Opinion
The juvenile court declared minor Manuel G. a ward of the court after finding that he had violated Penal Code section 69
As we shall explain, we disagree with the Court of Appeal’s determination on two separate grounds. First, whether or not the deputy unlawfully had detained the minor at the time the minor threatened the deputy, the juvenile court’s finding that the minor viоlated section 69 may be upheld on the ground that the minor’s threat reasonably could be interpreted as intended to deter the deputy and other law enforcement officers from lawfully performing, in the future, a duty imposed upon them by law with regard to the investigation of the minor and his fellow gang members; as we shall see, such a threat—attempting to deter an officer from the lawful performance of his or her duties in the future—constitutes a violation of section 69 without regard to whether the officer is engaged in the lawful performance of his or her duties at the time the threat is made. Second, even if the minor’s threats
I
The Orange County District Attorney filed a petition to declare the minor a ward of the court (Welf. & Inst. Code, § 602), charging him with attempting by means of threats to deter and prevent an executive officer from performing a duty imposed by law, in violation of section 69. At the jurisdictional hearing on the petition, Deputies Brian Sims and Dominick Montalbano of the Orange County Sheriff’s Department testified concerning the events that gave rise to the charge against the minor.
Deputy Sims testified that in the course of investigating a gang-related shooting, he attempted to locate active gang members in order to obtain additional information concerning the case. While patrolling on the evening of April 19, 1994 (three days after the shooting), he saw the minor walking on the street. Sims recognized the minor as a gang member and broadcast over the police radio that he was making a gang-related “pedestrian check.” After Sims got out of his patrol car, the minor continued walking toward him. The deputy asked something like, “Hey, can I talk to you?,” and indicated he wanted to speak with the minor about the shooting. The minor stated he had no information. Sims continued to speak to the minor and asked him whether he knew of the circumstances involving the case. Sims did not draw his gun or deter or stop the minor from continuing what he was doing. In response to Sims’s questiоning, the minor stated that he was going to contact “Internal Affairs,” presumably to complain about the deputy’s conduct. The minor said he was tired of the Orange County Sheriff’s Department contacting him.
Sims testified that immediately following the minor’s statement about contacting internal affairs, the minor said, “Me and my home boys are going to start killing you and your friends.” Sims informed the minor that making any kind of threat against him was against the law. The minor continued making threats, such as: “Hey, you better be watching your back. And we’re going to start knocking you guys off. You guys aren’t so bad. I’m not afraid of dying. You guys are the ones that should be afraid of dying.”
The minor did not make a motion to suppress evidence (§ 1538.5), nor did he present any evidence of his own, at the jurisdictional hearing. At the conclusion of the hearing, the juvenile court sustained the allegations of the petition. At the dispositional hearing, the court continued the minor’s wardship and placed him on probation, ordering that he serve 180 days in a juvenile facility.
The minor appealed, arguing that there was insufficient evidence to support the juvenile court’s finding that the minor had violated section 69, bеcause the prosecutor had not presented any evidence demonstrating that the minor had the specific intent to interfere with an officer’s performance of his or her duties. On its own initiative at oral argument, the Court of Appeal for the first time raised the issue whether Deputy Sims’s encounter with the minor was justified. In its initial opinion, the Court of Appeal noted but did not address the minor’s argument regarding the sufficiency of the evidence; rather, it considered the fundamental issue in the case to be whether the encounter was consensual or instead amounted to an illegal detention. Relying upon People v. Wilkins (1993)
The Attorney General petitioned for rehearing on the grounds that no question concerning whether the minor had been detained—legally or illegally—was ever proposed or briefed by any party in the case, and that the record failed to support the Court of Appeal’s determination that the minor
The Court of Appeal’s opinion after rehearing repeated in large part its previous оpinion. With regard to the nature of Deputy Sims’s encounter with the minor, the Court of Appeal stated: “[Although Sims testified the encounter was consensual, it is beyond cavil the detention was illegal: Manuel was stopped solely because he was a gang member; Sims had no articulable suspicion Manuel had a connection with or knew about the prior gang shooting; and, Sims forced Manuel to sit on the curb and continue answering questions even after Manuel said he knew nothing about the shooting and did not want to answer any further questions.” Having determined that Sims was not engaged in the lawful performance of his duties at the time the minor made the threatening remarks, the Court of Appeal again concluded that the threats did not constitute a violation of section 69 and therefore that the judgment rendered by the juvenile court must be reversed. In light of this conclusion, the Court of Appeal did not analyze or fully discuss the minor’s further contention that there is insufficient evidence to support the juvenile court’s finding that he violated section 69 because the evidence fails to establish that he acted with the specific intent to interfere with Sims’s performance of his duties. Nor did the appellate court consider the minor’s claim that he was denied his constitutional right to the effective assistance of trial counsel.
We again granted the Attorney General’s petition for review, which raised the sole issue whether the deputy illegally had detained the minor before the threats were made. Subsequently, we requested and obtained supplemental briefing from the parties on the issue whether the prosecution must prove, as
II
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 by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment.”
The statute sets forth two separate ways in which an offense can be committed. The first is attempting by threats or violence to deter or prevent an officer from perfоrming a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty. (In re M.L.B. (1980)
A threat, unaccompanied by any physical force, may support a conviction for the first type of offense under section 69. (In re M.L.B., supra, 110 Cal.App.3d at pp. 503-504.) To avoid the risk of punishing protected First Amendment speech, however, the term “threat” has been limited to mean a
The long-standing rule in California and other jurisdictions is that a defendant cannot be convicted of an offense against a peace officer “ ‘engaged in . . . the performance of. . . [his or her] duties' " unless the officer was acting lawfully at the time the offense against the officer was committed. (People v. Gonzalez (1990)
People v. Gonzalez, supra,
The question in the present case is whether section 69’s attempt-to-deter offense includes a requirement that the officer be engaged in his or her duty at the time a threat is made. In concluding such a requirement exists, the Court of Appeal relied solely upon People v. Wilkins, supra,
The Court of Appeal in the present case cited this passage from Wilkins as authority for its conclusion that, in order for the minor to have violated section 69 by threatening Deputy Sims, the deputy must have been engaged in the lawful performance of his duties at the time the threat was made. People v. Wilkins, supra,
The first type of offense under section 69, however, prohibits the use of threats of violence to attempt to deter or prevent an officer from performing any duty imposed by law. Although the statute applies only when the
Of course, when a defendant threatens an on-duty officer in an attempt to deter or prevent the officer from continuing to perform the specific conduct in which the officer is then currently engaged, and the officer’s conduct is unlawful, the defendant would not violate the statute, because he or she would not have attempted to deter the officer’s performance of lawful conduct. When a defendant threatens an officer in an attempt to deter the officer from performing a duty at some later time, however, only the future performance of such duty must be lawful, and the circumstance that the officer may not have been acting in the lawful performance of his or her duties—or may not have been engaged in his or her official duties at all—at the time the threat is made, would not preclude a finding that the defendant violated section 69. In sum, under the first type of offense prohibited by section 69, the relevant factor is simply the lawfulness of the official conduct that the defendant (through threat or violence) has attempted to deter, and not the lawfulness (or official nature) of the conduct in which the officer is engaged at the time the threat is made.
The minor seeks to avoid this construction of section 69 by relying upon the statute’s legislative history. He observes that when section 69 was adopted as part of the original Penal Code in 1872, an annotation to the section referred to a previous version of the statute and several out-of-state cases. Those authorities required that, in order to establish the commission of an offense, it must be established that the officer was engaged in the lawful performance of his or her duties when the defendant obstructed or resisted such performance. Therefore, according to the minor, the current version of section 69 must contain a similar requirement.
The minor further contends that the first type of offense under section 69 is limited to an attempt to deter an officer from lawfully executing process or performing similar duties such as making an arrest. The minor observes that the “duty” requirements in the two types of offenses set forth in section 69 are phrased differently from one another. The first offense involves attempting to deter performance of “any duty imposed upon such officer by law,” whereas the second offense concerns obstructing or resisting an officer “in the performance of his duty.” The minor maintains that the Legislature would not have used different language in setting forth the two duty requirements if it did not intend different meanings. To ascertain such meaning, the minor looks to certain of section 69’s predecessor statutes that prohibited interferеnce with an officer’s lawful execution of some process or order of the court. According to the minor, the phrase “any duty imposed ... by law” in the initial portion of section 69 is limited to such narrowly defined duties, while the “duty” referenced in the second portion of section 69 refers to any and all lawful conduct in which an officer might be engaged during the course of his or her employment.
Again, because the language of the statute is clear, we need not resort to legislative history to interpret it. The phrase “any duty imposed upon such officer by law" reasonably cannot be limited solely to execution of process and similar duties, because the law requires and authorizes officers to perform numerous other duties. Indeed, the term “executive officer” as used in section 69 is not limited to peace officers such as police officers or deputy
The interpretation of section 69 that we have set forth above furthers the statute’s purpose of prohibiting the use of threats or violence as a tool for attempting to interfere with executive action. As the Court of Appeal stated in People v. Superior Court (Anderson), supra,
We proceed to apply this interpretation of section 69 to the facts of this case. The record indicates that the minor’s threats to kill Sims and his fellow officers reasonаbly could be construed as an attempt to deter the Orange County Sheriff’s Department’s future investigation of gang-related activities. In response to Sims’s questions concerning the shooting, the minor said he was tired of the department contacting him. The minor’s threats were not directed solely at Sims, but also toward others in the department. Thus, he stated: “Me and my home boys are going to start killing you and your friends.” “I’m tired of you guys fucking with us, and you better watch out, we’re going to start knocking you guys off.” Taken in context, these statements suggest that the minor felt frustrated at being contacted in the course of the department’s investigations, and that his threats constituted an attempt to deter deputies from initiating further contacts with him or other gang members. The minor does not contend, and there is nothing in the
Therefore, even assuming for the sake of argument that the record establishes (as the Court of Appeal determined) that the minor was unlawfully detained by Sims before the minor uttered these threats, the juvenile court still properly could find that the minor violated section 69. Accordingly, we conclude that the Court of Appeal erred in reversing the juvenile court’s finding on the ground that section 69 necessarily required Sims to have been engaged in the lawful performance of his duties at the time the minor made the threats in question.
III
Furthermore, even if the minor’s threats are construed solely as an attempt to deter Sims from contemporaneously continuing to perform those actions in which the deputy was engaged during his encounter with the minor, we conclude the Court of Appeal’s ruling cannot be sustained, beсause the record contains substantial evidence to support a finding that the encounter was consensual and that Sims was engaged in the lawful performance of his duties at the time the minor threatened him. As noted, in juvenile court the minor did not raise any question with regard to the legality of Sims’s conduct preceding the minor’s arrest, and, indeed, the minor also did not raise this issue in his initial briefing in the Court of Appeal. It was only after the Court of Appeal raised the point on its own motion at oral argument that the parties addressed the issue. The Attorney General maintains that, on the present record, the Court of Appeal improperly found that the minor’s threats against the deputy sheriff were made during an illegal detention. As we shall explain, we agree with the Attorney General’s position.
The United States Supreme Court has made it clear that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. (Florida v. Bostick, supra,
The Court of Appeal determined that the minor was unlikely to have believed he was free to leave, because it found that Deputy Sims had ordered
The record contains substantial evidence from which the juvenile court could have found that the minor threatened Deputy Sims during a consensual encountеr. Sims’s uncontradicted testimony indicated that after the deputy got out of his patrol car, the minor continued walking toward him. Sims asked whether they could talk, and the minor responded to his questions. Sims did not draw his gun or deter or stop the minor from continuing what he was doing. Approaching the minor in a public place and asking him questions were not actions in themselves constituting coercive police conduct that would lead a reasonable person to believe that he or she was not free to leave. (Florida v. Bostick, supra,
The minor argues that Sims’s testimony is “highly improbable” and incredible when considered in light of the entire record, and that therefore no reasonable trier of fact could find that the minor consented to the encounter before making any of the threats. The minor relies upon Montalbano’s statement that Sims used the term “pedestrian stop” in the radio broadcast, as well as what the minor describes as Sims’s continued “incessant interrogation” after the minor told Sims that he had no information. According to the minor, his warning to Sims that he would call internal affairs if Sims did not
Even if Sims stated in his radio broadcast that he was making a pedestrian stop, as Montalbano testified, that statement does not contradict Sims’s testimony that the encounter remained consensual until the minor threatened him. The broadcast was made before Sims got out of his patrol car and thus could not establish the nature of an encounter that had not yet occurred. Furthermore, Sims’s continued questioning of the minor does not suggest that the encounter was a detention. As we have explained, there is no evidence in the record suggesting that Sims, by words, gestures, or other coercive conduct, restrained the minor in any manner before the minor threatened to kill Sims. Moreover, even if the testimony upon which the minor relies might support a finding that the encounter was a detention, we must view the evidеnce in the light most favorable to the judgment below. (People v. Hawkins (1995)
The minor asserted for the first time at oral argument that the legality of his encounter with Deputy Sims must be analyzed under article I, section 13 of the California Constitution. He contends the requirement that the officer be engaged in lawful conduct is an element of the substantive offense under section 69, and that the California Constitution’s “Truth-in-Evidence” provision (Cal. Const., art. I, § 28, subd. (d)), requiring that questions involving the exclusion of evidence be resolved under federal law applying the Fourth Amendment (In re Lance W. (1985)
The minor relies upon People v. Bower (1979)
In concluding that the minor was detained illegally before he made any threats, the Court of Appeal relied upon a remark made by the juvenile court judge during the proceedings on the minor’s motion for a new hearing. The minor contends that the remark amounted to a permissible inference that the court reasonably drew from the evidence. In moving for a new hearing, defense counsel asserted that the court improperly had considered an inadmissible report regarding the minor’s gang involvement. The court responded: “All this—all the gang stuff has nothing to do with—he just threatened a police officer, and all I thought was the police officer testified—and you correct me if I’m wrong—that they wanted to talk to him about a gang shooting, that they stopped him, they discussed it, he said, T don’t have anything to say to you,’ something to thаt effect, and [the] officer said, T want to talk to you. Blah, blah, blah, blah, blah. Sit down on the curb.’ And that’s when the dam broke.” The court then indicated it had admitted Sims’s testimony concerning the minor’s gang involvement but had not read the report in question. The minor’s attorney responded that if the court had not read and considered the report, she would forego the argument.
Although the juvenile court made no express finding as to the nature of the initial encounter between the minor and Sims, as we have seen there is substantial evidence in the record to support the conclusion that it was consensual, and that the minor threatened Sims in the course of that consensual encounter. Because, under established appellate practice, an appellate court must “view the evidence in the light most favorable to the judgment below, and . . . ‘ “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence” ’ [citations]” (People v. Rich (1988)
IV
The judgment of the Court of Appeal is reversed, and the case is remanded to that court for consideration of the additional contentions raised on appeal.
Mosk, J., Kennard, J., Baxter, J., Werdegar, J., Chin, J., and Brown, J., concurred.
Notes
Further undesignated statutory references are to the Penal Code.
Government Code section 68081 provides: “Before the Suрreme Court, a court of appeal, or the appellate department of a superior court renders a decision in a proceeding other than a summary denial of a petition for an extraordinary writ, based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing. If the court fails to afford that opportunity, a rehearing shall be ordered upon timely petition of any party.”
The minor’s brief on the merits in this court renews his claim of ineffective assistance of counsel. He did not, however, raise this issue in his answer to the petition for review, and his brief therefore improperly addresses the issue. (Cal. Rules of Court, rules 28(e)(5), 29.2(b), 29.3(c).) In any event, we find it appropriаte to allow the Court of Appeal to consider the issue in the first instance on remand. (See also People v. Mendoza Tello (1997)
The minor’s brief on the merits in this court also addresses another issue that is not properly before us. The minor contends that a comment made by the juvenile court in ruling on an objection establishes that the court misunderstood the elements of the offense with which the minor was charged and demonstrates that the court failed to find all the required elеments of the offense in sustaining the allegations of the petition. The minor did not raise this issue in his briefs in the Court of Appeal, however, or in his answer to the petition for review. We believe it is appropriate for the Court of Appeal, on remand, to determine whether the minor should be permitted to raise the issue in that court.
People v. Gonzalez, supra,
Section 417.8 provides: “Every person who draws or exhibits any firearm, whether loaded or unloadеd, or other deadly weapon, with the intent to resist or prevent the arrest or detention of himself or another by a peace officer shall be imprisoned in the state prison for two, three, or four years.”
Section 69, however, does not reach threats made only in response to or in retaliation for an officer’s past performance of his or her duties.
We note also that People v. Buice (1964)
As noted, the Court of Appeal’s disposition of the appeal rendered it unnecessary for that court to address the minor’s argument that there is insufficient evidence to support his conviction under section 69 because the prosecution evidence fails to establish that he acted with the intent to prevent or deter, rather than simply to express his displeasure with, the deputy’s actions. The appellate court briefly stated in a footnote that “had [Deputy] Sims been acting in the lawful performance of his duties, Manuel’s threats would have supported a finding of a violation of section 69. [Citations.]” Contrary to the Attorney General’s argument, we do not believe this brief statement may be considered to be a discussion or resolution of the minor’s argument that he lacked the specific intent necessary to establish a violation of section 69. The Court of Appeal neither analyzed the minor’s argument nor mentioned the authority upon which the minor relied. Under these circumstances, we believe it is appropriate for the Court of Appeal to consider that issue in the first instance on remand, and we therefore express no opinion as to whether the evidence is sufficient to establish that the minor made threats constituting an attempt to deter present or future duties imposed by law.