
    Appellate Department, Superior Court, Marin
    [Crim. A. No. 8050.
    Apr. 6, 1982.]
    THE PEOPLE, Plaintiff and Respondent, v. HARRY ROBERT ROBERTS, Defendant and Appellant.
    
      Counsel
    J. Ralph Thomas for Defendant and Appellant.
    Jerry R. Herman, District Attorney, and Gregory S. Jones, Deputy District Attorney, for Plaintiff and Respondent.
   Opinion

BREINER, P. J.

Defendant has appealed from a judgment of conviction, following trial by jury, of a violation of Penal Code section 148. For the reasons hereinafter stated, we affirm the judgment.

Facts

About 10 p.m. July 18, 1980, two uniformed California Highway Patrol officers, after observing a 1964 Mercedes automobile weaving into adjoining lanes on U.S. Highway 101 and weaving within its lane on Tiburón Boulevard, ordered the driver of the Mercedes to stop. The driver of the automobile, Dexter Roberts, who was defendant’s son, did so and exited the vehicle at the direction of the officers. Defendant, a 66-year-old man, and the driver’s wife, both of whom were passengers, remained in the Mercedes, for a while.

Although there was conflicting evidence as to what transpired thereafter, we will recite the pertinent facts in the light most favorable to respondent (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 925 [101 Cal.Rptr. 568, 496 P.2d 480]). Less than a minute after Officer Hal Nelson had explained to Dexter Roberts that he was stopped for suspicion of driving while under the influence of intoxicating liquor, defendant exited his son’s vehicle and asked Officer Larry Rogers what “they thought they were doing.” Officer Rogers told defendant the reason for the stop, whereupon defendant pointed a finger at him and uttered obscenities. Officer Rogers, who by that time believed defendont to be intoxicated, asked him to step back into his son’s vehicle. Defendant’s response was to utter more obscenities and to threaten the loss of the officers’ jobs.

While Officer Nelson was attempting to administer field sobriety tests to Dexter, defendant repeatedly interfered by attempting to stand between them, and by shouting further obscenities. The officers’ numerous requests to defendant that he return to the car went unheeded. Ultimately, defendant struck Officer Rogers, and a scuffle ensued, ending with a broken bone in Rogers’ hand and bruises and abrasions to defendant.

Defendant had been charged with having committed violations of Penal Code section 243, a felony, and of section 148, a misdemeanor. Following a preliminary hearing in municipal court, the magistrate found insufficient evidence for a holding as to the felony count, discharged defendant as to that charge, and held him to answer in that court for the misdemeanor Penal Code section 148 violation. Defendant’s conviction followed, and hence this appeal.

Issues

The principal issue is defendant’s contention that Penal Code section 148 is a specific intent crime, and that the trial court erred in giving CALJIC No. 3.30 (general criminal intent) and by failing to give CAL-JIC No. 3.31 (specific intent).

Defendant also contends that the evidence was insufficient to support the verdict, that the court prejudicially erred in failing to give the jury the definition of “obstruct,” and that the trial court inferentially reinstated the charge of battery that had been dismissed at the preliminary hearing.

Discussion

The last three issues may be disposed of without much effort and will be addressed at the outset.

Defendant’s contention that the trial court prejudicially erred in failing to instruct the jury regarding the term “obstruct” is founded upon a lengthy colloquy found on the pages of the reporter’s transcript. It appeárs that a juror, at a point following the commencement of deliberations, requested that the court define “obstruct” as used in Penal Code section 148. Some discussion was then had between the trial judge and both counsel in the presence of the jury, and later, after the jury had left the courtroom and had recommenced its deliberations. Following that discussion, defendant’s attorney stated to the court:

“You know, frankly, I think what my reaction to the whole thing is that this is not the time to be working out new instructions.

“What we ought to do is send the jury back out and tell them that they have been instructed in the law. If they wish to have evidence read or have some instructions given repeated — but to create at the 11th hour, especially in the heat of uncertainty of waiting for a jury to return a verdict, I think it’s kind of a dangerous thing.

“So I think I should make a record right now. I object to creating while the jury has already embarked upon deliberations a new set of instructions.” Thereupon, the trial judge advised the jury that he would not define “obstruct,” and that the jury should consider the common meaning of the word. There was no objection made then, or thereafter, by defense counsel.

The foregoing illustrates a classic case of invited error (People v. Phillips (1966) 64 Cal.2d 574, 580 [51 Cal.Rptr. 225, 414 P.2d 353]), and cannot be complained of at this stage of the proceedings. At any rate, the words used in section 148 are sufficiently definite in their terms so that a person of ordinary understanding could interpret them (In re Bacon (1966) 240 Cal.App.2d 34, 56 [49 Cal.Rptr. 322]); accordingly, we see no error in the trial court’s failure to define the word “obstruct.”

Defendant’s contention that the trial court erred in defining “assault” and “battery” has no merit, and it is difficult to see how he suffered any prejudice from such definition. Defendant was not convicted of assault or of battery, nor was the jury told that he could be; on the contrary, the jury was advised that he could not be so convicted. In view of the extensive testimony given by the witnesses concerning defendant’s actions at the scene of his arrest, it was appropriate to instruct the jury so that they could better understand that testimony (People v. Diebert (1953) 117 Cal.App.2d 410, 422 [256 P.2d 355]). Neither Jones v. Superior Court (1971) 4 Cal.3d 660 [94 Cal.Rptr. 289, 483 P.2d 1241] nor Walker v. Superior Court (1980) 107 Cal.App.3d 884 [166 Cal. Rptr. 209], both cited by defendant, is applicable. Those cases held that a defendant cannot later be prosecuted following a dismissal at a preliminary hearing with express factual findings having been made by the magistrate; as mentioned above, such is not the situation here. The record shows that all phases of the law applicable to the facts adduced were fully and correctly covered by the instructions, and singling out the one instruction defining “assault” and “battery” does not give rise to reversible error.

Defendant’s contention that the verdict is not supported by substantial evidence is bottomed on three propositions: First, that the evidence failed to show that defendant had the required specific intent to interfere; second, that the evidence was insufficient to sustain a finding that defendant obstructed the administration of the sobriety tests given to his son; and third, that his responsive conduct to the officers’ duties was justified because the officers were engaged in unlawful activities.

In deciding whether the evidence is insufficient to support a conviction, we must determine whether substantial evidence supports the jury’s conclusion (People v. Reilly (1970) 3 Cal.3d 421, 425 [90 Cal. Rptr. 417, 475 P.2d 649]). In other words, before the judgment of the trial court can be set aside for insufficiency of the evidence, it must clearly be shown that “on no hypothesis whatever” is there sufficient substantial evidence to support it (People v. Redmond (1969) 71 Cal.2d 745, 755 [79 Cal.Rptr. 529, 457 P.2d 321]).

Applying that strict standard, we have no alternative but to find that there was sufficient evidence to sustain the verdict. The brief statement of facts at the outset of this opinion displays substantial evidence that defendant interfered with and obstructed the duties of Officer Nelson in administering the sobriety tests and the duties of Officer Rogers as well. A further recitation of the facts is not necessary to support this conclusion.

Defendant argues that Officer Rogers acted unlawfully by ordering defendant to return to his automobile in order to preclude him from observing the roadside sobriety test. He also contends that Rogers’ orders were in violation of the California Highway Patrol manual’s policy of encouraging the witnessing of such tests. However, such “unlawfulness” is a far cry from establishing that the officers were engaged in unlawful activities and that the defendant was therefore at liberty to interfere with and obstruct their duties. The cases cited by defendant {In re Gregory S. (1980) 112 Cal.App.3d 764, 772 [169 Cal.Rptr. 540], Jackson v. Superior Court (1950) 98 Cal.App.2d 183 [219 P.2d 879], and People v. Curtis (1969) 70 Cal.2d 347 [74 Cal.Rptr. 713, 450 P.2d 33]), holding that physical resistance to a police officer’s unlawful act is not violative of section 148 are not pertinent, inasmuch as both officers here were indisputably engaged in lawful activities. (See In re Joe R. (1970) 12 Cal.App.3d 80, 86 [90 Cal.Rptr. 530].) Even if, arguendo, the officers erred in ordering defendant back to his car, and even if defendant had a right to observe the sobriety tests being given, defendant’s reactions were neither justified nor lawful and were in violation of Penal Code section 148.

Defendant’s principal contention, i.e., that Penal Code section 148 is a specific intent crime, presents a question of first impression; although no reported decision has held the section to require proof of specific intent, defendant asks this court to find that the trial court erred in not so instructing the jury. In support of his contention, defendant cites People v. Patino (1979) 95 Cal.App.3d 11 [156 Cal.Rptr. 815] and In re M. L. B. (1980) 110 Cal.App.3d 501 [168 Cal.Rptr. 57], both of which hold that Penal Code section 69 are crimes of specific intent. Defendant argues that since the crimes described in sections 69 and 148 of the Penal Code are in pari materia (People v. Buice (1964) 230 Cal.App.2d 324, 335 [40 Cal.Rptr. 877]), we should find that section 148 requires proof of specific intent.

An understanding of the issue posed by defendant requires an analysis of the two sections and a determination of the intent of the Legislature in defining those crimes. Penal Code section 69 reads as follows: “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 . .. .” Section 148, on the other hand, states: “Every person who wilfully resists, delays, or obstructs any public officer, in the discharge or attempt to discharge any duty of his office, ... is punishable . . . . ”

Although the words “specific” and “general” intent are difficult to apply, the Supreme Court has cleared the interpretive path for us: “When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant' intended to do the proscribed act. This intention is deemed to be a general criminal intent.

When the definition refers to defendant’s intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.” (People v. Hood (1969) 1 Cal.3d 444, 456-457 [82 Cal.Rptr. 618, 462 P.2d 370].) The difficulty with defendant’s assessment is that he fails to discern that section 69 contains two distinct offenses (In re M. L. B., supra, 110 Cal.App.3d at p. 503); the first part of the section defines a specific intent crime, whereas the second portion constitutes a general intent offense. This distinction is important in determining whether Patino and In re M. L. B., supra, are applicable, since both cases involved fact situations showing that the defendants in those cases committed acts involving threats or violence with a specific intent to deter the officers from performing their duties. Both cases, therefore, concerned themselves with the first part of Penal Code section 69 — the specific intent portion. For that reason, we do not find that the language in those two cases applies here and the cases are therefore distinguishable.

The legislative definition of the offense proscribed by section 148, as in the offense described in the second portion of section 69 “consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence” (People v. Hood, supra, 1 Cal. 3d 444) and it is therefore a general intent crime. The use, by the Legislature, of the word “wilfully” in section 148 and the word “knowingly” in section 69 does not convert either section into a specific intent crime. We must ascribe to the Legislature its knowledge that in situations in which it intends to require proof of specific intent, it has done so using language that is either precise or is clearly susceptible of such interpretation. It has not done so with Penal Code section 148, and this court is unable to insert a legislative intention where none appears.

For the foregoing reasons, we see no error in the trial court’s having instructed the jury that they need only find proof of a general criminal intent.

For all the reasons discussed above, we affirm the judgment.

McGuire, J., and Menary, J., concurred.  