Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Cruz County Super. Ct. No. JU20820
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
Brett M. appeals from the dispositional order in this juvenile proceeding. Following a contested jurisdictional hearing, the juvenile court sustained the allegation that Brett had willfully resisted, delayed, or obstructed a police officer from performing his official duties (Pen. Code, § 148, subd. (a)(1); count 1). The court also sustained an allegation for simple battery (§ 242; count 2), after amending on its own motion the original count for battery on a police officer in the performance of his duties (§ 243, subd. (b)). A third count for assault while on school property (§ 241.2, subd. (a); count 3), to which Brett was permitted to withdraw his earlier admission, was dismissed but considered at disposition, pursuant to agreement between the parties.
All further unspecified statutory references are to the Penal Code.
At disposition, Brett was continued as a ward of the court under the care, custody, and control of probation for placement in the home of his mother. He was also ordered to complete 25 hours of community service, pay a $25.00 restitution fine, stay away from the victim named in count 3 of the petition, stay away from Watsonville High School unless he had an official appointment at the school, and only have respectful contact with Watsonville Police Officer Bryan Fuentez. He was also given 54 days credit for time served in juvenile hall.
On appeal, Brett challenges the sufficiency of the evidence to support the court’s finding that he resisted, delayed, or obstructed a police officer from performing his official duties, particularly when he refused to cooperate with the taking of a booking photograph. For reasons that we will explain, we find the evidence sufficient and, therefore, we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
The Welfare and Institutions Code Section 602 Petition
On August 28, 2006, the People filed a petition under Welfare and Institutions Code section 602, alleging 16-year-old Brett M., on August 25, 2006, willfully resisted, delayed, and obstructed Officer Fuentez, who was attempting to discharge and was discharging his official duties (§ 148, subd. (a)(1); count 1), a misdemeanor, and willfully used force and violence upon Officer Fuentez when Brett knew or should have known the officer was in the performance of his duties (§ 243, subd. (b); count 2), a misdemeanor. The People also included a supplemental petition for more restrictive placement (Welf. & Inst. Code § 777, subd. (a)), alleging Brett violated a prior court order of August 16, 2006, by failing to obey all laws.
On August 29, 2006, Brett denied both counts. After the court ordered that he be detained, with temporary care and custody vested with probation pending disposition, Brett was placed on home supervision.
While the matter was pending in juvenile court, Brett was involved in an incident with a minor at Watsonville High School on October 5, 2006. The court found Brett in violation of home supervision and ordered him into the custody of juvenile hall on October 6, 2006. Thereafter, on October 10, 2006, the People filed an amended petition, which added a third count for assault while on school property (§ 241.2, subd. (a)), a misdemeanor, based on the allegation that Brett attempted to commit a violent injury on the minor while on Watsonville High School property. On October 12, 2006, Brett denied the amended petition and remained in juvenile hall.
The Jurisdictional Hearing
At the beginning of the jurisdictional hearing on November 2, 2006, the People indicated that an offer had been made whereby Brett would admit to count 3, assault while on school property. If the remaining counts for obstruction (count 1) and battery on an officer in the performance of his duties (count 2) were sustained, then the People would allow Brett to vacate the admission to count 3 and would seek to dismiss that count, but allow it to be considered at disposition. If, on the other hand, counts 1 and 2 were not sustained, then the case would proceed to disposition on count 3. Brett agreed to the offer and admitted the allegation in count 3. The court found a factual basis for the admission after questioning Brett about the incident at Watsonville High School. The jurisdictional hearing then proceeded as to counts 1 and 2.
The evidence at the jurisdictional hearing included the testimony of Brett, three police officers, three other witnesses to the incident in question, and a nurse from juvenile hall.
The Witness Testimony
Initial Search of Brett
On August 25, 2006, Watsonville Police Officers Henry Robles and Bryan Fuentez were working with a county joint gang task force. As they were driving by a building on East Beach Street in Watsonville, Officers Robles and Fuentez saw a group of young people sitting on its front steps. The officers were monitoring the area, which had been brought to their attention as a “gang-troubled” area. Present in the group were Brett, his brother, and at least three other individuals. The officers recognized one of these other three individuals as an identified gang member. The officers, who were in uniform but driving an unmarked patrol car, parked the car and approached the group.
Officer Fuentez initiated a conversation with the group, during which time the group indicated they were “kicking back” and “waiting for a friend.” Officer Fuentez asked whether anyone was on probation, and Brett and his brother gave affirmative responses. Brett also gave his name to Officer Fuentez.
At Officer Fuentez’s request, Brett agreed to step down, so that he could be patted for weapons. Brett was placed in a “standing modified stance,” so that he was facing away from Officer Fuentez, his hands behind his head, and his feet spread apart. As explained by Officer Robles, “Officers are trained to tilt the individual, to rock him back a little bit, for officer safety, to keep that person off balance.”
As Officer Fuentez was searching Brett, Officer Fuentez noticed a tattoo on Brett’s left leg, near his ankle. The tattoo was partially covered by Brett’s sock.
Officer Fuentez testified that he wanted to see the tattoo, because the area of Beach Street where the officers encountered Brett was known for gang activity (such as gang fights and complaints about gangs in the area), Brett was in the presence of a known gang member, the officer had heard of Brett from other officers, and gang members often wear tattoos signifying their membership. Officer Fuentez acknowledged that he did not know whether Brett had any gang terms as part of his probation, nor did he call to inquire as to the search terms of Brett’s probation. Officer Fuentez testified that he was going to do a “standard pat-down search” to make sure Brett did not have any weapons.
The situation was calm and Brett was cooperative up to this point. However, Officer Fuentez testified that when he attempted to push down Brett’s sock to read the tattoo, Brett said, “What the fuck?” and “kicked back, kicking [Officer Fuentez’s] hand out of the way.” Officer Fuentez “told him to relax, that [he] just wanted to see the tattoo.” When Officer Fuentez attempted to push the sock down again, Brett “got loose” from the officer’s grasp. Officer Fuentez testified that Brett “spun around” to face him, hitting the officer’s shoulder with his right elbow or wrist as he turned. Officer Fuentez “grabbed Brett by his head to try and take him down on the ground.” Officer Fuentez testified that Brett was trying to grab the officer’s legs in an attempt to take him to the ground. During this time, the rest of the group that was with Brett started yelling and cussing.
Officer Fuentez was unable to get Brett to the ground, so he yelled to Officer Robles, who assisted by grabbing Brett. Officer Fuentez then let go of Brett and pulled out his Taser. Officer Robles testified that the rest of the group at the scene became alarmed by the Taser and began yelling at Brett, “Hey don’t do that. Get down on the ground.” Officer Robles was able to get Brett to the ground, and Brett’s hands were spread out and visible to the officers. Consequently, Officer Fuentez did not “tase” Brett.
Officer Fuentez eventually put the Taser away, handcuffed Brett, and stood him up. Officer Fuentez testified that he never saw Brett’s tattoo.
Brett’s testimony presented a different picture of events. Brett denied kicking any officer. Brett testified that he told Officer Fuentez that he had a tattoo, and Officer Fuentez looked at the tattoo “[a]bout four times.” Brett displayed the tattoo during the jurisdictional hearing. The tattoo said in blue script, “Cassandra,” which is Brett’s sister’s name.
Brett testified that he began to have problems with his balance when Officer Fuentez “went lower” during the search, because Officer Fuentez was pulling on Brett’s hands, which were at Brett’s back. When Officer Fuentez was examining his tattoo, Brett testified that he turned his foot “slightly” so he “could get some more balance and so [Officer Fuentez] could read it more.” Brett testified that he “was off balance” and “kind of leaning over, stumbling to regain balance.” Brett testified that Officer Fuentez looked at the tattoo “for a little longer” and Brett “turned a little more,” whereupon Officer Fuentez “tried to sweep [Brett] from [his] feet” by using “his leg to try to kick [Brett’s] feet out from under [him].” The maneuver by Officer Fuentez was unsuccessful, because Brett’s “feet were spread wide apart.” Brett testified that Officer Fuentez jumped on his back and “around” his neck, while Brett “tried to stay balanced” and not fall “face first on the cement.” Eventually Officer Robles “came in” to get Brett, and Officer Fuentez “backed away to pull out his Taser.” Brett testified that at this point, while no one was on him, he went down to the ground and put his face on the cement. Brett heard others shouting that the officer had a Taser although Brett never saw it. Brett testified that after he was handcuffed, Officer Fuentez picked him up “[b]y the handcuffs in between the chain.”
Subsequent Search of Brett at or near Patrol Car
Officer Fuentez then walked Brett to the patrol car. During this time, Brett was cussing at Officer Fuentez. At the patrol car, Officer Fuentez testified that he conducted a secondary search, since he had not completed the first search and it was still unknown whether Brett had any weapons on him. Officer Fuentez had Brett “spread his legs, and . . . searched down the inside of his leg, his pocket, his belt line, and his sweater” before putting Brett in the car. Officer Fuentez did not find any weapons or contraband.
Officer Fuentez then opened the car door to the backseat on the driver’s side of the car and told Brett to “Get in the car.” Brett responded “Fuck you.” Officer Fuentez testified that when he tried to push Brett in the car, Brett spit in his face. Officer Fuentez then grabbed Brett “by the front of his shirt and shove[d] him in the car and close[d] the door.” After the door was closed, Officer Fuentez heard Brett cussing and yelling.
Officer Fuentez testified that additional officers were on the scene by this time (he called for assistance during the struggle with Brett) and were interviewing the rest of the group. Officer Fuentez went to find out whether he “could do anything with the group, but it seemed to be taken care of.” Officer Fuentez testified that he went back to the patrol car, opened the door on the passenger’s side, and told Brett that all he “wanted to do was read his tattoo.” Officer Fuentez explained that he opened the door on the passenger’s side, rather than on the driver’s side where Brett was sitting in the backseat, to increase his distance from Brett so he would not be spit on again.
In contrast to this testimony by Officer Fuentez, Brett denied spitting on any officer. Brett also testified that Officer Fuentez began searching him as they were walking to the patrol car. Brett testified that Officer Fuentez had “one hand on the cuffs and the other arm going around.” Brett testified that he was wearing underpants, basketball shorts, and pants, and that Officer Fuentez put his hand in Brett’s underpants as they were walking to the car, and removed his hand before they reached the car. When questioned later by the court, Brett also testified that Officer Fuentez touched his crotch when they were walking to the patrol car. Brett acknowledged that during the time he was walking with Officer Fuentez, there were “[q]uite a few” people around.
Brett testified that he was searched again at the patrol car and that Officer Fuentez had his hand between the underwear and the basketball shorts and “[t]ried to” insert his fingers into Brett’s rectum. Brett testified that he called out “rape” four or five times. Brett testified that Officer Fuentez asked in response whether he wanted “to catch another charge.”
When he was searched at the car, Brett testified he was leaning against the back door on the driver’s side of the car. Brett testified that as he was shoved into the patrol car, the top of his head hit the doorframe.
After looking out the window and seeing his brother being searched by another officer, Brett testified that he heard the “same door that [he] was pushed into reopened.” Brett testified that Officer Fuentez “leaned in” and hit him on his face “about half a dozen times” with one hand. Officer Fuentez was then pulled out of the car by another officer, whom Brett did not see. Brett testified “there [were] a lot of people around. . . .”
Brett testified that he was bleeding around his neck, face, and chest. Brett did not receive any medical treatment for his injuries, nor did he ask the police to take him to the hospital. According to the testimony of Kim Chavez, a nurse from juvenile hall, juveniles see a nurse after they are booked in. Ms. Chavez found notations made on August 26, 2006, by a nurse, Judith Acosta, in Brett’s records that indicated he had “scratches on his neck and upper chest, both wrists were red and the left side of his face and eyebrow was scratched.” Brett was not sent to the hospital nor did he receive treatment, according to Ms. Chavez. Admitted into evidence were photographs of Brett taken at juvenile hall on August 26, 2006. Brett testified that the injuries he suffered, which are apparently shown in the photographs, were caused by Officer Fuentez in the patrol car.
The photographs are not part of the record on appeal.
Brett admitted using vulgar language with the officers on the day of the incident, including the “F word a lot” and calling them “crooked cops” and “dicks.”
Officer Fuentez denied searching Brett as they walked back to the patrol car, denied repeatedly touching Brett’s genitals, denied inserting his hands into Brett’s underpants and touching him, and denied punching him in the face five or six times.
Besides hearing testimony from Brett and three of the police officers who were on the scene (including Officer Fuentez), the court also heard testimony from an 11-year-old girl and her mother. Both lived near the scene of the incident and are the sister and mother, respectively, of the identified gang member who was present at the scene. The sister and mother were walking to get a rental movie when they witnessed the incident, at least from the point when Brett was on the ground. In addition, a female who was with the group sitting on the steps, also testified. The testimony by these three individuals supported some of Brett’s testimony and was inconsistent with some of his testimony.
Booking Process
Brett was subsequently taken to the police department, where Officer Fuentez began the booking process. As part of the process, an individual’s information is input into a field arrest report and a photograph is taken. During the process, Brett was uncooperative and cussing. He initially provided “a little bit of information,” but then stopped and said “I’ve been here before. Figure it out.” Officer Fuentez looked up Brett’s record, and got his name and date of birth.
Brett’s brother, who had been arrested by Officer Jose Barrera for a probation violation and brought to the police station, was uncooperative as well. Both Brett and his brother were “boisterous, very rude, [and] using a lot of profanity.” Officer Barrera testified that Brett’s behavior made “it difficult trying to book him.” Officer Barrera testified that Brett “was antagonistic, loud, boisterous” and that “[i]t became even worse when his brother was brought into the booking room.” Officer Robles admitted they “made the mistake of seating the two of them side by side on a bench.”
When it was time to take Brett’s photograph, Officer Fuentez asked Officer Barrera, who was near Brett, to stand Brett up so he could be photographed. Officer Barrera unlocked Brett’s handcuffs from the rail of the bench where Brett was sitting. Brett was chained to the bench because of his behavior. Officer Barrera asked Brett to stand up, but he refused. Because Brett’s brother was “egging” on Brett not to stand up, Brett’s brother had to be seated someplace else. Brett then became “combative.” According to Officer Barrera, Brett “stood up and started yelling at the top of his lungs. His body became really stiff. . . . I told him to sit down. He wasn’t sitting down. He just started yelling at the officer who removed his brother from where he was at, . . . He was just not cooperating whatsoever, making it – something small into something big. Something that extreme shouldn’t have happened.”
Officer Fuentez similarly testified that when Brett stood up, he started cussing and “got in [the officer’s] face.” Officer Fuentez testified that they knew at this point that “this was getting out of control.” Officer Fuentez testified: “There was no way we were going to be able to take his picture without a fight, so we chose not to take a picture.” Thus, Officer Fuentez was able to complete the booking paperwork but was not able to take a photograph of Brett. Brett and his brother were eventually taken to juvenile hall.
At some point during the day of incident, Officer Barrera made a comment to another officer in connection with telephoning Brett’s mother, according to Brett’s testimony. Brett testified that “Officer Barrera said you’re going to get an earful from that bitch.”
The Juvenile Court’s Ruling
The court heard testimony over the course of three days. On November 6, 2006, the court issued its ruling. Regarding count 2 for battery on a police officer in the performance of his duties, the court found that Brett had battered Officer Fuentez by kicking at him and later spitting on him. However, the court stated that it had a reasonable doubt as to whether Officer Fuentez was acting in the lawful performance of his duties when Brett engaged in these acts. The court explained that there was an issue as to the lawfulness of the search: “I think I could find that Brett consented to the search. However, at one point, even by [Officer Fuentez’s] testimony, he did not consent any longer, and that was to search his tattoo. He does not have any condition that authorizes a search of his tattoo. And at that point, . . . I have a reasonable doubt as to whether or not that was a lawful search for that one. On that basis, I have a doubt as to that element.” Consequently, the court sustained an allegation for simple battery (§ 242), after amending on its own motion the original count for battery on a police officer in the performance of his duties (§ 243, subd. (b)).
The court also indicated that it had a reasonable doubt as to whether Officer Fuentez inappropriately “fondled” Brett and whether Officer Fuentez punched Brett in the patrol car. The court explained: “[W]hile I could not at all convict [Officer Fuentez] of battery on [Brett], the witnesses create a reasonable doubt, in my mind, with regard to what happened in the patrol car. I don’t know what happened to him. I don’t necessarily have all the witnesses. But some of the witnesses were quite credible, in my mind. So I have a reasonable doubt as to what happened there.”
Regarding count 1 for willfully resisting, delaying, or obstructing a police officer from performing his official duties (§ 148, subd. (a)(1)), the court stated: “[T]here were such a series of events that occurred, that I could sort of pick and choose from a great many. I do find that Brett was resisting, delaying or obstructing Officer Fuente[z]. I don’t believe it’s the law – and I could be wrong – I guess we’ll find out if somebody appeals it – that the mere fact that an officer may not have been acting in the lawful performance of his duties at some point during the incident doesn’t mean forever thereafter every encounter that the two have for the rest of the day or week or whatever is an unlawful conduct. [¶] So I’ll find that Brett, at a very minimum, at the police station resisted, delayed or obstructed the officer in the performance of his duties by his failure to cooperate with the booking process. He wouldn’t even stand up to get his photo taken. So I’m going to sustain the petition as to Count One.”
Lastly, the court indicated its uncertainty as to how its ruling on counts 1 and 2 might impact the parties’ agreement regarding count 3 for assault while on school property (§ 241.2, subd. (a)). Because the prosecutor who was present for the court’s ruling was unaware of the agreement that had been made earlier by the original prosecutor, the court continued the matter.
Brett was placed on electronic monitoring.
The Dispositional Hearing
The dispositional hearing was held on November 28, 2006. At the beginning of the hearing, based on the prior agreement between the People and Brett, the court allowed Brett to withdraw his admission to count 3, and dismissed the count but considered it for disposition. The court then ordered that Brett continue as a ward of the court under the care, custody, and control of probation for placement in his mother’s home. He was ordered to complete 25 hours of community service, pay a $25.00 restitution fine, stay away from the victim named in count 3, stay away from Watsonville High School unless he had an official appointment at the school, and only have respectful contact with Officer Fuentez. He was also ordered to serve 54 days in custody, but given credit for 54 days already served. Prior orders of the court, not inconsistent with these orders, were to remain in full force and effect. Brett was released from electronic monitoring.
III. DISCUSSION
Brett filed a timely appeal from the dispositional order entered on November 28, 2006. Brett appeals on the ground that the evidence was insufficient to support the finding that he willfully resisted, delayed, or obstructed a police officer from performing his official duties (§ 148, subd. (a)(1); count 1). We first set forth the standard of review and then we address the merits of Brett’s appeal.
The Standard of Review
The standard of proof in juvenile court proceedings involving criminal activity is the same as in adult criminal trials. (In re Winship (1970) 397 U.S. 358, 368.) Thus, the People must prove beyond a reasonable doubt that the minor committed the alleged offenses. (See In re Roderick P. (1972) 7 Cal.3d 801, 808-809.)
Given the same standard of proof, the principles of appellate review which apply in criminal trials “are applicable to a review on appeal of the sufficiency of the evidence to support a finding in a juvenile proceeding that the minor violated a criminal statute.” (In re Roderick P., supra, 7 Cal.3d at p. 809.) In this regard, our review is circumscribed by the substantial evidence standard of review. “The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]” (People v. Jones (1990) 51 Cal.3d 294, 314; accord People v. Boyer (2006) 38 Cal.4th 412, 480.)
Substantial Evidence Supports the Court’s Findings
Section 148, subdivision (a)(1), states in relevant part that “[e]very person who willfully resists, delays, or obstructs any . . . peace officer . . . in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed . . .” is guilty of a misdemeanor. (See In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329.) “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.” (Ibid.) To establish a violation of section 148, subdivision (a)(1), the following must be shown: “ ‘(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.’ ” (In re Muhammed C., supra, at p. 1329, quoting People v. Simons (1996) 42 Cal.App.4th 1100, 1108-1109.)
The 1997 statutory amendment designated the then-existing text of subdivision (a) of Penal Code section 148 as subdivision (a)(1) and made other changes not relevant here. (Stats. 1997, ch. 464, § 1.)
“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. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1217.) ‘The rule flows from the premise that because an officer has no duty to take illegal action, he or she is not engaged in “duties,” for purposes of an offense defined in such terms, if the officer’s conduct is unlawful. [Citations.]’ [Citation.]” (People v. Simons, supra, 42 Cal.App.4th at p. 1109, fn. omitted.)
Brett’s Conduct During the Booking Process
The juvenile court found that Brett resisted, delayed, or obstructed an officer in the performance of the officer’s duties “by his failure to cooperate with the booking process.” The court stated that Brett “wouldn’t even stand up to get his photo taken.” On appeal, Brett contends: (1) “The purpose of the booking process is essentially one of identification,” and he “gave all necessary identifying information” to the police; (2) “Even if [he] had refused to give any identifying information, such refusal cannot constitute a violation of section 148”; and (3) his conduct during booking did not constitute resistance, delay, or obstruction under section 148.
Brett and the People also address in their respective briefs whether other conduct by Brett, such as Brett kicking Officer Fuentez’s hand to prevent him from seeing the tattoo and Brett spitting on Officer Fuentez when Brett was being placed in the patrol car, are sufficient to sustain the finding by the court. We do not address the parties’ arguments regarding evidence concerning these other incidents, because the juvenile court specifically identified Brett’s failure to cooperate in the booking photograph, and because we conclude that the evidence regarding that incident is sufficient to support the court’s finding that Brett resisted, delayed, or obstructed an officer in the performance of the officer’s duties.
With respect to Brett’s first contention that he provided the necessary identifying information, the evidence established that Brett provided his name and the fact that he was on probation when Officer Fuentez initially made contact with the group on the stairs. Officer Fuentez also testified that at the police department, Brett “started off providing a little bit of information, and then it just cut off. He said ‘. . . I’ve been here before. Figure it out.’ ” Officer Fuentez testified that he was able to “look up [Brett’s] record” and “get his name, DOB, and everything.” On appeal, Brett acknowledges his “lack of cooperation” prevented the officers from taking his photograph, but he contends “[t]he primary purpose of a booking photograph is to assist with identification[]” and “[t]hat identification was already achieved.”
We find Brett’s first contention unpersuasive. Section 7, subdivision 21 states: “To ‘book’ signifies the recordation of an arrest in official police records, and the taking by the police of fingerprints and photographs of the person arrested, or any of these acts following an arrest.” As noted by the California Supreme Court: “The booking procedure, as defined by statute (Pen. Code, § 7, subd. 21), has been described as ‘essentially a clerical process.’ (Kamisar et al., Modern Criminal Procedure (1974) p. 6.)” (People v. Rucker (1980) 26 Cal.3d 368, 387.) Regarding photographs in particular, the California Supreme Court has noted: “The taking of a photograph during the booking process is standard police procedure (Pen. Code, § 7, subd. 21), bearing no relationship to the purpose or validity of the arrest or detention. Commonly known as ‘mug shots,’ the photos are kept in permanent files regardless of the eventual disposition of the case; indeed, thousands of persons ultimately found to be entirely innocent undoubtedly have their photographs, as well as fingerprints, on record with law enforcement agencies. [Citations.]” (People v. McInnis (1972) 6 Cal.3d 821, 825-826.)
The booking interview has been described as “an indispensable procedure in the efficient administration of justice. [Citations.] Without knowing the identity of a suspect, it is impossible to arrange for bail or to conduct an arraignment. More generally, ‘[t]he regular and routine processing of individuals who have been arrested for suspected criminal conduct necessitates that the police obtain information to confirm the identity of the suspect, to provide for medical care if such is required, to identify next of kin in the event of an emergency, and to accomplish various other valid police functions directly related to booking.’ [Citation.]” (People v. Quiroga (1993) 16 Cal.App.4th 961, 971 (Quiroga).)
Here, Brett essentially argues that his cooperation with part of the booking process precludes a finding that he willfully resisted, delayed, or obstructed the officers, particularly where the officers were able to ascertain his identity. We decline, however, to create a rule that allows an individual who is arrested to dictate which identification tool or which part of the booking process an officer may employ. (See Quiroga, supra, 16 Cal.App.4th at p. 972 [conviction under section 148 affirmed where defendant refused to disclose his identity during the booking interview; defendant’s refusal to provide his name “delayed booking by only 30 minutes, but the consequences might have been much more burdensome to the state if it were not for his fortuitous identification by a correctional officer”]; People v. Christopher (2006) 137 Cal.App.4th 418, 428 (Christopher) [conviction under section 148 affirmed where defendant falsely identified himself to police after being arrested; “The fact that the police succeeded in identifying Christopher through the use of fingerprints despite his willful attempt to obstruct the identification process following his arrest, both before and after his arrival at the police station, is immaterial.”].)
Moreover, Brett does not offer any argument or evidence establishing that a photograph is unnecessary to police procedure following an arrest. In this regard, Brett does not appear to dispute that the taking of a booking photograph is a lawful act by an officer and is in the performance of official duties, regardless of whether the arrestee believes the photograph is necessary for identification.
In sum, Brett does not dispute that his failure to cooperate with the officers resulted in the officers being unable to take his photograph, a standard part of police booking procedure. Consequently, Brett’s conduct constitutes a willful act of resisting, delaying, or obstructing a peace officer in the discharge of, or attempt to discharge, a duty of the officer’s employment. (§ 148, subd. (a)(1).)
Brett’s second contention is that even if he had refused to give identifying information, the refusal would not have constituted a violation of section 148. Brett cites two cases, In re Gregory S. (1980) 112 Cal.App.3d 764 (Gregory S.) and Quiroga, supra, 16 Cal.App.4th 961, in support of this contention.
The first case, Gregory S., is distinguishable. In Gregory S., a deputy sheriff wanted to talk to a minor on his parent’s driveway in connection with the investigation of a neighbor’s complaint. Among other issues, Gregory S. addressed whether the minor’s refusal to identify himself when being detained by the officer constituted a violation of Penal Code section 148. The trial court had “stated that if ‘the suspect refuses to identify himself, the officer may take that person into custody.’ ” (Gregory S., supra, 112 Cal.App.3d at pp. 779.) The Court of Appeal disagreed: “We find no authority to support the court’s legal conclusion that a person who merely refuses to identify himself or to answer questions in a context similar to that before us thereby violates Penal Code section 148 or otherwise furnishes ground for arrest.” (Ibid.) After reviewing various authorities, the Court of Appeal concluded: “A categorical requirement for identification or response to questions incident to a lawful detention would thus appear invalid in this case and to the extent that the trial court purported to hold to the contrary, we respectfully disagree.” (Id. at p. 780.)
Thus, the question addressed by the Court of Appeal in Gregory S. was whether an individual’s refusal to provide certain information while being detained would constitute a violation of section 148. Gregory S. did not address whether an individual’s refusal to provide information or to otherwise cooperate during the booking process after the individual is arrested, might constitute a violation of section 148.
The second case cited by Brett is Quiroga, supra, 16 Cal.App.4th 961. In Quiroga, the defendant repeatedly refused to give his name to the officer after being arrested. (Quiroga, supra, 16 Cal.App.4th at p. 965.) “Upon arrival at the jail, [the defendant] persisted in refusing to give his name, frustrating attempts to book his arrest in official police records. After ‘approximately 30 minutes,’ one of the correctional officers recognized [the defendant] and confirmed his identity with a ‘picture from his file.’ [The defendant] then acknowledged his name for the first time.” (Id. at p. 965.)
On appeal, the defendant challenged his conviction for possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) and resisting a peace officer (§ 148). (Quiroga, supra, 16 Cal.App.4th at p. 964.) The Court of Appeal held that the defendant’s refusal to disclose his name during the booking interview following a felony arrest violated Penal Code section 148. (See Quiroga, supra, 16 Cal.App.4th at pp. 969-972.) The Court of Appeal also discussed whether such conduct following an arrest for a misdemean or would violate section 148. The Court of Appeal concluded that “a refusal to disclose personal identification following arrest for a misdemeanor or infraction cannot constitute a violation of Penal Code section 148.” (Quiroga, supra, 16 Cal.App.4th at p. 970.)
In this case, Brett asserts “[h]e was arrested on misdemeanor charges only” and relies on Quiroga for the proposition that his failure to identify himself during booking cannot constitute a violation of section 148. However, as the Attorney General discussed at oral argument, the record reflects that Brett was arrested for felony battery against a custodial officer (Pen. Code, § 243.1) in addition to willfully resisting, delaying, or obstructing a police officer from performing his official duties (Pen. Code, § 148, subd. (a)(1)), and thus Quiroga is not helpful to him.
Lastly, Brett argues that his conduct during booking did not constitute resistance, delay, or obstruction. Brett acknowledges that his “lack of cooperation” resulted in the officers not photographing him. He argues, however, that he “engaged in no physical action that supports” the perception by the officers that a fight might have been necessary to obtain his photograph. He states that while he failed to “ ‘respond with alacrity’ to the officers[’] direction that he stand up, he did respond eventually and stand.” Further, he contends that although he was rude and swearing, or had an attitude that was irritating and disrespectful to the officers, such conduct does not rise to the level of a violation of section 148.
We find Brett’s arguments unpersuasive. On the one hand, the “failure to respond with alacrity to police orders” does not amount to criminal conduct under section 148. (See Quiroga, supra, 16 Cal.App.4th at p. 966.) Moreover, as explained in Quiroga: “ ‘[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.) Indeed, ‘[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.’ (Id. at pp. 462-463.) 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.’ (Duran v. City of Douglas, Ariz. (9th Cir. 1990) 904 F.2d 1372, 1378.)” (Quiroga, supra, 16 Cal.App.4th at p. 966.)
Here, however, Brett was not simply slow in responding to the request to photograph him, nor was the evidence limited to “irritating” or “disrespectful” conduct by Brett. Rather, Officer Barrera testified that Brett “was being loud, boisterous, antagonistic, making it difficult trying to book him.” When asked “[i]n what way was that difficult in trying to book him,” Officer Barrera referred to Brett’s “threatening behavior” and that he was “antagonistic, loud, boisterous.”
Regarding the booking photograph in particular, Brett refused to stand up when asked, and only did so later in response to his brother being moved and seated elsewhere. Officer Barrera testified that Brett at this point became “combative.” Specifically, Officer Barrera testified that Brett “stood up and started yelling at the top of his lungs. His body became really stiff. . . . I told him to sit down. He wasn’t sitting down. He just started yelling at the officer who removed his brother from where he was at, his brother . . . . He was just not cooperating whatsoever, making it – something small into something big. Something that extreme shouldn’t have happened.” Similarly, Officer Fuentez testified that when Brett stood up, he started cussing and “got in [the officer’s] face.” Officer Fuentez testified that they knew at this point that “this was getting out of control.” Officer Fuentez testified: “There was no way we were going to be able to take his picture without a fight, so we chose not to take a picture.”
In light of the testimony from Officers Fuentez and Barrera regarding Brett’s conduct, including his refusal to stand up to be photographed, the cussing, stiffening of his body, and getting in the officer’s face after his brother was removed from the same bench, and his generally antagonistic and uncooperative conduct throughout the booking process, there was substantial evidence to support the finding that Brett willfully resisted, delayed, or obstructed the officers attempting to take his photograph. Brett’s photograph was never taken by officers as a result of Brett’s own conduct. Brett fails to point to any evidence from which we might reasonably conclude that the inability to take his photograph was due to conduct other than his own in resisting, delaying, or obstructing the officers in this regard.
IV. DISPOSITION
The order is affirmed.
WE CONCUR: Mcadams, J., Duffy, J.