People v. Quiroga

• Decision Date: 22 June 1993
• Docket Number: No. A058769,A058769
• Citation: 16 Cal.App.4th 961,20 Cal.Rptr.2d 446
• Parties: The PEOPLE, Plaintiff and Respondent, v. Armando Chris QUIROGA, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 446

20 Cal.Rptr.2d 446

16 Cal.App.4th 961

The PEOPLE, Plaintiff and Respondent, v. Armando Chris QUIROGA, Defendant and Appellant.

No. A058769.

Court of Appeal, First District, Division 1, California.

June 22, 1993.

Certified for Partial Publication ^*

Review Denied Sept. 30, 1993.

Rudy Kraft, Cutten, under appointment by the Court of Appeal for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Ronald S. Matthias, Supervising Deputy Atty. Gen., Richard Rochman, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

NEWSOM, Associate Justice.

Armando Chris Quiroga (hereafter appellant) appeals a judgment of conviction after a jury trial for charges of possession of cocaine (Health & Saf.Code, § 11350, subd. (a)) and resisting a peace officer (Pen.Code, § 148). The court placed him on probation for 3 years and ordered him to serve 180 days in county jail with credits of 163 days for time served.

The prosecution rested its case chiefly on the testimony of Greg Stefani, a Ukiah Police Department officer. At about 2:30 a.m. on May 1, 1992, Officer Stefani responded to a report of a noisy party in an apartment complex near Ukiah. After waiting for two other officers to join him, he knocked, and a woman opened the door. He then saw another woman sitting on the floor as a man handed her "what appeared to ... be a marijuana cigarette." He could "smell the odor of marijuana." Walking into the room, he asked for the marijuana cigarette.

At this point, appellant stood up from a couch and started to walk into the hallway. "Mostly for safety reasons," Officer Stefani ordered him to sit back down on the couch. Appellant argued before complying with the order. In Stefani's words, "Mr. Quiroga was very uncooperative telling me that I needed a reason to be in the house, to get out of the house, that ... I needed a search warrant to come into the house." As appellant argued, Stefani noticed that he had his hands in his pocket and appeared to be "hanging onto something in his pocket...." He started "to pull his hand out" and then "put it back, and seemed very nervous." "Finally," appellant sat down and Officer Stefani directed his attention to the suspect he had seen with the marijuana cigarette.

Before long, appellant again caught Officer Stefani's attention. Stefani testified, "I looked over at Mr. Quiroga again. He was still telling us to leave the apartment and that we had no legal right to be there. And I saw with his right hand he was reaching between the couch cushions and the arm of the couch.... He seemed to be trying to hide his movements from me. As I would look at him he would pull his hand out, put it down...." Stefani ordered appellant to put his hands on his lap. Again he was "very uncooperative" but "finally" obeyed the order. Officer Stefani still didn't "feel comfortable" and ordered appellant to stand up. After refusing several times, he stood up as Officer Stefani "pulled on his arm" and went to a corner of the room where another officer could observe him.

Officer Stefani then looked under the cushion of the couch where appellant "had been reaching" and found a clear plastic bag with a white powder. Chemical analysis later showed that it contained .92 grams of cocaine. Although appellant denied any knowledge of the item, Officer Stefani placed him under arrest and took him to the police department and then to the county jail. Stefani acknowledged that appellant displayed no symptoms of cocaine use and had no drug paraphernalia on his person. He believed that the apartment was rented by the woman who had answered his knock.

After his arrest, appellant refused to give his name although he was asked repeatedly for personal identification "in the car, and then several times between there and the police department and at the police department." Stefani testified, "He refused to tell me his name. As I recall, several times I would ask him his name, and he would say Puddin' Tane, ask me again I'll tell you the same."

Upon arrival at the jail, appellant persisted in refusing to give his name, frustrating attempts to book his arrest in official police records. After "approximately 30 minutes," one of the correctional officers recognized appellant and confirmed his identity with a "picture from his file." Appellant then acknowledged his name for the first time. After learning his identity, the police ran a warrant check that revealed an outstanding warrant for a drug charge.

Before trial, defense counsel moved in limine to exclude any "testimony to the fact that [appellant's] arrest warrant from Shasta County was for a violation of Health and Safety Code section 11352" and requested an order prohibiting prosecution witnesses from referring "to the substance of the arrest warrant." The court ruled that it would "sanitize it completely" and permit no more than a reference to an arrest warrant. Accordingly, Officer Stefani testified the warrant check disclosed "that Mr. Quiroga was wanted on an outstanding out-of-county warrant, arrest warrant."

In this appeal, appellant maintains that there was no evidence to support the conviction of resisting a peace officer and presents a somewhat convoluted argument that the admission of evidence of the arrest warrant compels reversal of his felony conviction for possession of cocaine. The trial court admitted the evidence for its supposed relevance to the charge of resisting an officer (Pen.Code, § 148). Appellant argues that, because he "should never have been tried on the Penal Code section 148 charge[ ], evidence concerning the warrant should never have been introduced" in his trial for the felony charge. The implicit premise in the argument apparently is that the prosecution engaged in a kind of misconduct by bringing the misdemeanor charge solely to introduce prejudicial evidence into the felony trial. We hold that there was in fact evidence to support appellant's conviction for resisting a peace officer.

In analyzing the charge of resisting a peace officer, we see distinct constitutional and statutory issues with respect to (1) appellant's conduct in the apartment before his arrest, (2) his refusal to tell his name in the police car and police station while en route to jail, and (3) his refusal to disclose his identity in the booking interview at jail.

We find nothing in appellant's conduct before his arrest that might justify a charge of violating Penal Code section 148. It is true that he complied slowly with Officer Stefani's orders, but it surely cannot be supposed that Penal Code section 148 criminalizes a person's failure to respond with alacrity to police orders. Moreover, appellant possessed the right under the First Amendment to dispute Officer Stefani's actions. "[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers." (Houston v. Hill (1987) 482 U.S. 451, 461, 107 S.Ct. 2502, 2509, 96 L.Ed.2d 398.) Indeed, "[t]he 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." (Id. at pp. 462-463, 107 S.Ct. at 2510.) While the police may resent having abusive language "directed at them, they may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment." (Duran v. City of Douglas, Ariz. (9th Cir.1990) 904 F.2d 1372, 1378.)

Following appellant's arrest, the issue of constitutional protections shifts to the Fifth Amendment. It is true that certain First Amendment rights survive arrest and incarceration (Procunier v. Martinez (1974) 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224), but the area of custodial interrogation is specifically governed by the Fifth Amendment and should be analyzed solely under this constitutional provision even though the First Amendment protects similar values. (See Miranda v. Arizona (1966) 384 U.S. 436, 444, 86 S.Ct. 1602 1612, 16 L.Ed.2d 694.) The Fifth Amendment issues raised by Officer Stefani's questioning of appellant about his name en route to the jail are by no means simple, but we do not need to address them here. ¹ At this point, appellant's conduct did not violate Penal Code section 148 because it did not delay or obstruct a peace officer in the discharge of any duty within the meaning of the statute. The arrest had already been effected; appellant's noncooperation did not serve to delay or thwart his lawful detention. And it was still premature to ask the questions needed for booking appellant in jail. Although peace officers may sometimes find it convenient to fill out booking forms in the field, Officer Stefani had no compelling reason to complete the "booking sheet" until appellant arrived at jail, and in fact he did not attempt to do so until that time.

It is well established that, upon arrival at jail, the police could question appellant about his identity in a routine booking interview without implicating the Fifth Amendment. (People v. Hall (1988) 199 Cal.App.3d 914, 245 Cal.Rptr. 458; People v. Powell (1986) 178 Cal.App.3d 36, 39, 223 Cal.Rptr. 475; United States v. Taylor (4th Cir.1986) 799 F.2d 126, 128; United States v. McLaughlin (8th Cir.1985) 777 F.2d 388, 391; United States v. Downing (1st Cir.1981) 665 F.2d 404, 406.) Thus, in People v. Rucker (1980) 26 Cal.3d 368, 387, 162 Cal.Rptr. 13, 605 P.2d 843, the Supreme Court observed, "The Miranda safeguards are not necessary at a proper booking interview at which certain basic information is elicited having nothing to do with the circumstances surrounding any offense with which the defendant has been charged."

We face, however, an issue of first impression in inquiring whether appellant's refusal to reveal his identity in the booking interview violated Penal Code...