People v. Cooks

• Decision Date: 18 April 1967
• Docket Number: Cr. A
• Citation: 58 Cal.Rptr. 550
• Court: California Superior Court
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Willie Louis COOKS, Defendant and Respondent. 10520. Appellate Department, Superior Court, San Diego County, California

Page 550

58 Cal.Rptr. 550

The PEOPLE of the State of California, Plaintiff and Appellant, v. Willie Louis COOKS, Defendant and Respondent.

Cr. A. 10520.

Appellate Department, Superior Court, San Diego County, California.

April 18, 1967.

Edward T. Butler, City Atty., by David I. Berman, Deputy City Atty., for plaintiff and appellant.

Gostin & Katz, by Louis S. Katz, San Diego, for defendant and respondent.

OPINION

BY THE COURT:

Defendant was arrested and went to trial--before a jury--for a violation of Penal Code section 148 (resisting, delaying, or obstructing an officer in the discharge of his duties). At the close of the People's case the defendant moved for a dismissal, expressly waiving jeopardy. The judge dismissed the case, stating:

'* * * Section 148 of the Penal Code, does not cover the fact situation in this case; that the First Amendment to the United States Constitution protects the right of free speech unless there is specific language in a Statute that clearly restricts, in the valid exercise of the police power, this type of speech.' The People have appealed, as they have a right to do. (Penal Code, section 1466 1(a).)

Defendant was a bartender working in a San Diego nightclub. At 1:45 a.m. a police officer entered the bar searching for a suspect in a robbery which had just occurred (an hour and a half before). He observed a person sitting at the bar who resembled a photograph of the suspect. As the officer approached this patron, defendant approached from the other side of the bar. The officer spoke to the patron, and the following occurred:

'A Yes; I said, 'May I see your identification, please?'.

Q Tell us what happened at that point?

A At the time I was speaking--before I had a chance to finish my sentence, Mr. Cooks was at the other side of the bar directly opposite me and the subject I was asking for identification. He asked me what I wanted.

THE COURT: Who, Mr. Cooks asked you?

THE WITNESS: Mr. Cooks, yes, your Honor.

BY MR. PARKER:

Q Did you say anything to Mr. Cooks?

A No, I ignored his first request.

Q Then what did you do?

A I again asked Mr.--the subject turned out to be a Mr. Hayes--the subject I was asking for identification. I then asked him for identification, repeating my question. Mr. Cooks again repeated his question, and asked me what I wanted. I raised my hand in this manner (indicating) to indicate that I did not want to talk to him; and I stated, 'This doesn't concern you.' I again asked this man for identification. The man then leaned forward against the bar, and reached back towards his back pocket--the back of his pants. Mr. Cooks then reached across the bar, and held his arm and said 'No, don't show him identification until he tells us what he wants in here.' Mr. Cooks then went on to say that he worked in this bar, and it was his business what went on in the bar, and that he wanted to know what I was doing in the bar. He told Mr. Hayes not to identify himself until I had told him what I wanted in there.

Q Then tell us what happened?

A Well, I then told Mr. Hayes--stated 'I am looking for a man who is wanted for robbery and auto theft. I have a photograph of the man in my pocket. You resemble this photograph, and I would like to ascertain if you are the man I am looking for.' Then Mr. Cooks at that time was listening very intently. I again told Cooks, 'Now don't interfere with me.' I said, 'This should just take a minute. If he is the man I am looking for, fine. If he isn't, that will also be fine. I can leave.' He then told Mr. Hayes not to show me identification.

Q This was after you had told him what you were doing there?

A Yes; and Mr. Cooks then made some statement regarding--if I wanted to talk to any of his customers, I should clear with him first.

Q Were you in uniform, Officer?

A Yes, I was.

Q What did you do after this conversation you had with Mr. Cooks involving what you were doing there?

A I then turned my attention again to Mr. Hayes at this time. I thought that he possibly was--

BY MR. PARKER:

Q What did you do?

A I turned to Mr. Hayes, and again asked him for identification; and again Mr. Cooks loudly still told Mr. Hayes not to show me identification.

Q What did you do after that?

A I told Mr. Hayes that if he refused to show me identification, I would be forced to arrest him.

Q Then what happened?

A I again asked him for identification, and he again refused to show it to me, stating that he would not do so until the bartender told him it was all right. During this conversation, Cooks kept up a constant chatter, telling he man 'Don't show him identification, don't show him identification.'

Q What did you do then?

A I then placed Mr. Hayes under arrest and led him out of the bar to my parked Police Vehicle.'

(Rpr.Tr., pages 6 to 9.)

Later testimony made it clear that defendant in reaching across the bar did not actually hold the suspect's arm but merely gestured toward it. Neither party here contends otherwise.

Defendant now argues that a person cannot violate section 148 merely by advising a third person not to cooperate; that the statute was not intended to punish speech; and, that the statute is unconstitutional either as being too vague and uncertain, or as an abridgment of free speech rights.

Section 148 is not limited to active resistance and force by a defendant, nor is it vague or uncertain. (In re Bacon, 240 Cal.App.2d 34, at pages 51 and 56, 49 Cal.Rptr. 322.)

Of course, the finding that a statute is not vague and uncertain does not foreclose the possibility that some...