Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County No. BF116208A, Clarence Westra, Jr., Judge.
Peter Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, Acting P. J.
Defendant Michael B. Burge was convicted of felony evading a police officer and misdemeanor resisting or obstructing a police officer in the performance of the officer’s duties. He appeals, claiming the prosecution relied on protected speech to support his misdemeanor conviction and the trial court erred in failing to give an instruction on mistake of fact. In addition, he asks this court to review the sealed transcript and records from the hearing held pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531. We affirm.
FACTS
On September 15, 2006, Bakersfield police officer Aaron Stringer was on duty. He was driving a distinctively marked patrol vehicle equipped with a working siren and lights. He was wearing a distinctively marked uniform.
At 1:48 a.m. Stringer observed defendant in a parking lot of an apartment complex standing next to his truck. As Stringer pulled into the parking lot, defendant turned toward Stringer, turned back around, jumped in his truck, and backed up at a high rate of speed.
Because of defendant’s reckless driving in the parking lot, Stringer decided to stop defendant. Stringer activated his overhead emergency lights and began following defendant’s truck. Defendant did not stop and then went through a stop sign without stopping. Because defendant failed to stop, Stringer activated his siren. Defendant’s truck accelerated, traveling over the speed limit at 55 miles per hour.
Stringer called for backup and continued to follow defendant. Defendant continued to drive over the speed limit (reaching speeds of up to 90 miles per hour), went through another stop sign, and at one point crossed over into the opposing lanes of traffic.
Eventually defendant pulled his truck to the curb. As Stringer exited his vehicle defendant got out of his truck. Stringer ordered defendant back into his truck for officer safety. Defendant did not comply, put his arms in the air, yelled “fuck you,” and said he was not getting back into his truck. Defendant was ordered to get back into his truck two times but failed to do so.
Officer Matt Peery arrived as a backup officer. Defendant was told to get on the ground. He complied with this order. Defendant was ordered to walk backward toward the officers. While walking backward toward the officers, defendant turned toward the officers, put his arms up in the air, and yelled “fuck you.” Defendant was ordered to go to the ground. Defendant’s hands dropped to his waist, he said “fuck you,” and he took a combative stance. As Peery tried to take defendant to the ground, he pulled away. Peery took defendant to the ground and handcuffed him. Defendant resisted after he was handcuffed. He was yelling obscenities and stiffening his body while being led to the patrol car.
Defense
Brian Michel said he saw defendant drive by in his truck at approximately 30 miles per hour, followed by a police car that had its lights on but did not have the siren on.
Defendant’s father said that he helped his son retrieve his truck from the impound lot. The truck was out of gas and would not start until they put gas into it.
Defendant testified that his truck had been modified, and the sound of his muffler was much deeper. He agreed that he drove the route as testified to by Stringer, but said at most he drove only a little bit over the speed limit. His truck starting missing and he thought he was out of gas. The truck coasted until it came to a stop. The first time he saw a police officer was after he got out of his truck. He did not see the police officer following him. He admitted he got upset with the officers and said to them “what the F you want me to do.” He testified that he was kicked, punched and/or kneed by the officers and during this time his head bounced on the pavement. He testified that he was injured as a result of this encounter.
DISCUSSION
I. Obstruction Conviction Based on Speech
Defendant was convicted in count 2 of a violation of Penal Code section 148, subdivision (a). “‘The legal elements of a violation of section 148, subdivision (a) are as follows: (1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties. [Citations.]’ The offense is a general intent crime, proscribing only the particular act (resist, delay, obstruct) without reference to an intent to do a further act or achieve a future consequence. [Citation.]
All future code references are to the Penal Code unless otherwise noted.
“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. [Citations.] But 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.’ [Citation.]” (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329-1330.)
Defendant contends that the prosecutor suggested to the jury that one basis for finding defendant guilty of a violation of section 148 was when he said “fuck you” to the officers. He argues that this was protected speech and, in addition, was nothing more than a verbal challenge to officers and could not have formed the basis for his conviction. He claims the error was prejudicial because it is not possible to determine if the jury relied on this unconstitutional basis to determine his guilt.
Defendant relies on People v. Quiroga (1993) 16 Cal.App.4th 961 to support his argument. In Quiroga, the defendant was an occupant in an apartment when an officer arrived to investigate a report of a noisy party. When a woman opened the door, the officer saw a man handing what appeared to be a marijuana cigarette to another woman sitting on the floor. The officer entered and asked for the cigarette. Defendant stood up and began walking away. He was ordered to sit down. He argued before complying with the order, telling the officer to get out of the house and that he needed a warrant and a reason to be in the house.
While questioning another occupant of the house, the officer saw defendant, who was still telling the officer to leave, reach between the couch cushions as if he was trying to hide something. The officer asked defendant to put his hands in his lap. Defendant again was uncooperative but finally obeyed the order. Defendant was ordered to stand up; he refused several times and then complied. Defendant was arrested after drugs were found in the area of the couch where he had been sitting. (People v. Quiroga, supra, 16 Cal.App.4th at pp. 964-965.)
Defendant was convicted of violating section 148. He argued that neither his pre-arrest activities nor his post-arrest activities (refusal to identify himself) could be the basis for his conviction. The appellate court agreed that his pre-arrest actions were not sufficient to support his conviction, but his post-arrest activities were.
“We find nothing in appellant’s conduct before his arrest that might justify a charge of violating Penal Code section 148. It is true that he complied slowly with Officer Stefani’s orders, but it surely cannot be supposed that Penal Code section 148 criminalize a person’s failure to respond with alacrity to police orders. Moreover, appellant possessed the right under the First Amendment to dispute Officer Stefani’s actions. ‘[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.’ [Citation.] Indeed, ‘ the 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.’ [Citation.] 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.’ [Citation.]” (People v. Quiroga, supra, 16 Cal.App.4th at p. 966.)
In Muhammed C. v. Superior Court, supra, 95 Cal.App.4th 1325, officers had arrested Robinson and placed him into a patrol car. As the officers attempted to process Robinson’s car, Muhammed walked up to the patrol car and spoke to Robinson through a partially opened window. Muhammed was ordered five times to step away from the patrol vehicle. On the last occasion he raised his palms toward the officers, and when the officer approached the car Muhammed started to walk away. It was found true that he committed a violation of section 148. On appeal he claimed the evidence did not support this finding.
The appellate court disagreed. “Here, a reasonable inference could be drawn that appellant willfully delayed the officers’ performance of duties by refusing the officers’ repeated requests that he step away from the patrol car: three officers ordered appellant five times to step away before appellant complied; they had interrupted processing Robinson’s car to attend to appellant, and Officer Baggett specifically affirmed that the elapsed time had delayed the Robinson investigation.” (Muhammed C. v. Superior Court, supra, 95 Cal.App.4th at p. 1330.) The court rejected Muhammed’s free speech challenge, finding that his verbal conduct was not akin to a “mere verbal challenge to police officers.” (Id. at p. 1331.)
Here, the prosecutor made the following argument to the jury: “He resisted and delayed and obstructed Officer Stringer when he refused his commands to get on the ground. Officer testified Stringer testified he had to do that at least twice. He refused Officer Stringer’s command to get back in the vehicle. That is also resisting. In fact, he told Officer Stringer, fuck you, I’m not getting back in my car. I apologize for the language, but I’m not going to use -- I’m not going to drill it down. That’s what was said. That’s also resisting. That is also obstructing. ¶ He disobeyed the order to walk backwards until cuffed…. ¶ He spun around while walking backwards and said, fuck you guys. That’s what Officer Peery said he did. That’s resisting and delaying Officer Peery. ¶ He raised his fists, he was in a combative stance. When Officer Peery finally put a hand on him, he pulled and twisted away. He struggled while he was on the ground. And he went stiff and they had to hop him along to get him to the back of the police car. ¶ If you believe any one of those events happened beyond a reasonable doubt, any one of those events will satisfy the element that a person willfully resisted, delayed, or obstructed a police officer.”
We find that the prosecutor’s argument regarding defendant stating “fuck you” was coupled with the prosecutor’s argument that defendant refused to get back in the car and his statement alone was not argued as a separate basis for a violation of section 148. Every time defendant used the phrase “fuck you” it was coupled with defiant behavior on his part. He was not merely verbally challenging a police officer nor was he merely challenging police actions in a manner protected as free speech. He was verbally and physically refusing to comply with orders in a very dangerous felony-stop situation. His statements merely emphasized his negative actions and presented a clear picture of a violation of section 148.
Defendant was not convicted based on protected speech or a mere verbal challenge to the officers.
II. Pitchess Review
Defendant filed a Pitchess motion requesting discovery of complaints of dishonesty, lying, and/or acts of moral turpitude involving Officer Stringer and complaints of physically assaultive conduct, beatings, or accusations of using excessive force and violence against Officer Peery.
The People conceded that defendant had made a sufficient showing to justify an in camera review of citizen complaints for excessive force against Officer Peery and citizen complaints for dishonesty against Officer Stringer. The People requested that discovery be limited to reports made within the past five years.
The court held an in camera hearing. At the hearing, the personnel files of Stringer and Peery were brought into court. After examining the files, the court ordered disclosure of information of several complaints relating to Peery. The court found there was nothing in Stringer’s file that warranted disclosure.
The record on appeal has been augmented to include a transcript of the in camera hearing and documents reviewed at the hearing. All of these documents have been filed under seal and the parties have not been provided copies.
For over a quarter of a century “our trial courts have entertained what have become known as Pitchess motions, screening law enforcement personnel files in camera for evidence that may be relevant to a criminal defendant’s defense.” (People v. Mooc (2001) 26 Cal.4th 1216, 1225.)
Because neither defendant nor respondent has access to the transcript of this in camera hearing or the documents supplied at this hearing, they have requested this court to independently review the records to determine whether the trial court had before it all documents that needed to be reviewed and whether it disclosed all relevant documents.
We have reviewed the entire personnel files of Peery and Stringer. Because the trial court reviewed the entire file of both officers, there is no question the trial court had before it all documents that needed to be reviewed. Other than the information the trial court already ordered disclosed relating to Peery, we find the files do not contain any information subject to disclosure under Pitchess.
III. Mistake-of-Fact Jury Instruction
Defendant contends that as to the willful evasion conviction the trial court erred in failing to give a jury instruction on the mistake-of-fact defense. One of his defenses at trial to this count was that he did not see the lights or hear the siren and did not know he was being pursued. He claims that without this instruction the jury did not have the means to evaluate whether the tinted windows prevented him from seeing the lights on Stringer’s vehicle or whether his muffler prevented him from hearing the siren.
“Error in failing to instruct on the mistake-of-fact defense is subject to the harmless error test set forth in People v. Watson (1956) 46 Cal.2d 818, 836.” (People v. Russell (2006) 144 Cal.App.4th 1415, 1431.)
The error here was harmless. The jury was instructed that defendant had to have seen or reasonably should have seen the red lamp in order to be convicted of willful evasion of a peace officer. This instruction clearly set forth the defense that if defendant did not see or could not reasonably have seen the red lamp he would be not guilty of willful evasion. The failure to instruct on mistake of fact did not remove defendant’s defense from the case and was adequately covered by the instructions as given.
In addition, the jury was instructed that it must find defendant willfully fled or attempted to elude a pursuing peace officer and did so with the specific intent to evade the peace officer before it could convict defendant of willful evasion. Defendant’s defense was that he had no idea he was being pursued and, as part of this defense, that he did not see the red lights or hear the siren. The jury clearly rejected defendant’s claim that he had no idea he was being pursued or else it would not have found that defendant had the specific intent to evade the peace officer. The jury was repeatedly told that there must be a union of act and specific intent and the People must prove this beyond a reasonable doubt. Having resolved the credibility determination in favor of the officers on this question, there is no scenario under which the jury could have found that defendant had the specific intent to evade but did not see the red lights or hear the siren.
Defendant has not shown prejudice from the failure to give the mistake of fact instruction.
DISPOSITION
The judgment is affirmed.
WE CONCUR: GOMES, J. DAWSON, J.