In re A.W.













Filed 2/21/13 In re A.W. CA1/2

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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



FIRST
APPELLATE DISTRICT



DIVISION
TWO




>

In re A.W., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. A.W., Defendant and Appellant.	A135327 (Solano County Super. Ct. No. J40142)

I. INTRODUCTION

Eighteen-year-old
A.W. appeals from the juvenile court’s jurisdictional and dispositional orders
sustaining the allegation that he resisted a peace officer in the discharge of
the officer’s duties (Pen. Code, § 148, subd. (a)(1)),href="#_ftn1" name="_ftnref1" title="">[1]
and placing him on probation without wardship.
He contends the juvenile court should have rejected the allegation
because the prosecution failed to establish that the officers were engaged in
the performance of their lawful duties.
We will affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

On
December 23, 2011,
Fairfield Police Officers Joe Uchishiba and Michael Pena were on foot patrol in
full uniform at the Solano Mall. They
heard a scuffle and saw a number of security guards rushing into a store called
Hot Topic. As they approached the store,
they saw between five and seven security guards struggling with appellant. They could see rounders of clothing moving
around and people running away from the area of the struggle. The officers ran into the store to find out
what was going on and to assist the security guards.

Inside
the store, Officer Uchishiba saw appellant “thrashing around” as several
security guards tried to hold onto him.
The guards were yelling at appellant to stop. It appeared that the guards’ attempts to
subdue appellant were having little effect.


Officer
Pena saw a number of security guards trying to handcuff appellant. Appellant was on his knees and leaning
forward; “[h]is hands were outside his body like an airplane.” He was “not allowing his hands to go in front
of his body or behind his body.” Officer
Pena loudly announced “Fairfield Police Department” several times.

Officer
Uchishiba grabbed appellant’s left wrist and left arm in order to “control”
appellant, while at the same time yelling that he was a police officer. Officer Pena was also loudly identifying
himself as a police officer. Appellant’s
long hair obstructed his eyes as he bent forward, so Officer Pena bent over
appellant and leaned his head so appellant could see him. Appellant looked Officer Pena in the eyes and
the officer stated, “Fairfield Police Department. Quit resisting. Put your hands behind your back.” Appellant asked Officer Pena if he was “the
police,” and for that brief moment the struggle stopped. Both officers confirmed that they were
police, “and then the struggle was on again.”
Appellant resumed thrashing around and tried to get away from the
officers.

Officer
Pena tried to bring appellant’s right hand behind his back, but appellant was
strong and the officer was unable to do so.
Officer Pena testified: “Because
I don’t know if he’s armed, I can’t see the ground around me. I’ve never met him before. I don’t know what kind of character he
has. I delivered a couple of distraction
strikes to his jaw area to loosen the grip of his hand.”

The
officers were then able to handcuff
appellant and place him face down on the ground in a figure four leg lock so
they could search him. Appellant was
“still thrashing about trying to get away.
Resisting us.” The officers told
appellant to stop and submit, but appellant continued to struggle. He was “twisting and turning and he was
actually kicking toward [Officer Pena] and another security guard.” Officer Uchishiba placed his knee on the back
of appellant’s neck to try to further subdue him. Officer Pena also knelt on him.

The
officers got appellant to his feet and asked him to walk out of the store. Appellant “held his legs rigid and refused to
walk,” so each officer took one of appellant’s arms and began to take him out
of the store. Appellant “began to thrash
his head around and tried to pull away . . . .” He shoved Officer Pena as the officers
removed him from the store, and “almost headbutted” Officer Uchishiba. Appellant was still struggling and trying to
get away. Officer Pena conducted a leg
sweep to get him on the ground so the officers “could gain control of him
again.” The officers were then able to
put a leg restraint on appellant and took him outside the mall to the patrol
vehicle.

Appellant
was arrested for resisting the officers and trespassing. He was taken to North Bay Medical Center
where he received stitches for a wound to his chin.

On
cross-examination, Officer Uchishiba agreed that, when he first arrived at the
scene of the scuffle inside the store, he could not tell whether appellant was
being pushed or was doing the pushing.
He did not see appellant in possession of a weapon, but he could not see
his hands or inside his clothing.
Officer Uchishiba did not hear appellant threaten any of the security
guards, but he did hear the guards yelling at appellant to stop resisting.

Officer
Pena testified that he did not know what had transpired between appellant and
the security guards prior to the officers’ arrival at the store, and assumed
that the guards “were trying to take him into custody for some sort of
mall-related offense, like disturbing the peace.” Officer Pena testified that, prior to the
distraction strikes, appellant did not swing at or kick at any of the guards or
the officers. Officer Uchishiba agreed
that appellant never took “a fighting stance” toward him and did not punch or
strike him with one of his fists.

Both
officers testified that they announced themselves as police officers several
times, but appellant did not respond to their orders. Officer Uchishiba acknowledged that while he
and Officer Pena were yelling orders at appellant, the security guards were
also yelling at appellant.

Appellant
testified that he was Christmas shopping at the Solano Mall on December 23,
2011, when he was approached by “three or four” security guards. The guards talked to him, and “[a]fter they
were talking to [him], they took [him] to the ground.” There was a lot of yelling, and someone tried
to pull his arms or hands behind his back.
Appellant’s counsel asked if he had “a specific recollection of while
you were on the ground of an officer, a Fairfield police officer, identifying
himself as not a security guard but as a Fairfield police officer?” Appellant answered, “No.”

Appellant
said he “was getting roughed around a little bit,” and “sometime between
sitting on the ground and wrestling with like the security guards, I was
handcuffed and on the ground.” Different
people were exerting force on him and telling him different things. Prior to being handcuffed, appellant was
struck in the face. He did not know if
he was hit by a security guard or a police officer; he was not able to
distinguish between them. After he was
handcuffed, the two officers “carried . . .
or . . . walked [him] out of the
store . . . .”
Appellant testified that he recognized the individuals who were
escorting him out of the store as Fairfield police officers “when I was like
outside the store. Like maybe leaving
the store. Outside the store.” Once outside the store, he “got a leg sweep
and landed on the ground on [his] chin.”


Appellant
denied ever punching, intentionally kicking, or trying to head-butt the
officers. He denied refusing to
walk. After being put into the patrol
car, he was taken to the hospital and got stitches for the wound on his
chin. He still had a scar from it.

On
cross-examination, appellant was asked whether, prior to the incident, he had
been told not to enter the mall.
Appellant responded: “The month
before I was told that I was banned, but I never got anything from that. Like it was abrupt. They didn’t really tell me that I was
banned.”href="#_ftn2" name="_ftnref2" title="">[2]

When
he was approached by security guards in Hot Topic, one of the guards asked him
to leave. Appellant tried to talk to
him, but the guard kept asking him to leave.
When appellant tried to leave a couple of minutes later, he “started
scuffling with the guards. It was
weird.” He was pulled down to the
floor. The security guards physically
prevented him from leaving the store.

Appellant
denied ever raising his voice, but acknowledged that he was “tense” and
“confused.” He realized he was being
handcuffed as the cuffs went on. He did
nothing to prevent his arm from going behind his back. He did not say anything or question why he
was being handcuffed.

Appellant
was being walked out of the store and he “got like sweeped.” When asked if he made his legs rigid, he
answered, “I think so because it was pretty tense. I was pretty tense.” In response to being asked if he followed the
officers’ commands, he replied, “I don’t remember like commands being given
specifically.” When asked if he recalled
the officers telling him not to resist, appellant said, “There was a lot of
things like being said to me.
But—.”

Appellant
recognized Officer Pena in court and remembered seeing him at Hot Topic: “Like when we were leaving, I saw him. Like his face and stuff. So he was in Hot Topic.” Appellant did “[n]ot . . .
specifically” remember noticing the officer during the scuffle and did not
“remember him identifying himself.”

On
January 12, 2012, the Solano County District Attorney filed a wardship petition
pursuant to Welfare and Institutions Code section 602, subdivision (a),
alleging that appellant committed a misdemeanor violation of section 148,
subdivision (a)(1), in that he resisted, obstructed, or delayed a police
officer.

On
March 15, 2012, following the contested jurisdictional hearing, the juvenile
court sustained the petition.

At
the dispositional hearing on April 26, 2012, the court placed appellant on six
months’ informal probation without wardship pursuant to Welfare and
Institutions Code section 725, subdivision (a).

On
April 27, 2012, appellant filed a timely notice of appeal.

III. DISCUSSION

Appellant
contends there is insufficient evidence to support the finding that he violated
section 148, subdivision (a)(1), because the prosecution failed to show that
the officers were engaged in the performance of their lawful duties when they
arrested him.

A. Standard of Review.

When
the sufficiency of the evidence is challenged on appeal, we “review the whole
record in the light most favorable to the judgment below to determine whether
it discloses substantial evidence—that is, evidence which is reasonable,
credible, and of solid value—such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.” (People
v. Johnson (1980) 26 Cal.3d 557, 578.)
In viewing the evidence favorably to the judgment, we must also
“ ‘presume in support of the judgment the existence of every fact the
trier could reasonably deduce from the evidence. [Citation.]
If the circumstances reasonably justify the trial court’s findings,
reversal is not warranted merely because the circumstances might also be
reasonably reconciled with a contrary finding.
[Citations.]’ ” (>In re Ryan N. (2001) 92 Cal.App.4th
1359, 1372.) “The same standard of
appellate review is applicable in considering the sufficiency of the evidence
in a juvenile proceeding as in reviewing the sufficiency of the evidence to
support a criminal conviction.” (In re
Sylvester C. (2006) 137 Cal.App.4th 601, 605.)

B. Juvenile Court’s Ruling.

Appellant’s
counsel argued that the officers used excessive force against an unarmed minor
who was on his knees when they approached and posed no “significant danger or
risk that justified the level of force that they utilized.” Counsel also argued that, upon encountering
the security guards engaged with appellant, the police officers had no idea
what was going on and made no effort to find out. The officers’ “efforts to handcuff
[appellant] and use physical force to detain him were at that juncture outside
of their lawful duties, and they were not acting appropriately or lawfully.”

The
court disagreed, finding “as a lawful conclusion that the officers were in the
performance of their duties.
[¶ They were on duty at the mall to be engaged in security at
Christmastime. It’s certainly not
unusual to see police officers under those circumstances, and Fairfield P.D.
did assign them for that purpose.

“They
then hear a commotion. They enter into
the store, which is appropriate as part of their duties. They see one individual struggling with
between five and seven security officers, and they make every effort to try to
bring that circumstance under control.
[¶] The Court believes that the officers credibly did announce
their presence loud enough and under certain circumstances sufficient to alert
everybody in the store of their presence.
[¶] At that point in time, your client persisted in his struggles
with both the officers and then with the police officers.

“I
am concerned about the four distraction strikes to his face, but that is a
decision that an officer has to make under the heat of the circumstances, and I
can’t under those circumstances find that that force was unnecessary. And it did result in the officers[’] finally
being able to place him in handcuffs.

“Then
as your client testifies, under the circumstances where he is placed in
handcuffs and being led out of the store by the two police officers, he
persists in his resistance going rigid, resulting in the officers[’] having to
do at that point in time a leg sweep, taking him to the ground. [¶]
It’s unfortunate that he struck his chin, but those things happen when
people resist police officers’ efforts.
That resistance continued requiring him to be in leg restraints and
requiring the officers having to physically carry him out of the mall.

“All
of which, in the Court’s opinion, is evidence of delaying, resisting, or
obstructing the officers in the performance of their duties. That is a violation of Penal Code Section 148
and brings him within the provisions of Section 602 of the Welfare and
Institutions Code.”

C. Legal Principles.

Section
148, subdivision (a)(1), provides, in relevant part: “Every 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. To prove a violation of section 148,
subdivision (a)(1), the prosecution must establish: “(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.]” (People
v. Simons (1996) 42 Cal.App.4th
1100, 1108-1109.)

A
“[d]efendant 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. [Citation.] ‘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 pp. 1108-1109;
see also CALCRIM No. 2656.)

When
a peace officer employs reasonable force to make a lawful arrest, the officer
is acting in the performance of his or her duties; the arrestee is obliged not
to resist and has no right of
self-defense against such force. (>People v. Adams (2009) 176 Cal.App.4th
946, 952; In re Bacon (1966) 240
Cal.App.2d 34, 52, disapproved on other grounds in In re Brown (1973) 9 Cal.3d 612, 623 [“it is the duty of every
citizen to submit to lawful arrest”];
see also § 834a [no right to use force to resist arrest by a peace
officer, whether the arrest is lawful or unlawful].)

Conversely,
a peace officer is not engaged in the performance of his or her duties if an
arrest is unlawful. Unlawful arrests
include those made without probable cause and those involving the officer’s use
of excessive force. (>People v. Delahoussaye (1989) 213
Cal.App.3d 1, 7; People v. Olguin
(1981) 119 Cal.App.3d 39, 45.)

D. Analysis.

Appellant’s
argument on appeal concerns the second element of section 148, subdivision
(a)(1), i.e., the requirement that the officers were engaged in the performance
of their lawful duties. Appellant
contends this element was not established because the officers did not have probable
cause to arrest him and because the officers used excessive and unreasonable
force. We reject both arguments.

1. Performance
of Lawful Duties.

Appellant
argues that the officers were not performing their lawful duties because they
arrested him “without any knowledge of what crime he allegedly committed or
attempted to commit,” that is, without probable cause. According to appellant, upon arriving at the
scene at Hot Topic, the officers should have “commanded the security guards to
quiet down and then asked one of them a single clarifying question from the
‘who, what, where, how’ family. Had they
done so, they would have quickly realized that [appellant] had done nothing
more than allegedly trespass on the mall’s property. But instead of investigating, the officers
decided to join the confusion by yelling their own orders at [appellant] and
then forcefully arresting him ‘for some sort of mall-related
offense.’ ” Appellant argues that
the facts and circumstances known to the officers “did not warrant a prudent
man in believing that a crime had been committed,” the arrest was unlawful, and
the finding that he violated section 148 must be reversed. We disagree.

First,
as respondent observes, appellant conflates the distinct concepts of probable
cause to arrest and performance of duties.
A violation of section 148 is not limited to resisting a lawful >arrest.
The statute prohibits willfully resisting, delaying, or obstructing any
peace officer in the discharge or attempted discharge of any duty of his or her office.
(§ 148, subd. (a)(1).) Thus, the
statute prohibits interfering with an officer’s performance of any duty, the
scope of which encompasses more than simply making arrests.

Second,
the officers here were performing a lawful duty when they entered Hot Topic to
assist mall security. From outside the
store, they heard a scuffle and saw a struggle in progress, causing clothing
racks to move around and people to flee from the area. The officers rushed in and saw that between
five and seven security guards were unable to subdue appellant and stop him
from thrashing around. The officers
would have been derelict in their duty to protect public safety if they had not
intervened to help stabilize the situation and restore order.

Third,
we find unpersuasive appellant’s contention that the officers were required to
investigate or make inquiries before intervening in the struggle. The situation confronting the officers inside
the store was unstable and presented a risk to the personal safety of persons
in the area as well as that of appellant and the security guards who were
trying to subdue him. Under the
circumstances, the officers acted reasonably in taking immediate action to end
the disturbance and bring the situation under control.

Finally,
appellant continued to struggle even after the officers intervened, announced
themselves as police officers, and ordered appellant to stop resisting. By then, the officers had probable cause to
arrest appellant for the offense of resisting, delaying, or obstructing their
efforts. (§ 148, subd. (a)(1); see >People v. Celis (2004) 33 Cal.4th 667,
673 [probable cause exists when the facts known to the arresting officer would
persuade a reasonable person that the arrestee has committed a crime].) Appellant had a duty to submit to the lawful
arrest (In re Bacon, >supra, 240 Cal.App.2d at p. 52) and a
duty to refrain from using further force (§ 834a).

2. Excessive
Force.

Next,
appellant contends the juvenile court’s finding must be reversed because the
officers used excessive and unreasonable force in arresting him. An arrest made with excessive force is
unlawful. (People v. White (1980) 101 Cal.App.3d 161, 167.) Appellant argues that the amount of force the
officers used was not objectively reasonable in light of the circumstances
confronting the officers when they arrived on the scene. Specifically, appellant contends the
officers’ use of force was unreasonable because they did not know why the
security guards were attempting to subdue appellant, appellant was on his
knees, the officers did not see any weapons, did not see appellant hit or kick
anyone, and did not hear appellant make any threats.

Appellant’s
account of the incident differed in significant respects from that of Officers
Uchishiba and Pena.href="#_ftn3" name="_ftnref3"
title="">[3] Accepting appellant’s assertion that the
officers used excessive force would require us to credit appellant’s account
and reject much of the officers’ testimony, which the court found credible. This we will not do. (People
v. Lindberg (2008) 45 Cal.4th 1, 27 [reviewing court does not reweigh the
evidence or reevaluate the credibility of witnesses].)

Moreover,
it is clear from the record that appellant was not, as he claims, in a
“compliant position.” Rather, he was
exerting considerable force to avoid being subdued, first by the security
guards and then by the police officers.
The officers used increasing force to gain control over appellant as
less forceful options were unsuccessful.
The officers first identified themselves as Fairfield police and ordered
appellant to stop resisting and put his hands behind his back. They unsuccessfully tried to subdue him and
physically move his hands behind his back before delivering distraction strikes
to his jaw in order to place him in handcuffs.
Despite being handcuffed, appellant was twisting and turning and
attempting to kick Officer Pena and one of the security guards, at which time
Officer Pena knelt on appellant in order to search him. The officers got appellant to his feet and
asked him to walk out of the store, but appellant held his legs rigid and
refused to walk. The officers each took
him by one arm to get him out of the store.
He resumed thrashing, pushing one officer and attempting to head-butt
the other. The officers conducted a leg
sweep to regain physical control over him.

The
juvenile court expressed concern about the distraction strikes to appellant’s
face, but concluded that it was “a decision that an officer has to make under
the heat of the circumstances.” The
court could not “under those circumstances find that that force was
unnecessary.” The court also found it
unfortunate that appellant hurt his chin, but observed that “those things
happen when people resist police officers’ efforts.” In light of the facts and circumstances confronting
the officers, the force they used to subdue appellant, remove him from the
store, and arrest him was not unreasonable or excessive.

IV. DISPOSITION

The
orders appealed from are affirmed.





_________________________

Haerle,
J.





We concur:





_________________________

Kline, P.J.





_________________________

Richman, J.