
    Appellate Department, Superior Court, Los Angeles
    [No. BR 35200.
    June 4, 1996.]
    THE PEOPLE, Plaintiff and Respondent, v. LUIS MARTIN ROBLES, Defendant and Appellant.
    
      Counsel
    Gary M. Bock for Defendant and Appellant.
    James K. Hahn, City Attorney, Debbie Lew and Edith Kornfeld, Deputy City Attorneys, for Plaintiff and Respondent.
   Opinion

JOHNSON, Acting P. J.

Luis Martin Robles (appellant) appeals from his conviction for obstructing an officer in the discharge of his duties in violation of Penal Code section 148, subdivision (a). Appellant first challenges his conviction on the ground the evidence failed to establish that in interacting with the suspect, Officer Huizar was discharging or attempting to discharge his duties. Appellant further contends his conduct constituted protected speech under the federal and California Constitutions. We disagree with appellant’s contentions and affirm the judgment.

I.

Appellant was charged with violating Penal Code section 148, subdivision (a), which prohibits willful resistance, delay or obstruction of an officer in the discharge or attempted discharge of his or her duties. Appellant was tried by a jury. At the conclusion of the People’s case, appellant moved for an acquittal pursuant to Penal Code section 1118.1. The motion was denied. Appellant was found guilty and placed on summary probation. Thereafter, appellant filed a timely notice of appeal.

II.

The evidence presented in the People’s case was as follows: Officer Samuel Huizar testified that he is a police officer for the City of Los Angeles, assigned to West Bureau narcotics. On March 17, 1995, at approximately 5:30 p.m., he was working undercover, attempting to buy narcotics in the area of Braddock and Slauson, an area with heavy narcotic and gang activity. The undercover investigation involved approximately four uniformed officers, eight to ten detectives, six undercover officers and three supervisors. Officer Huizar was dressed in civilian clothing and was wearing a “wire” on his body in order to communicate with his supervisors. He was driving a white Beretta with no lights.

Officer Huizar observed a male Hispanic about 17 years old (the suspect) on a bicycle in the middle of the street. Officer Huizar stopped his vehicle next to the suspect and asked him if he had “rock,” the street term for rock cocaine. The suspect asked Officer Huizar how much he wanted, and Officer Huizar told him he wanted a “dime,” the street term for $10 worth of narcotics. The suspect then asked the officer, “You only want a dime?” The officer responded, “Yes,” and reached into his right front pants pocket and removed two precoded $5 bills. Then Officer Huizar heard someone yell, “Get away from that guy! The guy’s a cop!” The suspect looked at Officer Huizar and asked, “Are you a cop?” Officer Huizar responded, “No, I’m not.”

Appellant then walked up to the suspect and said, “I told you to get away from that guy. The guy’s a cop.” The suspect told Officer Huizar he was not going to sell him anything because he was a cop and rode away on his bicycle. Officer Huizar then contacted his supervisors, who detained appellant.

Officer Huizar testified that getting “burned,” i.e., being identified as a police officer, compromises an officer’s safety and prevents him from doing his duty. Since a suspect will not deal with an individual who has been identified as a police officer, once an officer has been so identified, the officer must be replaced by another undercover officer.

III.

Appellant first challenges his conviction on the ground the evidence did not establish that in interacting with the suspect, Officer Huizar was discharging or attempting to discharge a duty of his office.

“[P]olice involvement in criminal activity for the purpose of investigating possible violations is permissible even if technical violations of law occur.” (Provigo Corp. v. Alcoholic Beverage Control Appeals Bd. (1994) 7 Cal.4th 561, 568 [28 Cal.Rptr.2d 638, 869 P.2d 1163].) “[T]he rule is clear that ‘ruses, stings and decoys are permissible stratagems in the enforcement of criminal law, . . .’[Citations.]” (Id. at p. 569.) “As a general rule, the use of decoys to expose illicit activity does not constitute entrapment, so long as no pressure or overbearing conduct is employed by the decoy.” (Id. at p. 568; see also People v. Barraza (1979) 23 Cal.3d 675, 690 [153 Cal.Rptr. 459, 591 P.2d 947].)

The evidence established Officer Huizar was assigned to work undercover as part of a decoy program to enforce drug laws. His assignment required him to attempt to purchase narcotics in the area in question. Nothing in the record suggests Officer Huizar attempted to entrap the suspect by pressuring him or engaging in overbearing conduct. The use of undercover vice officers to expose illicit activity is a long used and permissible part of law enforcement duties. (Provigo Corp. v. Alcoholic Beverage Control Appeals Bd., supra, 7 Cal.4th at pp. 568-569.) In view of the foregoing, we conclude that in interacting with the suspect, Officer Huizar was discharging a duty of his office.

IV.

Appellant next contends his conviction violated his right to free speech under the First and Fourteenth Amendments to the United States Constitution and article I, section 2 of the California Constitution.

“[C]ertain forms of speech, or speech in certain contexts has been considered outside the scope of constitutional protection.” (Konigsberg v. State Bar (1961) 366 U.S. 36, 50 [6 L.Ed.2d 105, 116, 81 S.Ct. 997]; see also Cox v. Louisiana (1965) 379 U.S. 536, 563 [13 L.Ed.2d 471, 491-492, 85 S.Ct. 453].) For example, an individual may be punished for encouraging the commission of a crime or for uttering “fighting words.” (Cox v. Louisiana, supra, 379 U.S. at p. 563 [13 L.Ed.2d at p. 491]; see also Long v. Valentino (1989) 216 Cal.App.3d 1287, 1296 [265 Cal.Rptr. 96].) “ ‘[I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced or carried out by means of language, either spoken, written, or printed.’ [Citation.]” (Cox v. Louisiana, supra, 379 U.S. at p. 563 [13 L.Ed.2d at pp. 491-492].)

Penal Code section 148 does not apply solely to nonverbal conduct involving flight or forcible interference with an officer’s activities. “No decision has interpreted the statute to apply only to physical acts, and the statutory language does not suggest such a limitation.” (People v. Quiroga (1993) 16 Cal.App.4th 961, 968 [20 Cal.Rptr.2d 446].) Nevertheless, we recognize that “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” (Houston v. Hill (1987) 482 U.S. 451, 461 [96 L.Ed.2d 398, 412, 107 S.Ct. 2502].) We further recognize that Penal Code section 148 must be applied with great caution to speech. (People v. Quiroga, supra, 16 Cal.App.4th at p. 968.)

Appellant claims his conduct was constitutionally protected because he did not utter “fighting words,” breach the peace or engage in disorderly conduct. He argues he should not be punished merely for discouraging the suspect from committing a crime. However, the record contains substantial evidence that appellant willfully obstructed the officer in the performance of his undercover duties.

Appellant does not dispute the fact that he knew Officer Huizar was a police officer. It may be inferred from the content of appellant’s warning and the nature of the area in question that appellant knew the officer was conducting an undercover investigation. Appellant not only alerted the suspect to the officer’s identity but directed the suspect to “get away from [the officer].” When the suspect failed to heed appellant’s initial warning, appellant approached the suspect and stated, “I told you to get away from that guy. That guy’s a cop.” As a result of appellant’s warning the suspect fled, preventing the officer from obtaining evidence of a crime he might otherwise have obtained.

“[S]peech is generally protected by the First Amendment, even if it is intended to interfere with the performance of an officer’s duty, provided no physical interference results.” (Long v. Valentino, supra, 216 Cal.App.3d at p. 1296, italics added.) In this case, appellant’s speech did not constitute mere verbal criticism and challenge directed at the officer. Appellant’s speech accomplished a physical event, i.e., the flight of the suspect, which interfered with the officer’s ability to complete his investigation.

As the Court of Appeal explained in Long v. Valentino, supra, 216 Cal.App.3d at page 1297: “[W]e do not literally punish a bandit for mere use of the words, ‘Stick ’em up, you moron.’ We punish him for the act of attempting to take the property of another by force and fear. It is of no moment that language was the vehicle to the goal in this . . . hypothetical case. Physical force alone could have been employed . . . and the words, while they may have contained a kernel of expression . . . (e.g., ‘you moron’), amount to conduct designed to accomplish a direct violation of the law and not primarily a means of conveying an idea or point of view.” Based on the reasoning in Long, supra, 216 Cal.App.3d at page 1297, we are persuaded that appellant’s speech was not constitutionally protected under the federal and state Constitutions.

The judgment is affirmed.

Kakita, J., concurred.

TODD, J., Dissenting.

I concur in the majority’s conclusion that Officer Huizar was discharging a duty of his office in conducting the undercover operation. I am of the view, however, that appellant’s verbal warning to a third party before any obvious illegal activity had taken place was protected speech and therefore cannot constitute a violation of Penal Code section 148, subdivision (a).

The cases on which respondent relies, People v. Quiroga (1993) 16 Cal.App.4th 961 [20 Cal.Rptr.2d 446] and In re Andre P. (1991) 226 Cal.App.3d 1164 [277 Cal.Rptr. 363], are not on point. In Quiroga, the court specifically stated that no constitutionally protected speech was involved in determining that the defendant’s refusal to give his name at his booking after a valid arrest constituted a violation of Penal Code section 148, subdivision (a). (16 Cal.App.4th at p. 972.) As for Andre P., there was no issue whether Penal Code section 148, subdivision (a) applied to speech which allegedly interfered with an officer’s duty. The court held that the above section was not facially overbroad and was constitutional as applied to Andre P.

As there appears to be no California case directly on point, a review of decisions from other jurisdictions may be helpful in determining whether one can obstruct an undercover officer by giving a verbal warning to a third party. In State v. CLR (1985) 40 Wn.App. 839 [700 P.2d 1195], CLR was convicted by a juvenile court of obstructing a police officer. In that case, a police officer on undercover duty approached a woman standing on the street. After talking to the officer through the open window of the officer’s truck, the woman agreed to engage in an act of prostitution. CLR, who recognized the officer as a member of the vice squad, observed but could not hear the exchange. The woman walked around the truck and opened the passenger door, at which point CLR yelled, “ ‘he’s vice.’ ” At that point the woman closed the door and started to walk away from the truck. (Id., 700 P.2d at p. 1196.)

The reviewing court held there was insufficient evidence that the defendant knew “that a public servant [was] engaged in a discharge of official duties . . . .” (State v. CLR, supra, 700 P.2d at p. 1197.) The officer was working undercover, and the defendant “could not have known that a crime had been committed and that the officer would be proceeding to make an arrest . . . .” (Ibid.) The reviewing court also held there was insufficient evidence of “hindering, delaying, or obstructing . . . .” (Ibid.) Finally, the court there noted: “Courts have found that similar obstruction statutes do not apply where there was no obvious, contemporaneous, illegal activity when the warning was given.” (Ibid.)

Likewise, in State v. Jelliffe (1982) 5 Ohio Misc.2d 20 [449 N.E.2d 810], the defendant was attending a rock concert and recognized an individual in plainclothes as a police officer. “Defendant then told at least one other individual, evidently in the hearing of the officer, that the large person was a ‘cop.’ ” (Ibid.) The court found the defendant not guilty, based in part on the following reasoning: “[T]here is no allegation that defendant’s conduct actually prevented the arrest of any persons who were then violating the law. While it may have made detection of violations more difficult, it is equally possible that it may have inhibited the commission of crimes in the first place. Surely that is one goal of law enforcement.” (Id. at p. 811.)

In State v. Tages (1969) 10 Ariz.App. 127 [457 P.2d 289], two officers were advised there was a felony warrant outstanding for the arrest of Mr. Tages. The officers, dressed in plainclothes, saw Mr. Tages at a bar sitting next to his wife, the defendant. The defense witnesses testified that the defendant told her husband not to go with the officers until they produced a warrant for his arrest. The reviewing court stated: “[W]e think that speech which is non-threatening, and which is not accompanied by physical force, is punishable only when it is substantially equivalent to force, that is, when it is intended to and does incite an unlawful resistance by another to the discharge of official duty or when the speech itself by its very volume and intensity interferes substantially with the carrying out of an official duty. [Citations.]” (Id., 457 P.2d at p. 292, fns. omitted.)

In People v. Lopez (1978) 97 Misc.2d 124 [410 N.Y.S.2d 787], the defendant was charged with obstructing governmental administration. “On June 15, 1978, at 9:35 p.m., at the Kingsbridge Road (IND) subway platform southbound, the complaining officer, while in plainclothes and on anti-crime patrol, was recognized by the defendant. He promptly and repeatedly shouted his observation to the world by announcing the fact that the complainant was a police officer and warning those within hearing to refrain from doing anything wrong.” (Id., 410 N.Y.S.2d at p. 788.) The officer claimed “he then had a youth suspected of a graffiti offense under surveillance . . . .” (Ibid.) In dismissing the charge, the court stated: “In the case at bar the effect of the defendant’s disclosure did, perhaps, make it more difficult to perform plainclothes duty. The fact, alone, is a risk inherent in many other similar situations. . . .” (Ibid.)

In the present case, the warning occurred before any obvious illegal activity had taken place. In addition, as in State v. Jelliffe, supra, 449 N.E.2d 810, appellant’s warning may have prevented a crime from being committed. Furthermore, appellant’s speech was nonthreatening, was not accompanied by physical force, was not so loud or intense that it interfered with Officer Huizar’s duty, and did not incite an unlawful resistance by the suspect. As appellant notes, the suspect had no duty to continue to talk to the undercover officer.

Although appellant’s disclosure of the officer’s identity might make it more difficult for Officer Huizar to continue to perform plainclothes duty in that area, it is clear that at least one person in the area, appellant, already knew or suspected that Huizar was a police officer. An officer working undercover places himself in danger, and an inherent risk of this kind of duty is that the officer’s identity may be known or may become known.

The majority relies on Long v. Valentino (1989) 216 Cal.App.3d 1287 [265 Cal.Rptr. 96], and concludes that appellant’s statements were not merely speech but rather speech that resulted in physical interference with the officer’s ability to complete his investigation. This reasoning runs afoul of the First Amendment protection recognized in Houston v. Hill (1987) 482 U.S. 451, 461-463 [96 L.Ed.2d 398, 412-413, 107 S.Ct. 2502]: “[Contrary to the city’s contention, the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers. ‘Speech is often provocative and challenging. . . . [But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.’ [Citation.] In Lewis v. City of New Orleans, 415 U.S. 130 [39 L.Ed.2d 214, 94 S.Ct. 970] (1974), for example, the appellant was found to have yelled obscenities and threats at an officer who had asked appellant’s husband to produce his driver’s license. Appellant was convicted under a municipal ordinance that made it a crime ‘ “for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty.” ’ Id., at 132 .... We vacated the conviction and invalidated the ordinance as facially overbroad. Critical to our decision was the fact that the ordinance ‘punishe[d] only spoken words’ and was not limited in scope to fighting words that ‘ “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” ’...[']□ The Houston ordinance is much more sweeping than the municipal ordinance struck down in Lewis. It is not limited to fighting words nor even to obscene or opprobrious language, but prohibits speech that ‘in any manner . . . interrupt[s]’ an officer. The Constitution does not allow such speech to be made a crime. The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” (Fns. omitted.)

I am persuaded by the reasoning set forth above that the imposition of criminal sanctions for the words spoken here would violate appellant’s constitutional rights under the First Amendment of the federal Constitution as well as article I, section 2, subdivision (a) of the California Constitution. I would therefore reverse the conviction. 
      
      Officer Huizar testified he knew he had a “buy” because the suspect asked him how much he wanted and did not walk away.
     