Robles

*Supp. 4 Opinion

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…

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 *Supp. 8 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…