In re J.S.

Filed 7/6/07 In re J.S. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Merced County. Thomas S. Burr, Commissioner.

Sylvia Whatley Beckham, 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, Stan Cross and Susan Rankin Bunting, Deputy Attorneys General, for Plaintiff and Respondent.

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At a contested jurisdictional hearing held on September 28, 2006,^[1]the juvenile court found true the allegations that 12-year-old J.S. committed battery (Pen. Code,  242),^[2]made a harassing telephone call ( 653m, subd. (a)), attempted by means of threats to deter an officer from performing her duties and resisted the officer by force ( 69), and resisted, delayed or obstructed an officer ( 148, subd. (a)). The court placed J.S. on probation.

On appeal, J.S. contends there was insufficient evidence to support the juvenile courts findings that she violated sections 69 and 148. We affirm the courts findings.

FACTS

On August 8, J.S. and her brother got into an argument with their neighbor. J.S. threw an egg at the neighbor and hit her in the head or body. The neighbor felt threatened and told them she was going to call the police. They said they did not care, but if they went to juvenile hall, they would get her when they returned.

On August 25, Officer Gutierrez went to a womans house to talk to her daughter about a fight she had gotten into with J.S.s sister. The woman told her daughter to go outside and tell the officer what had happened. While the officer was speaking with the daughter, the womans son answered the telephone. It was a call from J.S.s house. A male was yelling profanities.

In the past, the womans children had been friends with J.S. and her siblings, but that ended a long time ago. Now, J.S. and her siblings repeatedly called the womans house to yell profanities.

The womans son came outside and passed the telephone to the officer, who heard a female yelling profanities. The officer said, Who is this[?] and the caller said, You know who this is, bitch. The officer recognized the caller as J.S. because they had had numerous contacts; the officer had contact with J.S.s family about three times per week for various incidents. The officer could hear male voices yelling profanities in the background. The officer identified herself as a police officer to J.S., who then said, Fuck you, bitch. The officer identified herself by name and J.S. said, Fuck you, bitch, fuck the police. The woman reported to the officer that her family continually received these harassing calls from J.S. and her family. The officer advised J.S. to stop making the calls and told her the woman wanted to press charges against her.

Officer Gutierrez then went to J.S.s house. She knocked and J.S. and her two brothers answered the door. They stood inside while the officer spoke to them from outside. The officer asked if their mother was there and they said they were the only ones at home. The officer said she had been on the other end of the earlier telephone call and she recognized J.S.s voice. J.S. said it was not her, although she might have been in the background. The officer considered J.S.s response to be evasive. Her brother said it might have been them in the background. The officer told J.S. she needed to stop making the harassing calls and the woman wanted to press charges. J.S. said, I dont care. I dont give a fuck. She called the officer a crooked cop. She told the officer she thought she was a bad ass because she wore a gun and a badge, and she was nothing without them. The officer responded that she was not arrogant or cocky and that she only carried those items while she was on duty. J.S. said, Let me see your gun and Ill fucking shoot your head off. The officer took J.S.s statements as an attack, a challenge, and an attempt to threaten and scare her. The officer informed J.S. that she should not speak that way to anyone, especially a police officer. The officer left, contacted J.S.s probation officer and filed a report on the incident.

Defense Evidence

J.S. testified that she knew Officer Gutierrez from around town. She had never had any problems with the officer in the past. J.S. denied speaking to the officer on the telephone on August 25. She said she was not even present during the call and she did not hear it.

J.S. explained that when Officer Gutierrez came to her house on August 25, the officer threatened to file a complaint about J.S.s telephone calls and threatened to call Child Protective Services (CPS) on J.S.s mother. J.S. got mad and told the officer she was going to get a gun and shoot her. J.S. was also angry because she had not made the telephone calls.

J.S.s brother testified that he, J.S. and their brother answered the door when Officer Gutierrez came to the house on August 25. J.S.s brother heard the officer say she was going to take off her gun and badge and fight J.S. outside. The officer appeared to be angry, but she did not do anything. She just said she was going to take the children to CPS. J.S. did not appear to be upset.

DISCUSSION

I. Standard of Review

Our review is governed by the same principles applicable to adult criminal appeals. (In re Roderick P. (1972) 7 Cal.3d 801, 809.) Our function is to determine whether the record contains any substantial evidence tending to support the finding of the trier of fact, and in considering this question we must view this evidence in the light most favorable to the finding. (Id. at p. 808.) Substantial evidence is evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the appellant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The test is not whether guilt is established beyond a reasonable doubt, but whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319.)

II. Sufficiency of the Evidence -- Attempting to Deter Officer from Duties

J.S. contends the evidence was insufficient to support the finding that she attempted by means of a threat to deter the officer from performing her duties on August 25. J.S. argues there was no evidence she had the specific intent to deter the officer, that she had the present ability to carry out the threat, or that the officer could reasonably fear retaliatory action based on the threat.

Section 69 provides: 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 . Thus, one way the statute can be violated is by attempting, with a threat, to deter or prevent an officer from performing his or her duties. (In re Manuel G. (1997) 16 Cal.4th 805, 814.) To prove this violation, each of the following elements must be proved: (1) a person willfully and unlawfully attempted to deter or prevent an executive officer from performing any duty imposed upon that officer by law and (2) the attempt was accomplished by means of a threat. (People v. Belmares (2003) 106 Cal.App.4th 19, 24, disapproved on another ground by People v. Reed (2006) 38 Cal.4th 1224, 1228.)

The essential element of Penal Code section 69 is a threat or force or violence. [Citation.] The surrounding circumstances may establish the specific intent to interfere with the officers performance of his duties. [Citation.] (In re M. L. B. (1980) 110 Cal.App.3d 501, 503.) A threat, unaccompanied by any physical force, may support a conviction for the first type of offense under section 69. [Citation.] To avoid the risk of punishing protected First Amendment speech, however, the term threat has been limited to mean athreat of unlawful violence used in an attempt to deter the officer. [Citations.] (In re Manuel G., supra, 16 Cal.4th at pp. 814-815; In re M.S. (1995)10 Cal.4th 698, 714 [violence and threats of violence fall outside the protection of the First Amendment because they coerce by unlawful conduct, rather than persuade by expression].) [A] defendants threat may violate section 69 even if the officer who is the object of the threat does not in fact fear that it will be carried out. The statute requires only that the defendant make the threat for the purpose of inducing such fear, and to thereby deter or prevent the threatened officer from performing any legally imposed duty. [Citation.] (People v. Hines (1997) 15 Cal.4th 997, 1061, fn. 15.) [A] present ability to carry out a threat is not required if the target of the threat could reasonably fear retaliatory action on some future occasion. (Id. at p. 1060.)

The evidence here established, even according to J.S. herself, that she threatened to shoot or kill Officer Gutierrez because she was angry that the officer was going to file a complaint about the harassing telephone calls and contact CPS about her mother. J.S. said, Let me see your gun and Ill fucking shoot your head off. J.S. said she was going to get a gun and shoot the officer. Officer Gutierrez believed J.S. was trying to threaten and frighten her. Clearly, J.S. made the threat for the purpose of frightening the officer and thereby prevent her from investigating further and from reporting the events to the police and CPS. We disagree that J.S. lacked the present ability to carry out the threat. She stated she would get a gun, presumably inside the house, upon whose threshold she was standing. Execution of her threat did not require that the officer hand over her gun, as J.S. argues. And, sadly, in light of all the circumstances, J.S.s tender age does not convince us she was incapable of shooting the officer. Furthermore, the officer reasonably could have feared retaliatory action in the future based on J.S.s statements. We conclude there was ample evidence to support the courts finding that J.S. threatened Officer Gutierrez in a willful attempt to deter her from performing her duties.

III. Sufficiency of the Evidence -- Obstruction of Officer

J.S. also contends the evidence was insufficient to support the finding that she violated section 148 on August 25, because she took no physical action to resist, delay or obstruct the officer. She points out that she did not ignore the officers knock, slam the door on the officer, attempt to flee or refuse to respond to the officers questions or demands. J.S. argues that although the officer believed she was being evasive, she did not disobey the officer.

The legal elements of a violation of section 148, subdivision (a) are as follows: (1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties. [Citations.] [Citation.] The offense is a general intent crime, proscribing only the particular act (resist, delay, obstruct) without reference to an intent to do a further act or achieve a future consequence. [Citation.] (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329.)

Section 148 is usually applied to the physical acts of a defendant (In re Andre P. (1991) 226 Cal.App.3d 1164, 1175), such as physical resistance and hiding or fleeing from a police officer (e.g., People v. Allen (1980) 109 Cal.App.3d 981, 986-987; In re Gregory S. (1980) 112 Cal.App.3d 764), but speech alone can violate the statute. The statutes application is not limited to nonverbal conduct involving flight or forcible interference with an officers activities. No decision has interpreted the statute to apply only to physical acts, and the statutory language does not suggest such a limitation. [Citation.] (People v. Seijas (2005) 36 Cal.4th 291, 306 [obstruction of investigation by causing police to focus on and arrest the wrong person], quoting People v. Quiroga (1993) 16 Cal.App.4th 961, 968.) Although mere criticism and even profanities directed at a police officer do not fall within section 148 (City of Houston v. Hill (1987) 482 U.S. 451, 461 [First Amendment protects a significant amount of verbal criticism and challenge directed at police officers]), threats of violence, such as those made by J.S. here, do indeed (In re M.S., supra, 10 Cal.4th at p. 714). In this case, the juvenile court reasonably could have inferred that in threatening Officer Gutierrez, J.S. obstructed the officers investigation and her reporting of the events. Again, substantial evidence supported the juvenile courts finding.

DISPOSITION

The juvenile courts findings are affirmed.

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^* Before Vartabedian, Acting P.J., Harris, J. and Kane, J.

^[1] All dates refer to 2006 unless otherwise noted.

^[2] All statutory references are to the Penal Code unless otherwise noted.