13. Criminal Law .G Obstruction of Justice,9.10.14..docx

Executive Officers); 14 – Juvenile Law (III Detention of Juveniles). I.   INTRODUCTION The purpose of this chapter is to familiarize you with some of the main terms and concepts of criminal law, as well as with the actual statutory language and/or elements of many specific crimes that you may encoun...

Executive Officers); 14 – Juvenile Law (III Detention of Juveniles). I.   INTRODUCTION The purpose of this chapter is to familiarize you with some of the main terms and concepts of criminal law, as well as with the actual statutory language and/or elements of many specific crimes that you may encounter as a peace officer. The legal system in California was derived from the English common law. English common law originated as unwritten laws and traditions that governed the common people (working classes) of medieval England. As courts recorded their cases and decisions, a form of case law evolved. Eventually, through this evolutionary process, coupled with the increased demand for justice by the common people, a formalized legal system was developed. Common law is bound to the letter of the law.  The California legal system is directed toward the spirit of the law.  The California Legislature expressed its intent specifically when enacting Penal Code section 4: "The rule of common law, that penal statutes are to be strictly construed, has no application to this Code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice." Thus, when a reasonable question arises as to the meaning or intent of a given law, the courts will look at not only the literal meaning of the words used, but also the spirit in which the statute was written, its relation to other code provisions, the legislative intent behind it, and the scope of its effect. California recognizes no unwritten laws; for a law to be enforceable, it must be codified. For example, an arrest will not be valid under California law unless a written statute exists at the time of arrest that makes the suspect's conduct illegal. A crime or public offense is an act committed or omitted in violation of a law that carries, upon conviction, any of the following punishments:  death, incarceration, fine, removal from office, or disqualification to hold and enjoy any office of honor or profit in this state.  (Pen. Code, § 15.) No one can be punished for a mere intent to violate the law or to do an act prohibited by law; it takes some kind of specific act or omission. Additionally, California does not recognize ex post facto laws, i.e., a retroactive criminal statute written after conduct has already occurred that would make the conduct illegal, increase the punishment, or remove a defense. Although crimes in California are governed generally by statutes in the Penal Code and other California codes, cities and counties often enact local laws (ordinances) to govern more specialized or localized problems and procedures.  "Substantive law" regulates conduct. It states what a person must do or not do by creating, defining, and regulating rights. "Procedural law" prescribes methods for enforcing those rights or for obtaining redress for their invasion. G.   Obstruction of Justice There are various forms of obstructing justice. In all cases, however, they aid the criminal and thwart justice. 9.   Resisting Public Officers in the Performance of Their Duties (Pen. Code, § 148) Misdemeanor "Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician . . . in the discharge or attempt to discharge any duty of his or her office or employment" is guilty of a misdemeanor.  Violation of this section requires that a person "actively impedes" an officer.  Also, the suspect must know, or reasonably should have known, that the person he is resisting is a peace officer.  (Lopez (1986) 188 Cal.App.3d 592.) If a suspect through his conduct, the use of force, or even the threatened use of force interferes with the performance of an officer's duty, there is a clear violation of section 148.  (Pool (1986) 42 Cal.3d 1051, 1070.)  Flight during a lawful detention constitutes "resisting," as does running and hiding when an officer is about to effect a detention.  (Quiroga (1993) 16 Cal.App.4th 961, 967; Allen (1980) 109 Cal.App.3d 981, 987; but see Charles G. (2017) 14 Cal.App.5th 945 ["Charles did not violate section 148 by jogging across the street, abandoning his backpack or jumping a fence to avoid the police unless he knew, or reasonably should have known, the police were pursuing him"]).  Providing officers with a false name following a lawful arrest constitutes "obstruction."  (Christopher (2006) 137 Cal.App.4th 418, 431-432 [the fact of a separate chargeable offense under Pen. Code, § 148.9 is irrelevant].)  A DUI suspect throwing his coat and keys into the car during a detention and then locking the car is willful obstruction.  (Quick (2016) 5 Cal.App.5th 1006.)  Refusing to provide identification so that an officer can issue a citation for a violation of a municipal ordinance delays an officer in the performance of her duties.  (Knoedler (2019) 44 Cal.App.5th Supp. 1.) This section also prohibits a person from removing a firearm or other weapon from the person or immediate presence of an officer.  It makes no difference whether the person is "resisting" at the time he takes the firearm or other weapon.  Furthermore, if he takes the firearm, it makes no difference whether the person intends to permanently deprive the officer of its possession. Additionally, it is a violation of section 148 to knowingly and maliciously interrupt, disrupt, impede, or otherwise interfere with the transmission of a communication over a police radio frequency.  (Pen. Code, § 148, subd. (a)(2).)  It is not a violation--and not grounds for a detention--to take a photograph or record an officer in a public place or in a place where the person making the recording has a right to be, absent additional facts.  (Pen. Code, § 148, subd. (g).) Note that a violation of section 148 requires that officers are lawfully performing their duties when the violation occurs.  An officer attempting to make an arrest without probable cause is not lawfully performing her duties, and it is not a crime to nonviolently resist an unlawful arrest.  (Michael V. (1974) 10 Cal.3d 676; Gerberding (2020) 50 Cal.App.5th Supp. 1 [officer's unreasonable "mistake of law" in enforcing city ordinance prohibiting anyone from blocking a street precluded a violation of § 148].) Additionally, a person has some leeway not to respondimmediately to a police command.  However, responding with defiance, whether by words or actions, may constitute a section 148 violation.  Example:   Defendant stepped up to a police vehicle where an arrested suspect was sitting and began talking to him.  When officers ordered him to step away, he acknowledged them with a hand gesture but continued talking.  This was a section 148 violation.  (Muhammed C. (2002) 95 Cal.App.4th 1325; see In re J.C. (2014) 228 Cal.App.4th 1394--disruptive student would not follow officer's command to sit down and pulled away from attempt to control him.) Example:   It was a violation of section 148 for the defendant, upon observing an undercover operator attempting to purchase narcotics from a suspect, to shout to the suspect, "Get away from that guy!  The guy's a cop!"  (Robles (1996) 48 Cal.App.4th Supp. 1.) Example:   It was a violation of section 148 for a father, when officers entered his house to investigate possible child abuse, to enter the bedroom with them, yank the covers off his child (the suspected victim) and say, "Son, get up.  The police are here because they think I have been beating you.  You know that didn't happen, but that's what they think."  (Green (1997) 51 Cal.App.4th 1433.) When it comes to charging a violation of section 148 based strictly on a suspect's use of words (other than threatening to use force against you), you must proceed very carefully because "the areas of unprotected speech are extremely narrow."  (Quiroga (1993) 16 Cal.App.4th 961, 968.)  Even speech that is "intended to interfere with the performance of an officer's duty," is protected by the First Amendment, "provided no physical interference results."  (Chase C. (2015) 243 Cal.App.4th 107, 115.)  Citizens have a right to protest verbally and challenge law enforcement's actions, but the exercise of this right cannot result in the physical interference with lawful police conduct. Therefore, it is not a violation of section 148 for a suspect merely to challenge your actions ("You need a warrant to be in here"), shout obscenities, throw down an ID, or obey your orders very slowly.  "While the police may resent having abusive language directed at them, they may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment."  (Quiroga (1993) 16 Cal.App.4th 961, 966.)  Example:   A San Diego Sheriff's deputy on foot patrol in Turtle Park was approached by a group of students reporting two high school students who had attempted to sell them drugs in the park.  Within minutes, the deputy was able to locate two minors matching the description in a group with eight other minors.  One of the nonsuspect minors--Chase C.--began telling one suspect not to listen to the deputy and not to obey his orders.  When backup officers handcuffed the remaining minors for safety, Chase continued to protest and told the others not to listen, not to tell the deputies anything, not to tell them "sh*t."  Chase refused to give the deputies his name or his parents' information, stating he was pleading the Fifth.  Chase yelled to the others not to cooperate, but he did not physically resist or obstruct the deputies in the performance of their duties.  HELD:  No section 148 violation. Chase was merely exercising his right to verbally protest.  The detention of the nonsuspect minors was unlawful, so the deputies were not acting in the lawful performance of their duties when Chase attempted to interfere.  And the refusal to identify himself before the booking stage was not grounds for a section 148 charge.  The court stated that Chase did "little more than curse, verbally protest, and delay providing identification."  (Chase C. (2015) 243 Cal.App.4th 107.) There are also restrictions on charging a violation of section 148 when suspects invoke their Fourth Amendment rights.  A refusal to consent to enter a residence, when the only act is the refusal by words or conduct to deny consent, cannot be grounds for a section 148 violation.  (Wetzel (1974) 11 Cal.3d 104.)  Similarly, a refusal to consent to a blood test following an arrest for driving under the influence is not grounds for a section 148 violation because the suspect has a constitutional right to challenge a warrantless search.  (Valencia (2015) 240 Cal.App.4th Supp. 11.)  The court in Valencia also found that the structure of the refusal provisions of Vehicle Code section 23577 precludes a separate violation of section 148. If, however, speech goes beyond criticism and constitutes an attempt to intimidate a suspected victim, then a section 148 violation has occurred because the First Amendment is not a license to intimidate a victim into denying the commission of criminal conduct.  (Green (1997) 51 Cal.App.4th 1433, 1438.)  Further, the First Amendment protects expression that "engages, in some fashion, public dialogue," but it does not protect willful threats to perform illegal acts.  (Iboa (2012) 207 Cal.App.4th 111, 118.) 10.   Resisting Executive Officers (Pen. Code, § 69) Felony or Misdemeanor "Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both such fine and imprisonment."  "Executive officer" includes peace officers.  (Buice (1964) 230 Cal.App.2d 324.) Note that there are two distinct parts of this statute.  The first part concerns the obstruction of justice by attempting to deter officers from performing their duties.  To be found guilty under the first part of the statute, the perpetrator must know that the person he is attempting to deter is an executive officer.  (Atkins (2019) 31 Cal.App.5th 963.) Example:     Suspect who had been calling in threats to a CVS pharmacist who refused to refill his pain medication told the investigating officer, "Hey, you're a f*ckin' dead n*gger if you keep this sh*t up."  This statement constituted a threat of death or bodily harm sufficient to sustain a Penal Code section 69 conviction.  (Orloff (2016) 2 Cal.App.5th 947.) Example:   Twelve firefighters responded to a report of a 2 a.m. fire in a residential backyard.  Iboa, who was sleeping in the yard near the fire, became verbally combative with the firefighters, yelling "to get the f*ck off his property," said he would "show them," said they needed a warrant, paced around with his chest puffed out, clenched his fists, and lifted his shirt to expose his gang tattoos.  HELD:  His threatening speech was intended to, and did, deter the firefighters in the performance of their official duties in violation of Penal Code section 69.  (Iboa (2012) 207 Cal.App.4th 111.) Under the "resisting" part of the statute, "forceful resistance" is required.  (Bernal (2013) 222 Cal.App.4th 512; Rasmussen (2010) 189 Cal.App.4th 1411, 1418.)  Additionally, the officer must be lawfully performing her duties and be engaged in the lawful performance of those duties when the suspect resists or makes a threat to deter in the present, i.e., right now.  (See In re A.L. (2019) 38 Cal.App.5th 15.) However, if the suspect threatens to deter or prevent at some point in the future, a violation occurs regardless of whether you were engaged in the lawful performance of your duties--or were even on duty--at the time the threat was made.  (Manuel G. (1997) 16 Cal.4th 805.) Example:   When officers approached two men and a juvenile subject to a gang injunction on a closed bike path, one of the men pulled a steak knife out of his pocket and dropped it.  One officer collected the knife and placed the man in handcuffs; a second officer conducted a patdown search of Bernal and removed an axe from Bernal's waistband.  When the officer tried to handcuff Bernal, Bernal broke away to try to run.  The officer grabbed onto Bernal's waist and was dragged eight to ten yards down the bike path before they both fell to the ground.  HELD:  Bernal's forceful attempt to escape clearly violated section 69.  (Bernal (2013) 222 Cal.App.4th 512.) Note:   It is not a violation, without more, for someone to take a photograph or make an audio or video recording in a public place or in a place the person has a right to be.  (Pen. Code, § 69, subd. (b).)  A similar amendment was made to Penal Code section 148. Note:   A conviction based on "threatening speech" has been found to be unconstitutional if the speech did not constitute a "true threat."  (Smolkin (2020) 49 Cal.App.5th 183 [defendant's claim that his confinement on parole violations constituted kidnapping of a Russian military operative that would result in death by firing squad for the entire District Attorney's office was clearly "delusional"].) 14 – Juvenile Law III. DETENTION OF JUVENILES Since 1987, major restrictions have existed regarding the circumstances under which minors may be detained or kept at a jail, substation, or other facility besides juvenile hall. Regarding "300's," while they have always had to be detained in facilities separate from "601's" or "602's," they now may not be held "in any building that contains a jail or lockup for the confinement of adults" unless, while in the building, the minor is not permitted to come into contact with adults in custody, and is under the direct and continuous supervision of a peace officer or other child protective agency worker, as specified, or trained volunteer for a maximum of three hours. (Welf. & Inst. Code, § 206.) Regarding "601's" (status offenders), they also may not be detained in any "jail, lockup, juvenile hall, or other secure facility," but rather, if detained, must be referred to a sheltered care facility, crisis resolution home, or a non-secure facility, as specified. (Welf. & Inst. Code, § 207.) Regarding "602's," even they may not be detained in any "jail or lockup." Therefore, you will most commonly take such a minor to juvenile hall or other secure juvenile facility, unless the situation falls within either of two exceptions. Under the first exception, the minor, as young as 14, may be detained "in a jail or other secure facility for the confinement of adults" if: (1) he is alleged to have committed one of a list of designated offenses, has been found unfit to be dealt with as a juvenile, and his case has been transferred to adult court; or (2) he had been charged directly in or transferred to an adult court; and (3) the appropriate court makes a finding that the minor’s further detention in the juvenile hall would endanger the safety of the public or would be detrimental to the other minors there; and (4) contact between the minor and adults in the facility is restricted, as specified; and (5) the minor is adequately supervised. (Welf. & Inst. Code, §§ 207.1, 208.) The second exception permits temporary detention in a "lockup" facility (not a jail) only if the minor is 14 years old or more and you reasonably believe that he or she "presents a serious security risk of harm to self or others." Again, numerous restrictions and conditions apply. These include: - that the temporary detention is for the purpose of investigating the case, facilitating release of the minor to a parent or guardian, or arranging transfer of the minor to an appropriate juvenile facility; - that the detention not exceed six hours unless specified exceptional circumstances exist; - that the minor is told the purpose, expected duration, and six-hour maximum limit of the detention; - that contact between adults and the minor is restricted in accordance with section 208; - that there is adequate supervision of the minor; and - that a log or other written record is maintained showing the offense and other items prescribed in subdivision (d)(1)(f) of section 207.1. (Welf. & Inst. Code, § 207.1.) Note: Failure to comply with these conditions renders a minor's detention unlawful. However, a detention that violates state time limits for detention in an adult lockup facility does not automatically render any confession the minor makes during the detention involuntary and inadmissible. (Thomas (2012) 211 Cal.App.4th 987, 1009-1012.) California has never adopted the federal rule that a confession obtained during an invalid state detention is, by that fact alone, inadmissible. In addition, there is a special exception for suspected DUI offenses. In this situation, you are allowed to take the minor to a "detention facility or jail" for the purpose of "administering an evaluation, test, or chemical test" (see Veh. Code, § 23612) if (1) there is no equipment for administering the test at a juvenile facility within a reasonable distance, (2) the minor is not locked in a cell or room, (3) the minor is under the continuous, personal supervision of a peace officer or employee of the detention facility or jail and does not come into contact with in-custody adults, and (4) the evaluation or test is performed as quickly as possible and the minor is removed from the facility afterwards as quickly as possible so that the minor under no circumstances remains at the facility more than two hours. (Welf. & Inst. Code, § 207.1, subd. (j).)