” and “faggot ass motherfucker,” were “insults” because he was angry.3 Appellant
had no intent to start a fight with the police, only to exercise his First Amendment rights.
He testified that the First Amendment protected his right to record the officers regardless
of whether they were doing anything wrong, as well as his right to call them names.
After hearing a siren, which indicated to appellant that more officers had arrived,
appellant approached the officers again, starting a new recording and getting Fry’s badge
number and face again. Fry said, “you know what,” in a “matter of fact kind of way like
he had some kind of attitude or some kind of grudge against me like he was taking his job
personal,” and then grabbed appellant and told him to put his arms behind his back.
Officers Ly, Norment, and Spain all surrounded appellant, who believed they were trying
to take his phone to keep him from recording them. Appellant turned his body because
Fry was trying to knee him in the “privates.” According to appellant, Fry continued to
knee and assault him, while Norment tried to put his arm around appellant’s neck and
held onto a handful of appellant’s hair. Appellant felt himself being pulled by his hair
and his neck and lifted in the air from behind, and they all fell to the ground. He testified
that he passed out for a second or two and woke up with Officers Norment and Spain on
him and pain in his neck, hand and head. His fourth and fifth fingers had a “tingling
numb feeling” and he could not straighten them. Appellant said that he intentionally tried
to stay on his feet during the arrest because he did not want to be “slammed” on his face
or to get his “head bust.” He believed that the officers had already used force on him and
“shown their bias,” so there was “no telling what they might have done if they would
have gotten me on the floor. They might have killed me.”
A short video taken from appellant’s phone shows the camera focusing in on
Officer Fry’s face and badge; the officer says “get back” repeatedly and a voice can be
3
Appellant denied that “faggot” was an insult meaning homosexual, saying its
dictionary definition was “a cigarette or fuel for fire,” and stated that “ass” means
“donkey.” Other words he acknowledged using toward the officers, “ho” and “punk”
were just used as insults with no particular definition.
9
heard saying “you touched me, you don’t touch me” and “I can stand where I want to
stand.”
Gerald Robinson testified that as he arrived at the plaza to charge his phone from
the electrical outlet, he saw two police officers walking across Third Street, one with his
bicycle and the other without. Appellant was at the plaza, talking with his brother;
Robinson did not see appellant shadow boxing. The officers walked by, then turned
back, unplugged the boombox and stepped back closer to the wall. Some of the people in
the area got upset and disputed the officers’ right to unplug the radio. The officers said
the outlets were for city use only, but indicated the people could use them once the
officers left. People continued to ask why the officers were there when no one was doing
anything and the officers did not answer. One of the officers took out a phone and held
the camera aimed at appellant, appearing to record him. A handful of people, including
Robinson, pulled out their phones and started recording the police. It was Robinson’s
recording that was played at trial. Before he started recording, Robinson did not hear
anyone yelling and did not hear appellant tell the officers to go to the Castro.
Appellant had his camera out and it looked to Robinson as though he was trying to
move his camera in to get a clear picture of the officers’ faces and badge numbers.
According to Robinson, appellant “moved real slow” and did not look like he was going
to hit the officers. Robinson demonstrated the closest he saw appellant’s phone get to
Officer Fry’s face, a distance the prosecutor and defense counsel agreed to be about 12 to
14 inches. The crowd was shouting and Robinson heard someone say “back up” and
heard appellant’s brother talking about calling a legal group. Robinson testified that the
police officer pushed appellant’s hand and camera toward his face, causing appellant to
hit himself, and that this was shown on the video; what the video in fact shows is that
Fry’s push caused appellant’s hand to move in a circular direction away from the officer
and over appellant’s head, making no contact with any part of appellant’s body. When
the officers started to place appellant under arrest, the crowd moved in closer to see and
some people said things like “let him go” and “he didn’t do nothing.” Robinson testified
that when appellant and the officers arresting him fell, no officer’s head hit the wall.
10
Robinson acknowledged that he had been convicted of two felony drug sales in
2002 and burglary in 2005, and was on probation for a 2010 felony drug sale. He had
known Pladee Clayton, who was also arrested in this incident, for over 20 years and had
known appellant “a couple” of years.
Melissa Gore, a nurse practitioner who saw appellant at the county jail on October
26, testified that appellant complained of ongoing neck and back pain and inability to flex
his left fourth and fifth fingers. She noted that he had decreased sensation in these
fingers and was unable to fully extend them. Appellant told her he thought his symptoms
were due to being assaulted by the police when he was arrested. Gore did not think it
likely that the finger symptoms resulted from this recent an injury.
The physician who saw Officer Norment in the emergency room on October 18
testified that Norment had a “fairly minor head injury” and did not show signs of a
concussion. Dr. Sporer testified that complications from a concussion most often occur
in the first few days after the injury and it would be unusual to have symptoms first arise
after a week, but symptoms could occur later. Neuropsychologist Howard Friedman
testified that nothing in Norment’s medical records indicated he suffered a brain injury
and that the headaches Norment began to experience around November 2 would not have
been related to any injury on October 18.
DISCUSSION
I.
Appellant argues that the evidence was insufficient to support his convictions for
obstructing a peace officer performing his lawful duties in that there was no evidence the
officers were performing any lawful duties with which appellant interfered and no
evidence the officers’ orders for appellant to move away were lawful.
“In addressing a challenge to the sufficiency of the evidence supporting a
conviction, the reviewing court must examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial evidence—
evidence that is reasonable, credible and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson
11
(1980) 26 Cal.3d 557, 578.) The appellate court presumes in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence. (People v.
Reilly (1970) 3 Cal.3d 421, 425; accord, People v. Pensinger (1991) 52 Cal.3d 1210,
1237.)” (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
“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.” (People v. Simons (1996) 42 Cal.App.4th 1100, 1108-
1109.) “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.” (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329.) “Defendant
cannot be convicted of an offense against an officer engaged in the performance of
official duties unless the officer was acting lawfully at the time.” (Simons, at p. 1109.)
Appellant urges that the only suggestion of duties the officers may have been
performing was Fry’s testimony that he could not hear the transmissions on his radio and
the prosecutor’s argument—which appellant views as unsupported by any evidence—that
the officers were unable to observe and patrol the plaza. In appellant’s view, the officers
were simply “riled” by his conduct, insults, and recording of the officers’ “dismissive”
conduct. Acknowledging that his statements “in other circumstances” could be construed
as threats of harm, appellant asserts that the video demonstrates the officers were not
afraid of him, and that the jury’s failure to convict him of the section 69 charge
demonstrates the jury did not find his threats to be more than expressions of “ ‘jest or
frustration.’ ” Appellant maintains that he was arrested for engaging in the protected
behavior of recording the officers in a public place (ACLU of Illinois v. Alvarez (7th Cir.
2012) 679 F.3d 583 [reversing denial of preliminary injunction against enforcement of
statute prohibiting audiovisual recording of police officers engaged in official duties in
public place].)
12
The weakness of appellant’s argument is revealed in his observation that the “one
possible theory” upon which appellant could have been criminally liable “must revolve
around the distance at which he videoed the officers and his refusal to heed their
commands that he stand back.” Just so. Appellant initially videoed Officer Fry from a
distance of several feet. Problems began when he moved his phone closer to the
Officer’s face, repeatedly ignoring the officer’s directives to move himself and the phone
further away. Contrary to appellant’s claim of lack of evidence, both Fry and Norment
testified that their assignment on the day in question was to patrol the plaza and “be a
presence” to deter criminal activity in this high-crime area. Both officers testified that
they were unable to perform this duty because appellant’s conduct required them to
devote their entire attention to him, thereby precluding them from attending to anything
else occurring in the area. This testimony amply supports the convictions, as does the
video documenting the episode. The video documents appellant at the front of a crowd of
people yelling insults at the officers, who did not react until appellant repeatedly moved
closer to Fry, holding his phone toward Fry’s face, ignoring the officers’ commands to
move back, and returning after Fry physically moved appellant’s hand away with his own
hand. The video confirms the situation the officers described, in which appellant was so
aggressively persistent in his conduct that the officers had no choice but to devote their
full attention to appellant, leaving them unable to perform their assigned duties at the
plaza.
Appellant’s attempt to portray his conduct as a simple exercise of protected First
Amendment rights is not persuasive. “ ‘[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 [(Houston)].) In fact, ‘[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; see also People v. Quiroga [(1993)] 16 Cal.App.4th [961,] 966.) Even though the
police may dislike being the object of abusive language, they are not allowed to use the
awesome power which they possess to punish individuals for conduct that is not only
13
lawful, but which is protected by the First Amendment. (Duran v. City of Douglas, Ariz.
(9th Cir. 1990) 904 F.2d 1372, 1378.) For this reason, section 148 must be applied with
great care to speech. (. . . Quiroga, . . . at p. 968.) Although fighting words or disorderly
conduct may lie outside the protection of the First Amendment, the areas of unprotected
speech are very narrow. (Ibid.)” (In re Muhammed C., supra, 195 Cal.App.4th at pp.
1330-1331.)
But even verbal expression must be evaluated in light of the circumstances. The
United States Supreme Court has observed that while a municipality cannot
constitutionally authorize police to arrest a person who “in any manner verbally interrupts
an officer,” it would be constitutional to “ ‘punish an individual who chooses to stand
near a police officer and persistently attempt to engage the officer in conversation while
the officer is directing traffic at a busy intersection.’ ” (Houston, supra, 482 U.S. at
p. 462, fn. 11.) The First Amendment does not preclude conviction under section 148,
subdivision (a), where words go “beyond verbal criticism, into the realm of interference
with duty.” (People v. Lacefield (2007) 157 Cal.App.4th 249, 261, disapproved on other
grounds in People v. Smith (2013) 57 Cal.4th 232, 242.) Here, appellant’s verbal
communication was coupled with conduct that clearly interfered with the police officers’
ability to do their jobs.
II.
Appellant further argues that the court did not instruct the jury adequately
regarding the violation of section 148, subdivision (a), that was alleged as a lesser offense
of the section 69 violation charged in count 2. He raises a number of specific complaints,
which we will address in turn after setting out the basic principles applicable to
appellant’s claim.
“ ‘[T]he trial court normally must, even in the absence of a request, instruct on
general principles of law that are closely and openly connected to the facts and that are
necessary for the jury’s understanding of the case.’ ” (People v. Jennings (2010) 50
Cal.4th 616, 667, quoting People v. Carter (2003) 30 Cal.4th 1166, 1219.) “That
obligation includes instructions on all of the elements of a charged offense.” (People v.
14
Cummings (1993) 4 Cal.4th 1233, 1311.) “As to pertinent matters falling outside the
definition of a ‘general principle of law governing the case,’ it is ‘defendant’s obligation
to request any clarifying or amplifying instruction.’ ” (People v. Estrada (1995) 11
Cal.4th 568, 574, quoting People v. Kimble (1988) 44 Cal. 3d 480, 503.) “ ‘[T]he
language of a statute defining a crime or defense is generally an appropriate and desirable
basis for an instruction, and is ordinarily sufficient when the defendant fails to request
amplification. If the jury would have no difficulty in understanding the statute without
guidance, the court need do no more than instruct in statutory language.’ ” (Estrada, at
p. 574, quoting People v. Poggi (1988) 45 Cal.3d 306, 327.)
Here, the court instructed pursuant to CALCRIM No. 2656 that in order to prove
appellant guilty of violating section 148, subdivision (a), the prosecution was required to
prove that “the officer involved was a peace officer lawfully performing or attempting to
perform his duties as a peace officer,” that appellant “willfully resisted, obstructed or
delayed that officer in the performance or attempted performance of those duties,” and
that when appellant acted, “he knew or reasonably should have known that the officer
was a peace officer performing or attempting to perform his duties.” The instructions
continued, “Someone commits an act willfully when he does it willingly or on purpose.
[¶] It is not required that he intend to break the law, hurt someone else or gain any
advantage.” The court also instructed that “[a] peace officer is not lawfully performing
his or her duties if he or she is unlawfully arresting or detaining someone or using
unreasonable or excessive force in his or her duties.” (CALCRIM No. 2670.)
Unanimity
Appellant first contends that the trial court erred in failing to instruct that the
jurors were required to agree unanimously on which lawful activities the officers were
performing at the time of appellant’s arrest and on when appellant’s actions became a
crime. The court did not read the paragraph in CALCRIM No. 2656 pertaining to
unanimity, which would have specified the acts by which the prosecution alleged
appellant resisted, obstructed or delayed the officer and directed, “You may not find the
defendant guilty unless you all agree that the People have proved that the defendant
15
committed at least one of the alleged acts of [resisting, obstructing or delaying the
officer] who was lawfully performing his or her duties, and you all agree on which act
[he] committed.” (CALCRIM No. 2656.) The court did instruct, with respect to the
charged section 69 offense, that the jurors had to agree unanimously on which of
appellant’s acts was the basis of the offense.
In order to ensure the defendant’s constitutional right to a unanimous verdict, “[i]t
is established that some assurance of unanimity is required where the evidence shows that
the defendant has committed two or more similar acts, each of which is a separately
chargeable offense, but the information charges fewer offenses than the evidence shows.”
(People v. Sutherland (1993) 17 Cal.App.4th 602, 611-612.) “The key to deciding
whether to give the unanimity instruction lies in considering its purpose. The jury must
agree on a ‘particular crime’ (People v. Diedrich [(1982)] 31 Cal.3d [263,] 281); it would
be unacceptable if some jurors believed the defendant guilty of one crime and other jurors
believed her guilty of another. But unanimity as to exactly how the crime was committed
is not required. Thus, the unanimity instruction is appropriate ‘when conviction on a
single count could be based on two or more discrete criminal events,’ but not ‘where
multiple theories or acts may form the basis of a guilty verdict on one discrete criminal
event.’ (People v. Perez (1993) 21 Cal.App.4th 214, 223.) In deciding whether to give
the instruction, the trial court must ask whether (1) there is a risk the jury may divide on
two discrete crimes and not agree on any particular crime, or (2) the evidence merely
presents the possibility the jury may divide, or be uncertain, as to the exact way the
defendant is guilty of a single discrete crime. In the first situation, but not the second, it
should give the unanimity instruction.” (People v. Russo (2001) 25 Cal.4th 1124, 1134-
1135 (Russo).) A unanimity instruction is not required where the offense was committed
as part of a “continuous course of conduct, whose acts were so closely connected in time
as to form part of one transaction.” (People v. Maury (2003) 30 Cal.4th 342, 423.)
Appellant maintains that a unanimity instruction was required because the jurors
could have disagreed about what lawful duty the officers were performing or about which
of appellant’s acts amounted to resisting, obstructing or delaying the officers’
16
performance of their duties. The former point derives from appellant’s view that the
officers were performing no duties at all while appellant was approaching Fry: He
describes the video as portraying Officer Fry “standing while in the company of Officer
Norment and not doing much else,” and the officers’ remaining “relatively immobile” as
appellant moved around with his cell phone, until Frye made physical contact with
appellant. As we have said, the evidence supports a determination that the officers, as
they explained, were attempting to perform their assigned duty of maintaining a presence
in the area to deter criminal activity. Indeed, there was no evidence of any other duty the
officers might have been performing or attempting to perform. On this issue, there was
simply no basis upon which the jurors could have disagreed.
As for potential disagreement about appellant’s actions, appellant’s focus is on the
fact that his conduct began as an exercise of his First Amendment right to criticize the
police. In his view, some jurors might have believed that he resisted, obstructed or
delayed the officers’ performance or attempted performance of their duties by his verbal
abuse and filming of the officers while others believed it was only when he moved too
close to the officers that his previously protected behavior became a criminal offense.
The jury was instructed that neither appellant’s insults nor his filming of the
officers, on their own, were unlawful. The prosecutor specifically emphasized in closing
argument that appellant was not being prosecuted for what he said but for what he did:
“The officers told you themselves, ‘we did not mind the words. We didn’t mind the
insults. We’re used to that. We’re trained to put up with that. [¶] The problem was we
couldn’t do our job because he was in our face and would not get back, and he was
distracting us by yelling at us and being in our face.’ ” Appellant engaged in a
continuous course of conduct that eventually crossed the line from lawful to unlawful.
Contrary to appellant’s characterization, there is little question when that point occurred.
Appellant’s yelling and holding out his cell phone did not provoke a response from the
officers initially; it was only when appellant repeatedly moved closer to the officers
despite their commands to step back that Officer Frye moved to arrest him. It is apparent
that the resisting, obstructing or delaying an officer at issue in count 2 falls within the
17
category that Russo instructs does not require a unanimity instruction. If jurors disagreed
about the precise moment when appellant’s conduct crossed the line, the disagreement
would have been about “the exact way [appellant] is guilty of a single discrete crime,”
not about which of multiple discrete crimes appellant committed. (Russo, supra, 25
Cal.4th at pp. 1134-1135.)
Lawfulness of Officers’ Orders
Appellant next contends that the trial court erred in failing to instruct the jury that
appellant was only required to obey the officers’ lawful orders. He maintains that the
jury demonstrated its doubt whether Officer Fry was performing a lawful duty at the time
he ordered appellant to “step back” by sending the court the question, “Was the defendant
required to move away when Fry [sic] said ‘step back?’ ” Appellant argues that the court
had a sua sponte duty to anticipate this question and address it in its instructions. As we
understand it, appellant’s argument is that without an instruction that appellant was only
required to comply with the officer’s lawful orders, the jury had insufficient guidance on
how to decide whether the officers were engaged in the performance of lawful duties at
the time of appellant’s alleged offense.
We do not view the jury’s question as reflecting any uncertainty as to whether
Officer Fry was performing a lawful duty at the time he ordered appellant to step back.
The jury’s full question was, “Is there a legal requirement for the general public to
comply with police officer orders? For example: was the defendant required to move
away when Fry said ‘step back’?” The question did not pertain to what duties the officer
was engaged in at the moment he said, “step back”; it was a general question about
citizens’ legal obligations to comply with police officers’ orders.
In any event, the trial court’s instructions addressed each of the elements of the
offense of which appellant was convicted. If appellant believed further instruction was
required on a particular point raised by the evidence, it was incumbent upon him to
request a clarifying instruction. (People v. Estrada, supra, 11 Cal.4th at p. 574.) He did
not do so.
18
Appellant cites In re Manuel G. (1997) 16 Cal.4th 805, 817, for the proposition
that the trial court had a sua sponte duty to instruct that in order to convict, the jury had to
find not only that the officers were acting lawfully at the time of the offense but also that
their commands were lawful. Manuel G. was concerned with a charge of violating
section 69 by attempting threats or violence to deter or prevent an officer from
performing a duty imposed by law. (Manuel G., at p. 814.) At the page cited by
appellant, the court explained that for this offense, while the threat of violence must be
intended to deter an officer’s lawful conduct in connection with his or her duties as an
officer, the statute “does not require that the officer be engaged in the performance of his
or her duties at the time the threat is made. Instead, the plain language of the statute
encompasses attempts to deter either an officer’s immediate performance of a duty
imposed by law or the officer’s performance of such a duty at some time in the future.”
(Id. at p. 817.) This is in contrast with the other type of offense under section 69,
resisting an officer by force or violence, for which the officer must have been acting
lawfully when the defendant resisted. (Manuel G., at p. 816.) We fail to see how Manuel
G. furthers appellant’s argument beyond the undisputed point—covered in the court’s
instructions—that the conduct appellant resisted or attempted to deter had to be lawful.
Appellant additionally suggests that a proper instruction would have “paralleled
the definition of the offense of failure to disperse following an order by an officer,” citing
CALCRIM No. 2686 and In re Brown (1973) 9 Cal.3d 612, 623, for the statement that
this offense “requires as well that the officer’s order was lawful and made only under
conditions of a clear and present danger of violence.” Appellant was not charged with
failure to disperse, the subject of CALCRIM No. 2686, or unlawful assembly, the offense
at issue in In re Brown. To the extent appellant is suggesting his conviction under section
148, subdivision (a)(1), required proof of a clear and present danger of violence, as
discussed in In re Brown for unlawful assembly, he offers no support for the suggestion.
The express “lawful order” requirement stated in CALCRIM No. 2686, which instructs
that the offense of refusing to disperse after being ordered to do so requires proof that the
defendant was present at the location of a riot, rout, or unlawful assembly, a public
19
officer lawfully ordered the defendant to disperse, and the defendant willfully remained
present after the order, states a necessary element of the offense. Resisting or attempting
to deter an officer’s performance of duty does not necessarily involve compliance with an
officer’s order. As we have said, the jury was repeatedly instructed that appellant could
be convicted only if the officers’ conduct he resisted or sought to deter was lawful. This
was sufficient for the jury’s understanding of the case. Again, if appellant felt the jury
needed to be specifically instructed that giving an unlawful order did not constitute
lawful conduct, it was his obligation to request such an instruction.
Finally, contrary to appellant’s further argument, the trial court’s response to the
jury’s question correctly clarified how the jury should determine whether appellant was
required to comply with the officers’ orders. The court responded to the jury’s question
as follows:
“The answer to this question is a question for the jurors to answer, and I think that
now that you have the benefit of all of the court’s instructions, you can read the
instructions that deal with performance of duty and use of excessive force, if there was
such, and self-defense.
“So, in answer to your question ‘was the defendant required to move away when
Officer Fry said, “step back,” ’ the answer is as follows:
“If the jury believes that the order was not in the lawful performance of his duties,
then the answer would be no, there was not a requirement to move back.
“On the other hand, if the jury believes that the order was given in the lawful
performance of his duties and the defendant’s conduct, as determined by the jury,
obstructed the officer or violently threatened the officer by words and conduct to deter or
prevent the performance of the official duty, then the answer can be yes, that there was a
requirement to move away.
“Consult—you should read all the instructions.
“In particular, you can read instruction 2651, which further provides that a police
officer may use his own discretion in performing his job duties, and also, under the self-
20
defense instruction, may give such order if the jury believes it was a reasonable exercise
of self-defense as set forth in the self-defense instructions which commence with 3470.
“If that is the situation, then the answer is different—could be different as
determined by the jury.”
Appellant complains that the court’s response did not direct the jury to determine
whether the officers were performing “an identifiable duty with which appellant
interfered at the time he was ordered to move away.” But the jury was repeatedly
informed, in the court’s response to this question and previously in the instructions
defining the charged and lesser offenses, that appellant could not be convicted unless the
jury found that the officers were engaged in the performance of their lawful duties. As
we have discussed, the evidence raised no question as to what duty the officers claimed
they were attempting to perform; the jurors had to accept or reject the officers’ testimony
that they were performing their assigned task of patrolling and maintaining a presence at
the plaza, but there was no suggestion any other duty was at issue.
Appellant also complains that the court’s reference to self defense was improper
and likely to mislead the jury because there was no evidence Officer Fry acted in self
defense prior to the initiation of the arrest process. This is not correct. Officer Fry
testified that he felt threatened by appellant, he was afraid appellant would hit him, and
he was afraid he or Norment might be hurt. Officer Norment perceived appellant’s
conduct similarly: He testified that appellant, “very, very incensed,” began to come
closer to the officers, looking like he wanted to fight them; when Norment took out his
pepper spray, appellant said something about the officer needing pepper spray and being
unable to “fight him like a man.” Norment was nervous because he thought he and Fry
were about to be attacked. It was for the jury to evaluate Officer Fry’s directive to
appellant to move away in the context of the circumstances the witnesses described and
the video portrayed.
Appellant’s Knowledge
Appellant further contends that the trial court erred in failing to instruct that
appellant could not be convicted unless he had knowledge that he was violating a lawful
21
order. The starting point of appellant’s argument—that section 69 requires “ ‘actual
knowledge on the part of the defendant that the person being resisted is an executive
officer and that the officer is engaged in the performance of his/her duty’ at the time he
commits the offense,” as stated in People v. Hendrix (2013) 214 Cal.App.4th 216 and
People v. Rasmussen (2010) 189 Cal.App.4th 1411, 1419, 1421—is unassailable, but not
relevant to the knowledge element of the offense appellant was convicted of, violation of
section 148. While section 69 requires that the defendant “knowingly” resisted the
officer engaged in lawful duties, section 148 requires only that the defendant “knew or
reasonably should have known” that the person resisted, obstructed, or delayed “was a
peace officer engaged in the performance of his or her duties.” (People v. Simons, supra,
42 Cal.App.4th at pp. 1108-1109, italics added.) People v. White (1980) 101 Cal.App.3d
161, 166, which appellant cites for the proposition that violation of section 148 requires
the same actual knowledge as violation of section 69, in fact discusses the requirement
that the officer’s conduct must be lawful but says nothing about the defendant’s
knowledge of that fact, much less the defendant’s knowledge that his own conduct is
unlawful. Nor is the defendant’s knowledge of the unlawfulness of his or her conduct
discussed in People v. Gonzales (1990) 51 Cal.3d 1179, 1217, upon which appellant
relies for its statement that disputed facts on the lawfulness of the officer’s duty must be
submitted to the jury—which they were in the present case.
Appellant’s attempt to liken his case to one involving a charge of participating in
an unlawful assembly (§§ 407 [defining “unlawful assembly” as two or more persons
assembled together “to do an unlawful act, or do a lawful act in a violent, boisterous, or
tumultuous manner”], 408 [misdemeanor to participate in a “rout or unlawful assembly”])
is not persuasive. Appellant points out that a person cannot be convicted of violating
sections 407 or 408 absent evidence that the defendant “knowingly” participated in an
assembly where unlawful acts were being committed. (In re Wagner (1981) 119
Cal.App.3d 90, 103-104.) The knowledge requirement in the present case is different.
The offense of unlawful assembly does not require that the defendant personally
committed any unlawful act; he or she must know, however, that someone in the
22
assembly did so; continued participation in spite of this knowledge is what defines the
offense. A conviction under section 148, by contrast, is based on the defendant’s own
commission of an unlawful act. It requires only “willful” conduct—meaning that the
person “not only has ‘a purpose or willingness to commit the act’ but also ‘knows what
he is doing[,] intends to do what he is doing[,] and is a free agent.’ ” (People v. Ibarra
(2007) 156 Cal.App.4th 1174, 1197, quoting In re Trombley (1948) 31 Cal.2d 801, 807;
People v. Atkins (2001) 25 Cal.4th 76, 85.) It “does not require any intent to violate law,
or to injure another, or to acquire any advantage.” (§ 7.) Even a statute requiring the
defendant to act “knowingly” does not require knowledge that the act is unlawful: “The
word ‘knowingly’ imports only a knowledge that the facts exist which bring the act or
omission within the provisions of this code. It does not require any knowledge of the
unlawfulness of such act or omission.” (Ibid.)
While appellant believed himself to be engaged in exercising his First Amendment
rights, the requirements of section 148 are clear. The prosecution had to prove that the
officers’ were engaged in the performance of their lawful duties; that appellant knew or
reasonably should have known the officers were peace officers performing or attempting
to perform their duties; and appellant willfully resisted, delayed or obstructed the
officers’ performance of those duties. There is no requirement that appellant knew
precisely when his actions became “violative of the law,” as he contends
Pre-arrest Warning
Appellant next challenges the trial court’s failure to instruct that when it is not
apparent that an officer is performing his lawful duties, the defendant must be warned he
is obstructing the officer before he can be arrested. He contends that because his initial
conduct was constitutionally protected, the officers had to advise him that he was subject
to arrest at the point his actions became unlawful. He further contends that the trial
court’s instructions on the lawfulness of peace officers’ conduct omitted the portion of
CALCRIM No. 2670 stating, “[The officer must tell that person that the officer intends to
arrest him or her, why the arrest is being made and the authority for the arrest.] [The
officer does not have to tell the arrested person these things if the officer has probable
23
cause to believe that the person is committing or attempting to commit a crime, is fleeing
immediately after having committed a crime, or has escaped from custody.] [The officer
must also tell the arrested person the offense for which he or she is being arrested if he or
she asks for that information.]” (CALCRIM No. 2670.)
Neither appellant nor respondent have read the record correctly. In reading
CALCRIM No. 2670 to the jury, as well as in the written instructions, the court included
the portion of the instruction stating, “The officer must tell a person being arrested that
the officer intends to arrest him, why the arrest is being made and the authority for the
arrest. [¶] The officer does not have to tell the arrested person these things if the officer
has probable cause to believe that the person is presently committing or attempting to
commit a crime.” The court omitted only the portions of the instruction that had no
application to the facts of the case—that the officer need not provide the information
specified if the person being arrested “is fleeing immediately after having committed a
crime, or has escaped from custody” and that the officer must tell the person the offense
for which he or she is being arrested if the person asks.
Appellant urges that the provision stating an officer does not have to warn a
person of his intent to arrest or provide the reason and authority for the arrest if the
officer has probable cause to believe the person is presenting committing or attempting to
commit a crime is not applicable in the present case because “the very issue is whether
the actions in which appellant was engaged constituted a crime at all, and whether he had
knowledge of that fact.” The issue was properly given to the jury. If the jury had
accepted appellant’s argument that he was exercising his First Amendment rights and not
interfering with any lawful execution of duties by the police officers, the jury would have
found appellant not guilty. The verdicts, finding appellant not guilty of the felony
offenses but guilty of the lesser included ones, reflects the jury’s determination that the
prosecution failed to carry its burden of proof as to appellant’s intent—required for
conviction under section 69—and Officer Norment’s injury, but did prove beyond a
reasonable doubt that appellant resisted, obstructed, or delayed the officers’ lawful
performance of their duties.
24
Words as Basis for Arrest
As requested by the defense, the court instructed in describing the offense charged
in count 2, violation of section 69, that “[t]hreats are statements that a reasonable listener
would understand in light of the context and surrounding circumstances, to constitute a
serious expression of an intent to commit an act of unlawful violence, rather than an
expression of jest or frustration.”4 The trial court did not, however, give an instruction
requested by the defense that would have stated, “ ‘The First Amendment protects the
right of a citizen to verbally criticize or challenge police officers. Speech that is
provocative and challenging is protected against censorship and punishment, unless
shown likely to produce a clear and present danger of a serious substantive evil that rises
far above public inconvenience, annoyance, or unrest.’ ” Appellant contends that
because the latter instruction was not given, the jury might have concluded that although
his words of “jest or frustration” did not violate section 69, they could be the basis of
arrest for violation of section 148.
Finding that appellant’s authorities provided no support for the proposed
instructions as written, the trial court stated, “[t]he defendant cannot be convicted for his
statements to the police based on the facts of this case. [¶] The police say that no crime
was committed by the defendant’s statement to them or by the CALCRIM instructions
that the court is giving on the definition of the offenses involved.
4
Based on appellant’s citation to the record, it appears he is challenging the
court’s decision not to give “Special Instruction 1,” quoted in the text as it appears on the
cited page of the clerk’s transcript. At another point in the record, “Special Instruction 1”
continued with an additional paragraph stating, “ ‘True threats’ are not protected by the
First Amendment. True threats are statements that a reasonable listener would
understand, in light of the context and surrounding circumstances, to constitute a serious
expression of an intent to commit an act of unlawful violence, rather than an expression
of jest or frustration.” Appellant also requested “Special Instruction 2”: “The First
Amendment right to free speech protects the right to gather information about what
public officials do on public property, and specifically, a right to record matters of public
interest. The act of video recording the police in a public place is constitutionally
protected activity.”
25
In addition to the instruction about threats quoted above, the court instructed the
jury that “[i]nsults by themselves to peace officers performing their duties are not
unlawful. [¶] If such insults are reasonably and objectively believed to presently
accompany an immediate or imminent assault, the officers may use lawful self-defense as
set forth in the court’s other instructions on this subject. [¶] Audio and video recording
of police officers performing their duties in public is lawful. [¶] . . . [¶] However,
conduct that obstructs, resists or delays an officer’s performance of his duties may be
found unlawful as provided for in these instructions.”
Appellant argues that under the First Amendment, “for speech to be proscribed in
any manner, or form the basis of a criminal action, it must pose some danger to persons
affected by it.” His authorities all concern attempted restrictions on pure speech. The
proposed instruction at issue was drawn from Houston: “ ‘Speech is often provocative
and challenging. . . . [But it] is nevertheless protected against censorship or punishment,
unless shown likely to produce a clear and present danger of a serious substantive evil
that rises far above public inconvenience, annoyance, or unrest.’ ” (Houston, supra, 482
U.S. at p. 461, quoting Terminiello v. Chicago (1949) 337 U.S. 1, 4.” As we discussed
earlier, Houston struck down a municipal ordinance that made it unlawful to verbally
“interrupt a police officer in the performance of his or her duties” as constitutionally
overbroad, but acknowledged that in certain circumstances, a combination of speech and
conduct that interfered with an officer’s performance of his or her duties might
constitutionally be punished. (Houston, at pp. 460, 462, fn. 11.) Here, as appellant was
punished for his conduct, these cases concerning criminalization of pure speech do not
support his argument that his expression of outrage could be criminalized only if it
presented a “clear and present danger of a serious substantive evil that rises far above
public inconvenience, annoyance, or unrest.”5
5
People v. Mirmirani (1981) 30 Cal.3d 375, 382, found unconstitutionally vague
two statutes that criminalized certain threats made to “achieve social or political goals.”
Among other things, the court noted that the crime defined by these statutes “can be
committed by words alone, without action or an intent to act. Therefore, the strict
26
The trial court’s instructions informed the jury that it was lawful for appellant to
insult the police officers and to make audio and video recordings of the officers’ public
conduct, and specifically distinguished this lawful conduct from unlawful obstruction,
resistance or delaying of the officers’ performance of duties.6 These instructions
precluded the jury from convicting appellant solely on the basis of his constitutionally
protected activity. The officers testified that they did not arrest appellant because of his
insults or his recording of them but because his conduct, repeatedly moving close to them
and holding his phone toward Fry’s face despite orders to move back, combined with his
expression of anger, demanded all their attention and made it impossible for them to
standards required by the First Amendment must be applied in analyzing respondent’s
vagueness challenge. ‘[A] statute such as this one, which makes criminal a form of pure
speech, must be interpreted with the commands of the First Amendment clearly in
mind.’ ” (Id. at p. 383, quoting Watts v. United States (1969) 394 U.S. 705, 707.) The
Mirmirani court noted, “Although the Legislature may constitutionally penalize threats,
even though they are pure speech, statutes which attempt to do so must be narrowly
directed only to threats which truly pose a danger to society.” (Mirmirani, at p. 388, fn.
10.)
Bridges v. California (1941) 314 U.S. 252, 258, involved contempt of court
convictions based upon comments pertaining to pending litigation that were published in
newspapers. The court noted the statement in Schenck v. United States (1919) 249 U.S.
47, that in determining whether a law abridges the constitutional right to free expression,
“there must be a determination of whether or not ‘the words used are used in such
circumstances and are of such a nature as to create a clear and present danger that they
will bring about the substantive evils.’ ” (Bridges, at p. 261, quoting Schenck.) Although
commenting that this statement did not “comprehend the whole problem,” the court
viewed it as affording “practical guidance in a great variety of cases in which the scope of
constitutional protections of freedom of expression was in issue.” (Bridges, at pp. 261-
262.)
6
Appellant argues that the jury was only told appellant’s words and recording
activity could not be the basis of a violation of section 69, not that they could not be the
basis for his arrest. He is mistaken. As given orally by the court, the instructions that
insults and recording of police officers are not in themselves unlawful were not
connected to the instructions on the elements of a violation of section 69; they followed
the court’s instructions on the elements of all the charged and lesser offenses, on self
defense, on lawful performance of peace officers’ duties and on reasonable use of force.
In the written instructions, these instructions appear on a page captioned “Instruction
Regarding the First Amendment.”
27
perform their assigned duties. The prosecutor stated in closing argument that appellant
had a legal right to insult the officers and record them. Appellant’s assertion that there is
a reasonable chance the jury believed that his words could be a legitimate ground for
arresting him for violation of section 148 is without basis.
Appellant asserts that the trial court had a duty to go beyond the standard
CALCRIM instructions in this case because the evidence suggested he honestly believed
he was acting in accordance with his constitutional right to free speech. Acknowledging
that “current law” does not require more than general intent for a violation of section 148,
he urges that where a defendant believes he is exercising protected First Amendment
rights, he may be convicted of violating section 148 only upon proof of scienter,
knowledge that his acts were not constitutionally protected.
Appellant relies upon Village of Hoffman Estates v. Flipside, Hoffman Estates
(1982) 455 U.S. 489, 499 (Hoffman), and City of Chicago v. Morales (1999) 527 U.S. 41,
55 (Morales). These cases discuss facial challenges to statutes as unconstitutionally
vague. A law may be invalidated for vagueness if it “fail[s] to provide the kind of notice
that will enable ordinary people to understand what conduct it prohibits” or if it
authorizes or encourages arbitrary and discriminatory enforcement. (Morales, at p. 56;
Hoffman, at p. 498.) Hoffman explained that the degree of vagueness constitutionally
tolerated in a law depends in part on the nature of the law, with greater tolerance
extended to laws with civil rather than criminal penalties and “a more stringent vagueness
test” applied to a law that “threatens to inhibit the exercise of constitutionally protected
rights” such as the right to free speech or association. (Hoffman, at pp. 498-499.)
Hoffman noted that “a scienter requirement may mitigate a law’s vagueness, especially
with respect to the adequacy of notice to the complainant that his conduct is proscribed.”
(Id. at p. 499.) Morales, similarly, stated that “[w]hen vagueness permeates the text” of a
“criminal law that contains no mens rea requirement,” the law is subject to facial attack.
(Morales, at p. 55.)
Appellant is not challenging the constitutionality of section 148. Indeed, his
statement that he would not contest the application of section 148 “to situations where the
28
officers are acting in the performance of an actual and identifiable duty” reveals that the
predicate for his “scienter” argument is simply his view of the evidence, under which the
officers were engaged in no duty at all and had no authority to order him to move away.
The constitutional principles stated in Hoffman and Morales provide no support for
appellant’s argument that he could not be convicted of resisting, delaying, or obstructing
a peace officer absent knowledge that he was mistaken in believing he was engaged in
constitutionally protected activity.
Moreover, as we have said, the trial court did supplement the standard CALCRIM
instructions with instructions addressing the First Amendment issue. Had the jurors
believed appellant was only insulting the officers and recording them, the instructions
would have directed them to find appellant not guilty.
Finally, having rejected appellant’s individual claims of instructional error, we
necessarily find meritless the additional contention that the cumulative effect of the errors
is prejudicial.7
7
In the course of this argument, appellant suggests that the jury’s questions to the
court during deliberations demonstrate confusion over how to determine whether the
officers were acting lawfully and what obligations appellant had to comply with their
orders. In fact, none of the questions reflect confusion over how to view the officers
actions; the only one that might have reflected the jury’s consideration of the section 148
offenses was the one we have discussed concerning appellant’s obligation to comply with
Fry’s order.
The other questions were as follows. Shortly after beginning deliberations, before
receiving the written jury instructions, the jury asked the court for the legal definitions of
“serious bodily injury” and “simple assault,” as well as the question about appellant’s
obligation to comply with Fry’s order to step back. Later, the jury asked, “ ‘When did the
moment of assault occur?’ ” Still later, after informing the court that it was deadlocked
on count 2, the jury asked several questions pertaining to the intent required under section
69 and definition of “threat” in that offense:
1) “Please clarify in the instructions 2651, count II point #2 the sentence – ‘When the
defendant acted, he intended to prevent or deter the executive officer from
performing the officer’s lawful duty.’ (1) Please further define ‘intended.’ Please
confirm or deny that the jury cannot know what the defendant’s intention was at
the time he acted, since we cannot know what he was actually thinking at that
time. How else may we as the jury infer intent?”
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DISPOSITION
The judgment is affirmed.
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Kline, P.J.
We concur:
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Richman, J.
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Stewart, J.
2) “(1) Who is the ‘reasonable listener’?
-a reasonable bystander?
-the police officer?
-the person making the threats?
“(2) Please further clarify ‘a serious expression of an intent to commit an act of
unlawful violence, rather than an expression of jest or frustration.”
3) “Please clarify the term ‘threat of violence’ in the instructions as it pertains to the
following sentence.
“ ‘Threats are statements that a reasonable listener would understand, in light of
the context and surrounding circumstances, to constitute a serious expression of an
intent to commit an act of unlawful violence, rather than an expression of jest or
frustration.’ ”
4) “In the instructions 252 Union of Act and Intent, specific to the phrase ‘. . . but
must do so with a specific intent.’ [¶] Does specific intent refer to ‘prevent or
deter the executive officer from performing the officer’s lawful duty’? [¶] Is it
possible for the defendant to have more than one intent?”
30