People v. Andre P.

Respondent does not challenge appellant’s standing. We reject, post, appellant’s contention that section 148 is overbroad on its face and therefore, unconstitutional. As will be explained in the body of this opinion, that will resolve the question of appellant’s standing to test the constitutionality of section 148 on these facts. Thus, we do not further discuss, or decide, in this action, the issue of appellant’s standing to raise a constitutional issue on appeal without first having preserved the issue in the trial court.

B. Does Appellant Have Standing to Challenge the Statute for Overbreadth Where the Actual Application Is Not Constitutionally Protected?

The focus of appellant’s challenge to section 148 is his contention that it is constitutionally overbroad, significantly impinging on the right to free speech. While appellant does not, and clearly could not, reasonably maintain his conduct constituted speech, he argues the overbreadth of the statute renders it facially invalid. As such, he concludes that since the statute is invalid, his conviction must be reversed.

Normally, the traditional evaluation of constitutional challenge follows the principle “that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in situations not before the Court. [Citations.]” (Broadrick v. Oklahoma (1973) 413 U.S. 601 , 610 [ 37 L.Ed.2d 830 , 839, 93 S.Ct. 2908 ].) Appellant, however, relies upon the proposition that a challenge for overbreadth reaching protected First Amendment activity does not require the activity in question be protected.

“Such review is permitted in these circumstances [i.e., when a law is challenged on its face as substantially encroaching on First Amendment

The standing question in this case, however, is not readily resolved until the ultimate question of overbreadth is resolved.

“Technically, overbreadth is a standing doctrine that permits parties in cases involving First Amendment challenges to government restrictions on noncommercial speech to argue that the regulation is invalid because of its effect on the First Amendment rights of others not presently before the Court. [Citation.] Whether the appellee may make use of the overbreadth doctrine depends, in the first instance, on whether or not it has a colorable claim that the ordinance infringes on constitutionally protected, noncommercial speech of others. . . .” (Hoffman Estates v. Flipside, Hoffman Es

The Supreme Court explained its rationale very succinctly in Broadrick:

“[T]he Court has altered its traditional rules of standing to permit—in the First Amendment area—‘attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.’ Dombrowski v. Pfister, 380 U.S., at 486 . Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” (Broadrick v. Oklahoma, supra, 413 U.S. at p. 612 [37 L.Ed.2d at p. 840].)

In order to demonstrate standing to challenge the facial validity of section 148 on the instant facts, appellant must demonstrate that the alleged overbreadth is not only real, but substantial as well. That is, does section 148 reach a substantial amount of constitutionally protected conduct? (Houston v. Hill (1987) 482 U.S. 451 , 458 [ 96 L.Ed.2d 398 , 409-410, 107 S.Ct. 2502 ].) We address that issue now.

I

s Penal Code Section 148 Constitutionally Overbroad Under the First Amendment?

Appellant relies exclusively on Houston v. Hill, supra, 482 U.S. 451 , where the United States Supreme Court held a municipal ordinance that made it unlawful to interrupt a police officer in the performance of his or her duties was unconstitutionally overbroad under the First Amendment. (I d. at p. 467 [96 L.Ed.2d at pp. 415-416].) Specifically, the ordinance made it “ ‘unlawful for any person to assault, strike or in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty, or any person summoned to aid in making an arrest.’ ” (Id. at p. 455, fn. omitted [96 L.Ed.2d at p. 408].) The court rejected the “city’s principal argument . . . that the ordinance does not inhibit the exposition of ideas, and that it bans ‘core criminal conduct’ not protected by the First Amendment. . . .” (Id. at p. 459 [96 L.Ed.2d at p. 410].)

“First,” the court held, “the enforceable portion of the ordinance deals not with core criminal conduct, but with speech. As the city has conceded, the language in the ordinance making it unlawful for any person to ‘assault’

Attempting an analogy to the preemption conceded in Houston v. Hill, appellant seizes on section 148’s language defining punishment “when no other punishment is prescribed.” Listing other statutes criminalizing various physical acts against police officers, he concludes “[a] substantial portion of the remaining conduct embraced by section 148 is constitutionally protected speech.”

Appellant frames his argument as follows: “Section 148 is similar to an ordinance found unconstitutionally overbroad by the court in Houston v. Hill. As with the Houston ordinance, section 148 is only applicable when ‘no other punishment is prescribed.’ Conduct such as striking a police officer (§ 243), assault on a police officer (§§ 245, subd. (b), 417.8), resisting arrest (§§ 834a-835a), or disobedience of a peace officer (Veh. Code, § 2800) is not within the ambit of section 148. A substantial portion of the remaining conduct embraced by section 148 is constitutionally protected speech. Section 148 subjects any person to criminal prosecution who ‘willfully resists, delays, or obstructs’ a police officer, while the Houston ordinance made it criminal to ‘oppose, molest, abuse or interrupt any police officer [sic].’ Although the words are different, they are similar in meaning. ‘Oppose’ may be equated with ‘resist’ and ‘obstruct,’ while to ‘delay’ is similar to ‘interrupt.’ Such conduct as arguing, talking, interfering, failing to remain quiet, verbally abusing, and walking through a scene had been relied upon to arrest individuals under the Houston ordinance. [Citation.] These activities fit just as easily in the section 148 proscription against resisting, delaying or obstructing a police officer.”

Appellant acknowledges that a statute may be interpreted narrowly to avoid overbreadth. If “ ‘the terms of a statute are by fair and reasonable interpretation capable of a meaning consistent with the requirements of the Constitution, the statute will be given that meaning, rather than another in conflict with the Constitution.’ ” (San Francisco Unified School Dist. v. Johnson (1971) 3 Cal.3d 937 , 948 [ 92 Cal.Rptr. 309 , 479 P.2d 669 ], quoting County of Los Angeles v. Legg (1936) 5 Cal.2d 349 , 353 [ 55 P.2d 206 ].) However, he maintains the statute cannot be saved by a narrow construction in that section 148 uses the phrase “resists, delays, or obstructs,” and that those terms have a plain meaning which cannot reasonably be construed to exclude constitutionally protected speech as indicated by appellant’s definitional source. Appellant notes:

“According to the Random House Dictionary of the English Language (2d ed. 1987) at 1359, ‘oppose’ means, inter alia, ‘to act against or provide

resistance to . . . .’ Among its synonyms is ‘resist.’ ‘Delay’ means to ‘impede the progress of; retard; hinder. . . .’ (Id. at p. 526.) ‘Interrupt’ is defined, inter alia, as ‘to cause a break or discontinuance; interference with action or speech. . . .’ (Id. at p. 998.) To ‘obstruct’ means ‘to interrupt, hinder or oppose the passage, progress, course, etc. of.’ (Id. at p. 1338.)”

Thus, in effect, appellant argues that words alone reasonably can be construed as sufficient to satisfy the elements of resistance or delay or obstruction. We perceive this argument as meaning that a person could engage in speech unaccompanied by conduct that would constitute “resistance” to an officer’s performance of duty or delay or obstruct that performance. From this construct, appellant concludes the statute encompasses constitutionally protected speech and is overbroad in its reach. We conclude it is not the statute which overreaches, it is appellant.

At the inception, analysis of appellant’s argument must focus upon what the statute clearly encompasses. Section 148 nearly always has been applied to a wide range of conduct beyond speech. (See In re Gregory S., supra, 112 Cal.App.3d 764 [walking away from officer attempting detention followed by struggle]; People v. Allen, supra, 109 Cal.App.3d 981 [running and hiding from officers attempting valid detention]; In re Bacon (1966) 240 Cal.App.2d 34 [ 49 Cal.Rptr. 322 ], disapproved on another point in In re Brown (1973) 9 Cal.3d 612 , 624 [ 108 Cal.Rptr. 465 , 510 P.2d 1017 ] [going limp upon arrest]; People v. Derby (1960) 177 Cal.App.2d 626 [ 2 Cal.Rptr. 401 ] [struggling with officers breaking up fight]; People v. Bugg (1947) 79 Cal.App.2d 174 [ 179 P.2d 346 ] [cursing and kicking officers quelling disturbance]; People v. Randolph (1957) 147 Cal.App.2d Supp. 836 [ 306 P.2d 98 ] [struggle following failure to produce license or identification after vehicle stop].)

As stated in Houston v. Hill, supra, 482 U.S. 451 , “[o]nly a statute that is substantially overbroad may be invalidated on its face. . . .” (Id. at p. 458 [96 L.Ed.2d at p. 410].) Appellant makes no empirical showing that cases involving verbal communications, let alone protected speech, comprise a substantial part of the universe of section 148 prosecutions. In contrast, Hill introduced extensive evidence of the unconstitutional application of the ordinance to protected speech. (Id. at p. 457, fn. 5 [96 L.Ed.2d at p. 409].) In Houston the court said: “In concluding that the ordinance was overbroad, the Court of Appeals did not err in reviewing evidence ignored by the District Court concerning the application of this ordinance, and in concluding that this evidence demonstrated a significant potential for unconstitutional application of the ordinance.” (Id. at p. 458, fn. 6 [96 L.Ed.2d at p. 410], italics in original.)

“In a facial challenge to the overbreadth and vagueness of a law,5 a court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct.6 If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications. A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. . . .” (455 U.S. at pp. 494-495 [71 L.Ed.2d at p. 369], fn. 7 omitted.) Footnotes 5 and 6 provide:

“ 5 A ‘facial’ challenge, in this context, means a claim that the law is ‘invalid in toto—and therefore incapable of any valid application.’ Steffel v. Thompson, 415 U.S. 452 , 474 (1974). In evaluating a facial challenge to a state law, a federal court must, of course, consider any limiting construction that a state court or enforcement agency has proffered. Grayned v. City of Rockford, 408 U.S. 104 , 110 (1972).

“ 6 In making that determination, a court should evaluate the ambiguous as well as the unambiguous scope of the enactment. To this extent, the vagueness of a law affects overbreadth analysis. The Court has long recognized that ambiguous meanings cause citizens to ‘ “steer far wider of the unlawful zone” . . . than if the boundaries of the forbidden areas were clearly marked.’ Baggett v. Bullitt, 377 U.S. 360 , 372 (1964), quoting Speiser v. Randall, 357 U.S. 513 , 526 (1958); see Grayned, supra, at 109 ; cf. Young v. American Mini Theaters, Inc., 427 U.S. 50 , 58-61 (1976).”

In essence, words in a statute that are vague may reach protected activity, and in that sense, lead to and support a determination of overbreadth.

In substance, appellant is arguing that the words “resist, delay” and “obstruct” are vague and reasonably may be construed as encompassing protected conduct. However, appellant creates an ambiguity where it does not reasonably exist.

“Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if

On a basic level, an evaluation that a statute is vague concludes “men of common intelligence must necessarily guess at its meaning . . . .” (Connally v. General Const. Co. (1926) 269 U.S. 385 , 391 [ 70 L.Ed. 322 , 328, 46 S.Ct. 126 ].) We seriously question whether a person evaluating this statute to divine the conduct proscribed would conclude that it was directed to or substantially encompassed speech as opposed to conduct. More likely, the reaction to appellant’s interpretation of the reach of the statute would be that only a lawyer would have come up with that construction.

Section 148 deals with core criminal conduct. To characterize it as a statute broadly criminalizing speech directed to an officer or aimed at speech is simply wrong. Section 148 is not substantially overbroad. This is not to say that one could not trudge the path appellant lays out, but that his conclusion is unlikely and the reality of such application minuscule. The remedy for an overbroad construction is invalidation of the statute or limitation to remove the threat. The court so noted in Broadrick v. Oklahoma, supra, 413 U.S. at page 613 [37 L.Ed.2d at pages 84-841], in evaluating standing in overbreadth cases:

“The consequence of our departure from traditional rules of standing in the First Amendment area is that any enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression. Application of the over-breadth doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort. Facial over-breadth has not been invoked when a limiting construction has been or could be placed on the challenged statute. [Citations.] Equally important, overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct. . . .”

Appellant demonstrates no instance where a small possibility of a statute arguably being applied to protected conduct should result in invalidation or speculative restriction of the statute as a result of anticipation. For example, that a person who bums the flag of our country might be

Otherwise stated: “It may be that such restrictions [under administrative rules] are impermissible and that § 818 may be susceptible of some other improper applications. But, as presently construed, we do not believe that § 818 must be disregarded in toto because some person’s arguably protected conduct may or may not be caught or chilled by the statute. Section 818 is not substantially overbroad and is not, therefore, unconstitutional on its face.” (Broadrick v. Oklahoma, supra, 413 U.S. at p. 618 [37 L.Ed.2d at pp. 843-844].)

“Words inevitably contain germs of uncertainty . . . .” (Broadrick v. Oklahoma, supra, 413 U.S. at p. 608 [37 L.Ed.2d at p. 837].) Recognition of this fact assumes words and statutes will be given their ordinarily understood meaning. Appellant’s argument rests itself upon a narrow ledge. We should not strike a law for overbreadth unless it lends itself to a significant amount of protected conduct. The fact that a tenuous interpretation may reach protected conduct does not compel the remedy of invalidation. “If a court were to strike down a narrowly focused law for the sake of dissipating its minimal chilling effect, the holding would effectively foreclose the field to legislation.” (Note (1970) 83 Harv.L.Rev. 844 , 859.)

We reiterate the words of Justice Brennan in Houston v. Hill, supra, 482 U.S. 451 : “Only a statute that is substantially overbroad may be invalidated on its face. [Citations.] ‘We have never held that a statute should be held invalid on its face merely because it is possible to conceive of a single impermissible application ....’” (Id. at p.458 [96 L.Ed.2d at p. 410].) We do not view section 148 as reaching a substantial amount of protected conduct; therefore we do not find it overbroad.

In light of this conclusion, appellant’s activity must be assessed on the basis of whether the statute clearly pertains to his conduct. We find it does and he does not argue otherwise. If the statute had been applied in the