Petition for Writ of Certiorari — Nolan v. Boeing Co.

| Supreme Cor, US

donnese dad

No. OFFICE GS TE CLERK

In The

Supreme Court of the United States

October Term, 1990

—

THAKORBHAI L PATEL,

Petitioner,

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent

_

—_

Petition For Writ Of Certiorari

To The Court Of Appeal

For The State Of California,

Fourth Appellate District, Division Two

>

PETITION FOR WRIT OF CERTIORARI

— — ———_- o—_- — —

Dre Tinton, Eso

234 N. Arrowhead Avenue

San Bernardino, CA 92408

Telephone: (714) 825-7350

Attorney for Petitioner

— —

COCEL) LAW S20) PENT. CO. @e eee

CH CALL CORLEET a) 34) Jee)

QUESTION PRESENTED FOR REVIEW

Where oral utterances are offered by the prosecution

as the sole basis for delay or obstruction of a public

officer engaged in the discharge of some official duty, can

a criminal conviction for delaying or obstructing said

officer be grounded upon mere general criminal intent

without any showing that the accused harbored a specific

intent to obstruct or delay the officer?

Pages

QUESTION PRESENTED FOR REVIEW ............... i

TABLE OF cocατπ 7 Ns uin

TABLE OF AUTHORITIES ........................ iv-vi

INTRODUCTION .. 1

OPINIONS BELOW 2

2 . „„... 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS NO t 3

STATEMENT OF THE ass 3-4

STATEMENT OF FACTS cs 5-11

HOW THE FEDERAL QUESTION IS PRESENTED . 11-12

REASONS FOR GRANTING THE WRIT.......... 12-13

ane. „„ „%ĩ]1

. WHERE FREE SPEECH IS IN ISSUE, ORAL

UTTERANCES ADVANCED BY THE STATE AS A

BASIS FOR DELAY OR OBSTRUCTION OF A

PUBLIC OFFICER ENGAGED IN THE DIS-

CHARGE OF AN OFFICIAL DUTY MUST BE

COUPLED WITH SPECIFIC INTENT TO DELAY

OR OBSTRUCT THE OFFICER, IN ORDER TO

SUSTAIN A CRIMINAL CONVICTION

GROUNDED UPON SPOKEN REMARKS.....__ 13-18

iu

TABLE OF CONTENTS - Continued

Page

Il. THE TRIAL JUDGE MUST INSTRUCT THE

JURY SUA SPONTE THAT SPECIFIC INTENT

TO DELAY OR OBSTRUCT A PUBLIC OFFICER

IS A REQUIRED ELEMENT OF DELAYING OR

OBSTRUCTING A PUBLIC OFFICER, WHERE

ORAL UTTERANCES ARE PRESENTED AS

THE SOLE BASIS FOR SUCH POSSIBLE DELAY

Gone. cccccccccccccccsccccs 18-20

III. THE TRIAL COURT'S FAILURE TO PROPERLY

INSTRUCT THE JURY ON THE REQUISITE

INTENT REQUIRED FOR A CRIMINAL CONVIC-

TION INFECTED JURY DELIBERATIONS TO

SUCH AN EXTENT THAT PETITIONER WAS

DEPRIVED OF A FAIR TRIAL CONCERNING

ALL COUNTS CHARGED AGAINST HIM..... .21-22

a ö e

e on wees App 1-App. 22

iv

TABLE OF AUTHORITIES

Cases

American Rai Express Co. v Levee, 263 US. 19,

20-21, 68 L.Ed. 140, 143, 44 S.Ct. 11, 12 (1923)..... 2

Duran v. 1 ae Aru. 904 Fd 1372, 1378

eee ee cnbesece 16

Flower v. United States, 407 U.S. 197, 198-199, 32

L.Ed.2d 653, 656, 92 S.Ct. 1842, 1843 (1972)....... 16

Houston v. Hill, 482 U.S. 451, 96 LEd 2d 398, 107

,, ̃ Ae oe 12, 15, 18

Long v Valentino, 216 Cal.App.3d 1287, 1295 (1989) .... 16

People v Baker, 42 Cal.2d 550, 576, 268 Pad 705, 721

SUPE esc ceecevcteveccucavccsceuesedestecccees: oo

People v Bernhardt, 222 Cal.App.2d 567, 593 (1963) 21

v. Bevins, 54 Cal.2d 71, 77-78, 351 Pad 776,

—— ͤ y WVỹh. 19

People v. Hamilton, 33 Cal.2d 45, 51, 198 Pad 873,

877 (1948)....... : see ae

People v. Kirkes, 39 Cal.2d 719, 729, 249 Pad 1, 7

— ͤ—.. Sales ie Rees he RPE 21, 22

People v. Perry, 79 Cal.App.2d Supp. 906, 907

— ³ A A cucweidaneece: 14

People v. Putnam, 20 Cal. 2d 885, 890, 129 Pad 367,

rr / —

People v. Robinson, 61 nenne 395, 392 Pad 970,

984 (1964)... occa

P , 22 Cal.2d 787, 807, 141 Pad 722,

2 (1943). . 20

TABLE OF AUTHORITIES - Continued i

0 Be

People v. Zerillo, 36 Cal 2d 222, 232-233, 223 Pad

. W o 22

Ed. Assn. v. Local Ed. Assn., 460 U.S. 37,

. 74 L.Ed.2d 794, 804, 103 S.Ct. 948, 954 (1983)... 16

Roth v. United States, 354 U.S. 476, 488, 1 L.Ed.2d

1498, 1509, 77 S.Ct. 1304, 1311 (165% 17

Stanley v. Georgia, 394 US. 557, 563, 22 L.Ed.2d

aa Sea sen 89 S.Ct. 1243, 1247 (1969) ........... 17

Terminiello v C . 337 US. 1, 4, 93 L.Ed. 1131,

11M, 69 S.Ct. r 15

United Steelworkers of America d Sadlowski, 457 US.

102, 111, 72 L.Ed.2d 707, 715, 102 S.Ct. 2339,

2345 (1982), den 459 US. 899, 74 L_Ed.2d

DD. 1

Cc. N- NAI Provisions

California Constitution: Article I. section 2.......... 16

California Constitution: Article I. section 18 20

California Constitution: Article VI. section 4% 19

California Constitution: Article VI. section 13 9. 20

United States Constitution: First Amendment

Nein 3, II. 12. 15, 16

United States Constitution: Sixth Amendment J. 20

United States Constitution: Fourteenth Amend-

ment „„ Tae 3, II. 12. 15, 16, 20

vi

TABLE OF AUTHORITIES - Continued

Page

STATUTES

California Penal Code section 1. passim

California Penal Code section 266h................... 3

California Penal Code section 26 3

California Penal Code section 316.................... 3

California Penal Code section 66. 3

California Penal Code section 1237(a)................ 4

Title 28, United States Code, section 1257(3).......... 2

Court Rutes

Rules of the Supreme Court of the United States:

1 .be, 2

Onun AuTHoriries

. b.... eee 3, 17

. ... ñ ᷑ræræ 3. 17

—

In The

Supreme Court of the United States

October Term, 1990

—

THAKORBHAI L PATEL,

Petitioner,

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

*

Petition For Writ Of Certiorari

To The Court Of — —

For The State Of Cal ia,

Fourth Appellate District, Division Two

oo

PETITION FOR WRIT OF CERTIORARI

—

Petitioner, THAKORBHAI L PATEL, respectfully prays

that a writ of certiorari be issued to review the judgment and

opinion of the California Court of Appeal, Fourth Appellate

District, Division Two, issued on September 11, 1990, affirm-

ing the judgment of the trial court which was pronounced on

August 31, 1989. A petition for review was denied in a

nonunanimous ruling filed on November 28, 1990. The

remittitur was issued on December 3, 1990.

o—

2

OPINIONS BELOW

The opinion of the California Court of Appeal,

Fourth Appellate Ditrict, Division Two, affirming the

judgment of the San Bernardino County Superior Court,

appears as APPENDIX | attached to this petition. A copy

of the California Supreme Court's order denying peti-

tioner’s petition for review is here attached as APPEN-

DIX 2. The remittitur issued by the California Court of

Appeal, Fourth Appellate District, Division Two, is

appended hereto as APPENDIX 3.

*

JURISDICTION

The California Court of Appeal, Fourth Appellate

District, Division Two, entered its judgment and opinion

below in this case on September 11, 1990. On October 22.

1990 petitioner filed a timely petition for review with the

California Supreme Court. On November 28, 1990 the

petition for review was denied by a divided California

Supreme Court. Title 28, United States Code, section

1257(3) confers jurisdiction on the Court in this case

Where the highest state court has jurisdiction to review

a decision of a lower state court, but refuses to do so, the

time for petitioning for a writ of certiorari runs from the date

of the higher court s refusal to review. (Amwrican Railway

Express Co. u Lever, 263 US. 19, 20-21, 68 L.Ed. 140, 143, 44

S.Ct. 11, 12 (1923). Since this petition is being filed within 90

days of the California Supreme Court's denial of review, this

petition is timely brought. (Rule 13, Rules of the Supreme

Court of the United States.)

3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First and Fourteenth Amendments to the United

States Constitution and California Penal Code section 148

are chiefly involved, along with the Sixth Amendment to

the United States Constitution. California Jury Instruc-

tions CALJIC 3.30 and 3.31 are also in issue. CALJIC 3.30

as given is reproduced as APPENDIX 4 which follows.

CALJIC 3.31 as given is reproduced as APPENDIX 5

attached hereto.

—

STATEMENT OF THE CASE

On February 10, 1988 petitioner Thakorbhai L. Patel

was arrested and subsequently charged with pandering

(Cal. Pen. Code §266i) and attempted pimping (Cal. Pen

Code §§664/266h). After a preliminary hearing was con-

ducted in the San Bernardino County Municipal Court.

petitioner was held to answer, and the matter advanced

to the San Bernardino County Superior Court as Case No

SCR-473&4, after which motions were heard.

On April 20, 1988 petitioner Thakorbhai L. Patel was

arrested and subsequently charged with pimping (Cal

Pen. Code §266h), maintaining a disorderly house (Cal

Pen. Code §316), and resisting, delaying, or obstructing a

public officer (Cal. Pen. Code §148). Petitioner was held

to answer after preliminary hearing on this case, and the

matter proceeded beyond motions in the San Bernardino

County Superior Court as Case No. SCR-48604

An amended information was subsequently filed

incorporating all of the above charges (Clerk s Tran-

script’: pp. 207-209), after the San Bernardino County

' Hereinafter abbreviated “CT.”

Superior Court ordered both cases consolidated for trial

as Case No. SCR-47384 (see Reporter's Transcript? |: p. 8,

L. 12-21).

Petitioner was tried for all of the above alleged

offenses on May 16, 17, and 18, 1989, and he was found

guilty of all five counts by a jury (C. T.: pp. 205, 206,

210-219.) He was sentenced on August 31, 1989. (C.T.: pp.

304-305.) On September 22, 1989 petitioner's motion to

post bond in lieu of serving jail time pending a final

result on appeal was granted by the San Bernardino

County Superior Court (C. T. p. 309), following peti-

tioner’s timely filing of a notice of appeal on September

20, 1989 of the judgment of convictions against him in the

two consolidated cases.

The judgment appealed from, appealable per Califor-

nia Penal Code section 1237(a), was affirmed by the court

of appeal on September 11, 1990. After petitioner timely

sought review of that decision by the California Supreme

Court on October 22, 1990, his petition for review was

denied on November 28, 1990, with two justices stating

that they were of the opinion that the petition should

have been granted. (See APPENDIX 2 attached.) This

petition for certiorari timely follows the final action of

California’s state court of last resort. The remittitur was

issued on December 3, 1990. (See APPENDIX 3 attached.)

—

2? Hereinafter abbreviated RT

STATEMENT OF FACTS

Petitioner was the owner of the Palms Motel, which

had been frequented by Emma Henderson for years. (R.T.

I: p. 134, L. 19 - p. 137, L. 2.) Sometimes she rented a

room by the hour there. (R.T. I p. 137, L. 26 p. 138, L

12.) At times she went to the Palms Motel just to engage

in prostitution. (R.T. I: p. 139, L. 9-19.) She had rented a

room from petitioner on previous occasions. (R.T. |: p.

142, L. 14-18.) She was not told that she could have a

particular room, and either put money on the counter or

dropped it on the floor, but did not think she gave it to

petitioner personally. (R.T. I p. 144, L. 25 - p. 145, L. 4)

She may have gone to the motel more than once a week

on unnamed and unnumbered occasions. (R.T. I p 145, L.

15-17.) Sometimes she went to the Palms Motel for other

than work purposes. (RT. I p. 147, L. 9-12.) She never

told petitioner what intent she had for room use when

she asked for one, and often used one just to sleep or

shower. (R.T. I p. 148, L. 8-20.) She had heard that pros-

titution was not allowed on the premises of the Palms

Motel. (R.T. I p. 150, L. 25 - p. 151, L. 4.) Most of the time

she would fill out a registration card when she would

rent a room there (RT. I p. 152, L. 9-11.)

Ms. Henderson was a convicted felon who had

served time in state prison for a drug offense. (RT. I: p

147, L. 13-20.) In April of 1988 she agreed to engage in

sexual activity with William Sheble and another man.

(RT. I: p. 140, L. 8-10.) On entering the office of the Palms

Motel to get a room, petitioner told her that the men she

was with were police (RT. I p. 140, L. 11-22.) She

obtained a total of $12.00 from Officer Sheble but did not

obtain a room key. (RT I: p. 140, L. 23 p 141, L 12.) On

this April 20, 1988 date she did not find out what hap-

pened to the $12.00 after she brought it to the motel

office. (R.T. I p 149, L. 24-26.) Emma Henderson said that

she did not suggest going to the Palms Motel. (RT. I p.

152, L. 19-22.) Doing so was the officers’ idea. (RT I p

146, L 24 - p 147, L. 2.) She admitted to pleading guilty

to a charge of prostitution sometime in the past. (RT. |: p

142, L 6-8)

iam Sheble testified that he was a sheriff's officer

with San Bernardino County working as a vice officer.

(R.T. 1 p 235, L. 9-23.) On February 10, 1988 he went with

Deputy Jo Ann Miller to the Palms Motel to investigate it.

RT I p. 236, L 15-18; p 238, L. 10-15.) Then, on April

20, 1988, he saw Emma Henderson wave at him, so he

drove to her, and she mentioned “half and half” for

$15.00 apiece. (RT I p. 242, L. 14 - p. 243, L. 28.) She

took the undercover officer to the Palms Motel. (RT i: p.

244, L. 26 - p 245, L. 2)

Emma Henderson went into the motel office with

$12.00 given to her by Officer Sheble to get a room, and

returned to the van, where she saw a tape recorder in the

officer's hand, so began to walk away down the street.

(RT. 1 p. 245, L 22 p 246, L. 24.) Officer Sheble then

picked up Ms. Henderson again after he told her that he

was not a police officer, after she accused him of that

RT I p. 246, L 25 pP 247, L 11.) On the way to open

Room 5 at the Palms Motel, Officer Sheble heard peti-

tioner yell that he was an undercover officer. (RT. I p.

247, L. 12-22.) Soon after this, Emma Henderson turned

and ran. (RT I p 247, L 26 - p 248, L. 5.) Petitioner said

he wanted to see Officer Sbeble s identification, because

7

he was “undercover.” (RT. I. p. 248, L. 6-14.) When

petitioner did this, he called the officer “undercover,” but

not “undercover cop” or “undercover police.” (RT. Il: p.

266, I. 27 - p. 267, L. 9.) And, he never said either the

words “police officer” or “cop” in Emma Henderson's

presence. (R.T. II: p. 267, L. 10-14.)

Special deputy sheriff Larry Mosley testified that he

picked up Emma Henderson on April 20, 1988 and took

her in a van to the Palms Motel, along with Officer

Sheble. (R. T. I: p. 226, L. 22 - p. 227, L. 17.) She then went

into the motel office, returned to the van, and began

walking toward a room when Larry Mosley heard peti-

toner yell, “You're undercover. You're undercover,”

whereupon Emma Henderson began to run until she was

caught and arrested by Deputy Mosley. (R.T. I p. 227, L

18 p. 228, I. 16.)

Prior to petitioner saying anything, Emma Hender-

som was under constructive arrest for solicitation, and not

free to leave. (R. T. II: p. 267, L 15 - p. 268, L. 18.) Prior to

this, Emma Henderson had suggested that Officer Sheble

had “a bedroom on wheels,” but he pushed her to pick a

motel to go to. (R.T. I: p. 255, L. 10-21.)

Larry Mosley also testified that on February 10, 1988,

while employed as a special deputy with the San Bernar-

dino County Sheriff's Department, he rented a room from

petitioner for one night for $35.00 (R.T. I: p. 222, L. 3 - p

223, L. 14), and then observed about six couples arrive

without luggage, rent motel rooms, and stay only about

thirty minutes (RT. I: p. 224, L. 13 - p. 225, L. 26.) The

officer did not see what occurred in the rooms because

petitioner told him that he did not allow curtains to be

opened in his motel room. (R.T. I p. 226, L. 1-17.)

Jo Ann Miller testified that she was a San Bernardino

County Sheriff's deputy on February 10, 1988, working

undercover as a simulated prostitute with the Palms

Motel as her “target.” (R.T. I p. 156, L. 8-16.) She went to

the motel office and asked petitioner for a room for a

short time; was told by him that the room had to rent for

an hour; and she then rented a room for $10.00. (RT. I: p

158, L. 19 - p. 159, L. 14.) It was noted at trial that other

motels also have hourly rates. (R.T. Il: p. 265, L. 20-26.)

Jo Ann Miller did not think that she said who she

was to petitioner when renting a room from him. (RT. |:

p. 159, L. 4-5.) She was not given a key (RT. I p. 159, L.

27-28.) And, she was not asked to sign a registration card.

(RT I p. 160, L 3-4.) The door to the room was unlocked

(RT. 1 p. 160, L. 3-4.)

The conversation between Deputy Miller and peti-

tioner was tape recorded and reduced to transcript form

(RT. I p. 160, L. 10-26.) This and four other «uch conver-

sations occurring on return visits to the motel that same

day were included in Exhibit 20 and played for the jury

(RT. I p. 161, L I- p. 162, L. 5)

On the second visit to the office by Deputy Miller,

petitioner was not present. (RT I p. 163, L. 8-23.) She

rented a room from this unknown person for $10.00 for

an hour, and signed a registration card (RT I p 163, L

22 p. 164, L. 8.) She went into a room with another

officer, and stayed there for about 15 to 20 minutes before

leaving. (RT I p 164, L. 14-16.)

9

On Deputy Miller's third trip to the motel office, she

entered the office and told petitioner that she was with

two people, but would just be in a room with one at a

time, whereupon petitioner told her that she had to pay

$10.00 per person. (RT I: p. 170, L. 10-18.) She left the

office briefly, returned with $20.00, got a room, and was

not required to sign a registration card. (RT I p 171, L.

22-28.) She did not receive a room key on this occasion.

(RT. I p. 172, L. 1-2.) Reserve Deputy Dickerson stayed

in the room with her for 10 to 15 minutes before all three

persons left together. (R.T. I: p. 173, L 19 p. 174, L 22)

She did not recall in what order the men entered the

room. (RT. I p 173, L 21 - p. 174, L 1)

On the next return Deputy Miller came with Deputy

Fedoruk. (RT. I p. 174, L 23 - p. 175, L 4.) Upon going

to the office on this return visit, petitioner told her that

some man had asked about her. (RT. I p. 175, L. 13-22.)

Again she rented a room from petitioner for $10.00 for

one hour. (R.T. I: p. 176, L 27 p. 177, L 2) She then

went to the room with Deputy Fedoruk. (RT I p 177, L.

3-12.) They were there about 5 to 10 minutes when a

buzzer went off, and Deputy Miller saw undercover oper-

ative Al Barnett standing near the motel office. (RT |: p

179, L 17 = p. 180, L. 20.)

Petitioner, told Al Barnett that he had to pay for the

room. (R.T. I p. 181, L 15 - p. 182, L. 2.) Al Barnett then

paid petitioner for use of a room. (RT I p. 182, L. 3-8.)

No registration card was signed, and no room key was

given. (R. T. I p. 182, L. 12-16.) Jo Ann Miller and Al

Barnett then went into a motel room and stayed there 5 to

10 minutes. (RT. I p. 182, L 27 - p. 182, L. 6.) Petitioner

was then placed under arrest. (RT I p. 183, L. 7-11.)

Deputy Miller never referred to herself as a prostitute

or to men with her as a “John.” (RT. I: p. 186, L. 7-17.)

She never told petitioner that she was going to engage in

a sex act in the rented room. (R T. I: p. 186, L. 21-24.) The

registration card signed by this witness as Exhibit 11 said

above the signature line, “I certify that I am not a pros-

titute and will not use the room for purpose of prostitu-

tion.” (RT. I p. 192, L. 15-27.) That form also says at the

top, “No prostitution allowed,” which was read by the

undercover officer before she signed it. (R.T. I: p. 192, L.

28 — p 193, L. 4.) A sign was in the office. (R. T. I. p. 193,

L. 9-13.)

San Bernardino County Reserve Sheriff's Deputy Al

Barnett testified about a tape-recorded conversation with

petitioner admitted in tape form as Exhibit 21. (R.T. I: p.

200, L. 5-13.) This witness said that he did not know

whether petitioner understood what “half and half”

meant in a sexual context. (RT. I. p. 214, L. 23-28.) The

reserve deputy conceded that he never referred to Dep-

uty Jo Ann Miller as a prostitute, and never told peti-

tioner that he was going to perform a specific sex act with

her. (RT. I p. 214, L. 3-19)

In the conversation between Al Barnett and peti-

tioner, petitioner said, “I don’t know why they are com-

ing. I just give them my room.” (R.T. I. p. 215, L. 18-23.)

Initially Al Barnett remembered receiving a key to a

room, and signing a registration card in the motel office.

(XT. k p. 219, L. 16-23)

The defense offered no evidence at trial. (R. T. II: p.

273, L. 14-17.) Transcript Exhibits 20 and 21, and page 7 of

11

Transcript Exhibit 19 were read by the jury but not admit-

ted into evidence, because they heard tape recordings of

the conversations reported in those transcripts. (R.T. Il: p.

280, L. 11-19.) —

All money given for a motel room was retrieved by

law enforcement officers on April 20, 1988. (R. T. II: p. 258,

L. 6-9; p. 265, L. 27 - p. 266, L. 4.) On February 10, 1988

Officer Sheble also recovered all money paid by under-

cover officers for rooms at the Palms Motel on this date.

(R. T. II: p. 268, L. 19 — p. 269, L. 18.)

Pronouncement of judgment was withheld, and peti-

tioner was sentenced to serve 90 days in county jail on

weekends, pay a stayed $4,000.00 fine, pay a restitution

fine in the sum of $780.00, pay another fine in the sum of

$530.00, and be on supervised probation for three years.

(R.T. Il: p. 342, L. 5 - p. 344, L. 13.) He is currently out on

bail pending a final result on review of the judgment.

+

HOW THE FEDERAL QUESTION IS PRESENTED

Petitioner advances the argument that words uttered

by him were protected by the First and Fourteenth

Amendments to the United States Constitution as free

speech, and that a specific intention to delay or obstruct

an officer must be proven beyond a reasonable doubt as

an essential element of delay or obstruction of a public

officer offense. Petitioner raised this argument and the

issue of misinstruction and incomplete instruction of the

jury to both the California Court of Appeal and the

California Supreme Court.

12

While this argument was rejected by the California

Court of Appeal, and hearing was denied by the Califor-

nia Supreme Court, two justices of the California

Supreme Court believed that the petition for review

should have been granted. (See APPENDIX I and

APPENDIX 2 attached.)

+

REASONS FOR GRANTING THE WRIT

This case presents the Court with an opportunity to

announce the limits of nebulous and all-inclusive penal stat-

utes that seek to punish delaying or obstructing a public

officer engaged in the discharge of his official duties, when

speech alone is assigned as the sole offending act. This

Court's ruling in Houston v. Hill, 482 US. 451, 96 L. d 2d 398,

107 S.Ct. 2502 (1987) can be clarified and specifically applied

to a much more prevalent penal statute than the city ordi-

nance in issue in that case. Protected speech can be further

defined within the meaning of the First Amendment to the

United States Constitution as applied to the states through

operafion of the Fourteenth Amendment to the United States

Constitution.

The state statute in issue (California Penal Code sec-

tion 148) can either be declared unconstitutionally over-

broad or unconstitutionally applied where, as in the

instant case, specific intent to delay or obstruct a public

officer is not made a required element of such an offense

grounded entirely upon alleged words spoken by the

defendant. The precious right of freedom of expression

requires that the injustice below be rectified, and that

guidance be given to other courts so that such an error is

13

not repeated. This case squarely presents the issue of

balancing a person's right to freedom of expression

against a public officer's right to carry out his or her

official duties without undue interference or disruption.

Certiorari should also be granted here to address and

remedy instances of erroneous and/or confusing jury

instructions which can infect jury deliberations, and in

turn make all verdicts resulting from such deliberations

unreliable and subject to invalidation. Because the erro-

neous reading of a general intent instruction for a specific

intent crime (California Penal Code section 148 in a ver-

bal context) likely confused the jury below, the proba-

bility that such error also caused confusion concerning

the legal standards for deciding alleged companion

crimes is so great that the entire judgment of convictions

below should be reversed.

—

ARGUMENT

I.

WHERE FREE SPEECH IS IN ISSUE, ORAL

UTTERANCES ADVANCED BY THE STATE AS A

BASIS FOR DELAY OR OBSTRUCTION OF A PUBLIC

OFFICER ENGAGED IN THE DISCHARGE OF AN

OFFICIAL DUTY MUST BE COUPLED WITH SPE-

CIFIC INTENT TO DELAY OR OBSTRUCT THE OFfFI-

CER, IN ORDER TO SUSTAIN A CRIMINAL

CONVICTION GROUNDED UPON SPOKEN

REMARKS.

Petitioner was convicted of a violation of California

Penal Code section 148, which in pertinent part provides

that “Every person who willfully resists, delays, or

obstructs any pubiic officer, peace officer in the

14

discharge or attempt to discharge any duty of his or her

office or employment . . . is punishable by a fine not

exceeding one thousand dollars ($1,000) or by imprison-

ment in a county jail not exceeding one year, or by both

such fine and imprisonment.” To prove the charge the

prosecution was required in all cases to prove the follow-

ing elements of the offense: 1) resistance, delay, or

obstruction; 2) of a public officer; 3) engaged in some

official duty being discharged or being attempted to be

discharged by the officer; 4) with willfulness on the part

of the defendant. (People v. Perry, 79 Cal.App.2d Supp.

906, 907 (1947).)

In the case on review no physical resistance was even

suggested by the prosecution, so delay or obstruction are

the only prongs of the statute that could possibly be

relied upon to prove that such an offense occurred. What

duty was being discharged by William Sheble while peti-

tioner uttered the words “You're undercover; you're

undercover” was never clearly shown, since Emma Hen-

derson was already in constructive police custody after

having allegedly committed a criminal offense prior to

the claimed delay or obstruction by petitioner. So, it

appears that even the basic elements of a California Penal

Code section 148 violation were not proven in the trial

court below.

Additionally, to not run afoul of the constitutionally

guaranteed right to freedom of expression, in a situation

like the case on review, where utterances alone are cited

as the basis for delay or obstruction, for a conviction of a

violation of California Penal Code section 148 to stand,

the prosecution must prove beyond a reasonable doubt

that the defendant acted with the specific intention of

15

delaying or obstructing the officer in question. Because

utterances are protected by the First Amendment to the

United States Constitution, applicable to the states

through operation of the Fourteenth Amendment to the

United States Constitution, in the absence of such specific

intent and words likely to cause a violent action against

an officer or to cause a riotous stampede, mere words

such as “You're undercover; you're undercover” cannot

be held to constitute a violation of California Penal Code

section 148. This is a logical application of the holding in

Houston v. Hill, 482 U.S. 451, 96 L.Ed.2d 398, 107 S.Ct.

2502 (1987). For, the First Amendment protects a

significant amount of verbal criticism and challenge

directed at police officers.” (Id., 482 US. at 461, 96

L.Ed.2d at 412, 107 S.Ct. at 2509.)

‘Speech is often provocative and challeng-

ing. . [But it] is nevertheless protected —

censorship or punishment, unless shown likely

to produce a clear and present danger of a

serious substantive evil that rises far above pub-

lic inconvenience, annoyance, or unrest.’ (Id.,

citing Terminiello v. Chicago, 337 U.S. 1, 4, 93

L.Ed. 1131, 1134, 69 S.Ct. 894, 896 (1949).)

“First Amendment freedoms may not be infringed

absent a compelling governmental interest. Even then,

any governmental regulation must be carefully tailored,

so that rights are not needlessly impaired.” (United Steel-

workers of America v. Sadlowski, 457 U.S. 102, 111, 72

L.Ed.2d 707, 715, 102 S.Ct. 2339, 2345 (1982), rehg. den.

459 U.S. 899, 74 L.Ed.2d 160, 103 S.Ct. 199 (1982).) Expres-

sions of disapproval toward a peace officer fall “squarely

within the protective umbrella of the First Amendment

and any action to punish or deter such speech is

16

categorically prohibited by the Constitution.” (Duran 0.

City of Douglas, Ariz., 904 F.2d 1372, 1378 (9th Cir. 1990).)

A speaker may freely attack institutions, trades,

occupations, groups, races, and ethnic majorities

in this country in that others will discrim-

inate against them. who implement such

abuses in response to an obnoxious exhortation

may be punished under appropriate statutes.

But one of the prices we pay to retain our liberty

2

the speech is obscene or threatens to produce an

immediate violent reaction. (Long v. Valentino,

216 Cal.App.3d 1287, 1295 (1989).)

Likewise, one may express his views in an orderly

fashion on a public street when he is rightfully there.

(Flower v. United States, 407 US. 197, 198-199, 32 L.Ed.2d

653, 656, 92 S.Ct. 1842, 1843 (1972).) The rights of a state

to limit expressive activities on public streets are drawn

within quite narrow confines. (Perry Ed. Assn. v. Perry

Local Ed. Assn., 460 U.S. 37, 45, 74 L.Ed.2d 794, 804, 103

S.Ct. 948, 954 (1983).) Because Emma Henderson was

unlikely to become violent on hearing petitioner's spoken

words, and the uttered words were not “fighting words,”

they were constitutionally protected, under Article I, sec-

tion 2 of the California Constitution, as well as undef the

United States Constitution's First and Fourteenth Amend-

ments.

The record below also fails to show that petitioner

intended anything to happen as a result of his spoken

words. He did not say “Run!” to Emma Henderson. And

he made no move to interfere with her or Officer Sheble

as petitioner spoke.

17 =

While this speech-centered alleged offense should

have been treated at trial as a specific intent crime, the

jury deciding petitioner's fate was not instructed that in

order for it to return a guilty verdict for a violation of

California Penal Code section 148, it must first determine

that petitioner had a specific intent to resist, delay, or

obstruct Officer Sheble in the conduct of his duties at the

time petitioner said “You're undercover; you're under-

cover.” There was also no showing that petitioner was

directing his remarks to Emma Henderson rather than the

officer.

The absence of a specific intent jury instruction for

California Penal Code section 148, such as CALJIC 3.31

rather than CALJIC 3.30 which was given (see APPEN-

DIX 4 and APPENDIX 5 attached); the verbal nature of

the claimed delay or obstruction; and the lack of a

defined duty that was allegedly interrupted by peti-

tioner’s protected speech should cause ‘is conviction for

resisting, delaying, or obstructing a public officer to be

reversed. This will assure the ‘ceaseless vigilance’ “

required to prevent erosion [of First Amendment

rights} . dy the states (Stanley d Georgia, 394 US

557, 563, 22 L.Ed.2d 542, 548-549, 89 S.Ct. 1243, 1247

(1969), citing Roth v. United States, 354 US. 476, 488, 1

L.Ed.2d 1498, 1509, 77 S.Ct. 1304, 1311 (1957).) The

“immediate breach” of the peace hypothesized by the

California Court of Appeal never materialized, and it is

dangerous indeed to guess at the ſury s conclusions, espe

cially when it was misinstructed concerning the neces-

sary elements of a California Penal Code section 148

offense.

If the statute in question is construed in any other

fashion than to require a specific intent where speech is

the crux of the alleged offense, it would both criminalize

constitutionally protected speech and allow peace officers

unconstitutional discretion in enforcing the statute, mak-

ing the penal provision unconstitutionally overbroad and

facially invalid, just as was found in Houston v. Hill, supra.

THE TRIAL 'UDGE MUST INSTRUCT THE JURY SUA

SPONTE THAT SPECIFIC INTENT TO DELAY OR

OBSTRUCT A PUBLIC OFFICER IS A REQUIRED ELE-

MENT OF DELAYING OR OBSTRUCTING A PUBLIC

OFFICER, WHERE ORAL UTTERANCES ARE PRE-

SENTED AS THE SOLE BASIS FOR SUCH POSSIBLE

DELAY OR OBSTRUCTION.

For the reasons stated in Section I. above, and in

conformity with a logical application of this Court's hold-

ing in Houston v. Hill, 482 U.S. 451, 96 L.Ed.2d 398, 107

S.Ct. 2502 (1987), the trial judge’s failure to instruct the

jury that California Penal Code section 148 requires a

specific intent rather than a general one in the factual

context presented, sua sponte, and to delineate the para-

meters of constitutionally protected free speech, constitu-

ted prejudicial and reversible error. A different result

would probably have occurred if the jury had been

instructed that it was required to find specific intent

rather than general intent for any California Penal Code

section 148 offense.

With respect to failure to properly instruct a jury, “It

cannot be said that, under correct instructions, a different

19

verdict would have been improbable; therefore, the erro-

neous rulings constitute a miscarriage of justice, within

the meaning of the constitutional provision,” which until

November 8, 1966 was Article VI. section 4'/2, and is now

Article VI. section 13 of the California Constitution. (Peo-

ple v. Hamilton, 33 Cal.2d 45, 51, 198 Pad 873, 877 (1948).)

Reversal is appropriate because tit is reasonably

probable that a result more favorable to the defendant

would have been reached in the absence of the errors

committed by the trial court in failing to give an instruc-

tion on the law .. . ,” as in People v Bevins, 54 Cal.2d 71,

78, 351 Pad 776, 780 (1960). ~ . . . the court has a duty to

give instructions on the general principles of law govern-

ing the case, even though not requested by the parties,

but it need not instruct on specific points developed

during trial unless requested. (Id., 54 Cal ad at 77,

351 Pad at 780.) Instruction on the correct intent to be

applied to the statute was an essential principle of law

governing the case on review, so the trial judge breached

a sua sponte duty in not reading the jury a specific intent

instruction concerning an alleged violation of California

Penal Code section 148. “An instruction is necessary if it

is vital to a proper consideration of the evidence by the

jury.” (People d Putnam, 20 Cal.2d 885, 890, 129 Pad 367,

370-371 (1942); People v. Baker, 42 Cal ad 550, 576, 268 Fd

705, 721 (1954).)

Concerning an examination of the record for a mis-

carriage of justice, “Error in an instruction which ordi-

narily would not prejudice the rights of a defendant may

justify a reversal of the judgment where the jury is mis-

directed or misled upon an issue vital to the defense and

the evidence does not point unerringly to the guilt of the

person accused.” (People d Rogers, 22 Cal.2d 787, 807, 141

Pad 722, 732 (1943); People v. Robinson, 61 Cal ad 373, 395,

392 P-2d 970, 984 (1964).) A requirement of specific intent

is an issue that was vital to the defense at trial, and

petitioner’s behavior was so innocuous that it can hardly

be said that the evidence pointed unerringly to his guilt

with respect to a violation of California Penal Code sec-

tion 148.

An examination of the entire record below clearly reveals

that a miscarriage of justice occurred at petitioner's trial

This manifest injustice deprived petitioner of the fair trial

to which he was entitled pursuant to the Sixth and Four-

teenth Amendments to the United States Constitution,

and pursuant to Article 1, section 15 of the California

Constitution. The prejudicial errors committed cry out for

remediation.

21

THE TRIAL COURT’S FAILURE TO PROPERLY

INSTRUCT THE JURY ON THE REQUISITE INTENT

REQUIRED FOR A CRIMINAL CONVICTION INFEC-

TED JURY DELIBERATIONS TO SUCH AN EXTENT

THAT PETITIONER WAS DEPRIVED OF A FAIR

TRIAL CONCERNING ALL COUNTS CHARGED

AGAINST HIM.

The failure to properly instruct the jury about the

requisite intent for a California Penal Code section 148

violation adversely affected more than just the verdict

directed toward that count of the amended information.

All werdicts were infected by what must have been con-

fused and easily awry jury deliberations. Taking into

account that the jury was read special intent instructions

addressed to the pandering and attempted pimping

charges (C. T. p. 250, pp. 252-254, and p 257, reproduced

and attached respectively as APPENDIX 5, APPENDIX 6,

and APPENDIX 7), along with a general intent instruction

addressed to pimping, maintaining a disorderly house,

and obstructing a peace officer (C.T.: p. 249, reproduced

and attached as APPENDIX 4), it is impossible to know

how jurors resolved the conflicting instructions or to

determine from the evidence which of the conflicting

instructions formed the basis of the verdict reached by

the jury” for each individual count. (See People v. Kirkes,

39 Cal.2d 719, 729, 249 Pad 1, 7 (1952), and People v

Bernhardt, 222 Cal.App.2d 567, 593 (1963).) This is espe-

cially true since jurors were told of one required intent

for the crime of attempted pimping and another for the

crime of pimping.

22

What is known with assurance is that jurors were

misinformed about the appropriate intent required for a

violation of California Penal Code section 148 that

involved speech alone. That is enough by itself to invali-

date the verdict dealing with that charge (see People v.

Zerillo, 36 Cal.2d 222, 232, 223 Pd 223, 229-230 (1950)),

and to result in infection of the remainder of verdicts

reached. Under these circumstances, all verdicts returned

are cast in substantial doubt, because the inconsistent and

erroneous instructions given to the jury resulted in a clear

miscarriage of justice and should be found to constitute

reversible error. (Id., 36 Cal.2d at 233, 223 Pad at 230;

People v. Kirkes, supra, 39 Cal zd at 729, 249 Pad at 7.)

+

CONCLUSION

For all of the reasons stated above, petitioner submits

that justice and a need to clarify the permissible interac-

tion of persons exercising their free speech rights with a

public officer's right not to be delayed or obstructed in

the performance of his or her duties present this Court

with ample reasons to issue the writ prayed for. Accord-

ingly, petitioner respectfully requests that the Court issue

a writ of certiorari to review the decision of the California

Court of Appeal in this case.

Respectfully submitted,

/s/ Dennis 8. Tilton

ILTON

Attorney for Petitioner

Thakorbhai L. Patel

App. |

APPENDIX 1

NOT FOR PUBLICATION

COURT OF APPEAL, FOURTH DISTRICT

DIVISION TWO

STATE OF CALIFORNIA

PEOPLE OF THE STATE OF

)

CALIFORNIA, ) „*

) Ct. Nos

Plaintiff and Respondent, ) 47384/48604)

} OPINION

THAKORBHAI L PATEL, ) FILED

Defendant and Appellant. ) SEP 11 1990

)

Appeal from a judgment of the Superior Court of San

Bernardino County. James A. Edwards, Judge. Affirmed

Dennis S. Tilton for Defendant and Appellant

John K. Van De Kamp, Attorney General, Richard B

igiehart, Chief Assistant Attorney General, Harley D

Mayfield, Senior Assistant Attorney General, Robert M

Foster, Supervising Deputy Attorney General, and M

Howard Wayne, Deputy Attorney General, for Plaintiff

and Respondent.

Facts

In consolidated actions, a jury convicted Thakorbhai

Patel of pandering (Pen. Code', § 266i), attempted

— @

' All further code references are to the Penal Code unless

otherwise indicated

App. 2

pimping (Ss 664/266h), pimping (§ 266h), maintaining a

disorderly house (§ 316), and resisting/obstructing/

delaying an officer (§ 148). He was granted probation and

appeals, claiming insufficiency of the evidence and jury

instruction error. We reject his contentions and affirm.

The pertinent facts surrounding each count will be dis-

cussed below.

1. Insufficient Evidence

a. Of Pandering

As to count l. Patel was charged with “willfully,

unlawfully, and by threats, violence, promises, a device,

and scheme, causlingl. persuading), and encouragling!

lan undercover policewoman posing as a prostitute] to

become a prostitute? He now claims there was insuffi-

cient evidence to support his conviction of this offense.

The evidence at trial showed that the undercover

policewoman, dressed in a conspicuous fashion, went to

Patel’s motel for the first time around 3 p.m. on February

10, 1988. She asked him how much it would cost to rent a

* Im his reply brief, Patel claims, as a further basis for his

argument the evidence was insufficient, that the facts did not

demonstrate that he “successfully induced a person to become

an inmate of a house of prostitution... A violation of

section 2661 can be committed in one of several distinct ways.

(People u Fixler (1976) 56 Cal. App.3d 321, 327, disapproved on

other grounds in People © Freeman (1988) 46 Cal.3d 419, 426, fn.

6.) The manner described by Patel above relates to subdivision

(c) Of section 266i, with which Patel was not charged, having

been accused instead under subdivision (b).

-

—

App. 3

room “for a short time.“ Patel replied, “If you do work

short time, we don’t give [you a] room.” (Emphasis

added.) He then informed her that she would have to rent

the room by the hour, which she said would cost $10. She

gave him the money. Patel did not ask her to sign a

registration card and he did not provide her with a key as

the door to the room she was given was not locked. She

walked to the room accompanied by a male undercover

officer who was posing as her customer. They remained

in the room for 15-20 minutes, then departed in the

latter’s van.

She returned a second time and was waited on in the

motel office by someone other than Patel. He asked her to

sign a registration card and she again rented a room for

$10 a hour. She entered the room with another male

undercover officer, stayed 15-20 minutes and left with

him.

She returned a third time around 6 p.m. with two

undercover male officers. When Patel asked her how

many she had with her, and she told him, he informed

her she could not have more than one in the room. She

told Patel, I was going to do both, one at a

time. | was gonna have one go in and then come out and

then another one.” (Emphasis added.) Patel informed her

that it would cost her $10 for each of the two men. She

told him she would go out to the vehicle in which they

were waiting in the parking lot and tell them. She

returned to the office and told Patel she was renting the

Another undercover police officer testified at trial as an

expert witness that “short time” in prostitute parlance referred

to the time it takes a customer to reach orgasm.

App. 4

room for the two, and she paid him $20. Patel did not

have her sign a registration card and he provided her no

key. She went into the room and left a half-hour later.

A short time thereafter, a male undercover officer

posing as a “big spender” came to the motel looking for

the female officer. Patel instructed him to wait for her.

Patel told him that “girls . . III don’t [stay] overnight” at

his motel, lolnly [a] short time.” He told the officer he

had hourly rates. Patel also told the officer that the latter

could “get girls” at a local bar and he provided him with

directions to it. The officer then left.

After a short time, the female officer reappeared with

another male undercover officer and Patel told her about

the man who had been there looking for her. She con-

firmed that she had told the man to meet her there at 7

p.m. Patel told her he had informed the man to come

back for her. She replied, “ .. . [(Glood . because I can’t

believe I'm doing good tonight . . . I'm making some

money, but that man is high doilars, real high dollars.”

Patel repeated to her that he told the man to come back

and she again expressed pleasure at the prospect. She

then told Patel that she had a gentleman with her and she

needed a room right then. Patel offered to tell the “big

spender” when he returned to wait for her. Patel told her

“[when] you finish up . . [4] . you wait in the

room” for the “big spender” as he would send him up to

her when he arrived. He also informed her that he would

need another $10 when the “big spender” arrived. She

told Patel that she was making a lot of money that night

and he acknowledged same. She asked him if the follow-

ing night she could rent a room for the entire night for

one price thus avoiding having to pay “per head.” He

App. 5

said she could not, that she would have to “pay by the

man,” $10 each time. Patel explained this was so because

he had the rooms cleaned after each use. She gave Patel

$10 for the room, signed no card and received no key. She

went to the room with the undercover officer who had

accompanied her to the motel.

After being in the room for awhile, a buzzer inside

the room went off. She walked outside and saw the “big

spender” standing talking to Patel. Patel had already told

him to wait for the woman as she was “busy.” When the

three met, Patel asked for $10 for the room. The “big

spender” asked. [Dloes this come out of the 50

bucks for the half and half* or what?” The female said no

and Patel laughed. The female told the “big spender” that

he had to pay for the room. He handed Patel a $50 bill

and Patel gave him $40 in change. Patel then wished him

luck. Patel did not have them sign a registration card and

he provided no key. They went into the room and

emerged 5-10 minutes later.

Still another undercover officer who had rented a

room for the same night, paying $35 and signing a regis-

tration card, saw six couples besides his fellow officers go

into various rooms that evening, without luggage, and

stay only about a half-hour before leaving. He watched

them, and surreptitiously photographed some of them,

through the open window of the room he had rented. At

one point, Patel came to his room and told him it was

* This undercover officer testified at trial as an expert

witness that “half and half“ meant half vaginal sex and half

oral sex.

App. 6

against the policy of the motel for him to have the cur-

tains of his window open.

As the People contended at trial and here on appeal,

the foregoing facts demonstrate that Patel provided a

clean, anonymous and relatively secluded haven for what

he knew were prostitution activities“ and he did so with

the intention of encouraging and, in fact, did encourage

someone he believed to be a prostitute to ply her trade.

Thus, substantial evidence supports the conviction.

In his brief, Patel makes a number of assertions and

cites a number of cases which he argues undermine the

verdict. They do not. First, he states, “Appellant was not

shown by either direct or circumstantial evidence to have

the required specific intent to influence [the undercover

policewoman] to become a prostitute. (See People v.

Mathis (1985) 173 Cal.App.3d 1251.)” The evidence dem-

onstrates otherwise. Moreover, Mathis has no application

to this issue. In Mathis, the issue was over a jury instruc-

tion that defined “procure” in such a way that the defen-

dant could be guilty of pandering simply by assisting, or

aiding and abetting, an act of prostitution. Division One

of this court held that the requisite intent to influence a

person to become a prostitute may be inferred from acts

of assistance, but intent was not necessarily shown by

assistance. (Id., at pp. 1255-1256.)

Patel goes on to assert, “Appellant did not seek out

the [female] undercover officer to encourage her to

> It was entirely reasonable for the jury to infer Patel knew

what was going on in his motel from his conversations with the

female officer and with the “big spender.”

App. 7

become a prostitute. (See People v. Osuna (1967) 251

Cal.App.2d 528.) Osuna, however, does not support

Patel's claim that the defendant must seek out the poten-

tial prostitute. Osuna dealt with a subdivision of section

266i not relevant here which punishes placing a female in

a locale where prostitution is allowed or encouraged. The

scle issue relevant to section 266i in Osuna was whether

the hotel room the defendants supplied qualified as a

house of ill repute.

Patel next claims, “Neither did he offer to pay her to

engage in sexual activities, as in People v. Bell (1988) 201

Cal.App.3d 1396.” However, Bell did not hold that such

activity, and none other, was necessary to sustain a con-

viction under section 266i. In fact, Bell held, “This statute

covers a wide range of behavior and we need not here

attempt to delineate its full scope, or determine whether

its proscriptions would or would not apply to the hypo-

theticals advanced by appellant. It is sufficient for our

present purpose to hold that its wording is broad enough

to encompass the situation where, as here, one adult

offers to pay money to another to induce a young child to

engage in sexual activities.” (Id., at pp. 1399-1400.)

Patel further argues, “Nor did he seek to expand a

known prostitute’s operation. (People v. Jeffers (1987) 188

Cal.App.3d 840; People v. Almodovar (1987) 190

Cal.App.3d 732.) [Sic.]” Neither of these cases so hold,

nor do they even address such an issue. Instead, they

quote People v. Hashimoto's (People v. Hashimoto (1976) 54

Cal.App.3d 862) holding that section 266i was designed

to “discouragle] persons from augmenting and

App. 8

expanding a prostitute’s operation, or increasing the sup-

ply of available prostitutesl. H in the context of the sever-

ity of the sentence imposed for violations of the section.

Next Patel contends, “Without any proof that appel-

lant had full knowledge of the nature of an act of pros-

titution that would take place, he cannot properly stand

convicted of pandering by encouraging. (See People v.

Montgomery (1941) 47 Cal.App.2d 1, 22.)* First, as stated

above, it is reasonably inferable from the evidence that

Patel was well aware of the nature of the female officer's

apparent activities. Moreover, Montgomery does not stand

for the proposition that the defendant must have such

knowledge on page 22 or any other page for that matter.

The import of what the court holds on that page is as

follows: “Appellant concedes that ‘all appellant did was

to permit [the prostitute] to work as [one] in houses of

appellant.” This admission of appellant effectively dis-

poses of all of her contentions as to the sufficiency of the

evidence, for if appellant knowingly permitted [the pros-

titute) to work for appellant . . . in appellant's houses of

prostitution appellant was guilty of having procured the

said female person as an inmate for a house of prostitu-

tion within the meaning of the . . . pandering act.”

Finally, Patel points out that his activities here were

far different from those of the motel manager in People v.

Frey (1964) 228 Cal.App.2d 33. However, Frey does not

hold that the activities in it, and only those, are all that

constitute a violation of section 266i. As decisions Patel

* Montgomery was disapproved on other grounds in Mur

gia v. Municipal Court (1975) 15 Cal.3d 286; 301, fn. 11, and in

People v. Dillon (1983) M Cal.3d 441, 454, fn. 2.

App. 9

himself cites hold, section 266i covers a wide variety of

activities. Patel’s points have no merit.

b. Of Attempted Pimping

Patel claims there was insufficient evidence to sus-

tain his conviction of attempted pimping on February 10.

Section 266h, of which he was convicted in this regard,

provides: “Any person who, knowing another person is a

prostitute, lives or derives support or maintenance in

whole or in part from the earnings or proceeds of the

persons prostitution, or from money loaned or advanced

to or charged against that person by any keeper or man-

ager or inmate of a house or other place where prostitu-

tion is practiced or allowed, or who solicits or receives

compensation for soliciting for the person, is guilty of

pimping ....” The jury here was instructed as to only

the first half of the section, no reference being made to

the solicitation portion.” Ignoring this fact. Patel argues,

? The jury was instructed:

“Defendant is accused in Count [ | ot the information of

having attempted to commit the crime of pimping, a violation

of Section [s] 664/266h of the Penal Code

“Every person who, knowing another person is a pros-

titute, lives or derives support or maintenance in whole or in

part from the carnings or proceeds of that other person's

prostitution, or from money loaned or advanced to or charged

against that other person by any keeper or manager or inmate

of a house or other place where prostitution is practiced or

allowed, is guilty of the crime of pimping in violation of Penal

Code Section 266h.

(Continued on following page)

App. 10

One is not guilty of this offense unless he got money

for solicitation on behalf of a prostitute for attempted

pimping.” As this court made clear in People v. McNulty

(1988) 202 Cal.App.3d 624, 630, “[S]ection 266h can be

violated in either of two basic ways: (1) by deriving sup-

port from the earning of another's act of prostitution or

(2) by soliciting. In order to violate the statute by solicit-

ing, there must be either the receipt of compensation for

soliciting for a prostitute or the solicitation of compensa-

tion for soliciting for a prostitute.* (People v. Smith (1955)

44 Cal.2d 77,79... .)” (Emphasis added and original.) In

People v. Frey, supra, 228 Cal.App.2d at page 53, the court

held, “Appellant . . . contends that [his] renting a room in

the hotel [he owned and managed] to a prostitute could

not constitute receiving money from the proceeds of pros-

titution. The evidence in the present case shows an

(Continued from previous page)

“In order to prove such crime each of the following ele-

ments must be proved:

“1. A person knew that another person was a prostitute,

and

“2. Such person lived or derived support or maintenance

in whole or in part from the earnings or proceeds of the other

person’s prostitution, or from money loaned or advanced to or

charged against that other person by any keeper or manager or

inmate of a house or other place where prostitution is practiced

or allowedl.]

“Prostitution is engaging in sexual intercourse or any lewd

act between persons for money or other consideration.”

* Patel’s reliance on this sentence is misplaced as the jury

was never given the option of convicting him based on solicita-

tion.

App. 11

arrangement whereby appellant did derive additional

rent from the tenants that were provided prostitutes. .. .”

Likewise, evidence here showed that Patel derived

income from renting the rooms for purposes of prostitu-

tion in addition to that which he normally charged for an

overnight stay. In fact, he would not allow the female

undercover officer to rent for the entire night, as he had

the male officer, insisting that she pay “per man.”

Patel further asserts that “since he had no knowledge

that [the undercover policewoman] was a prostitute (or

even a simulated one), and . prostitution activities

were not expressly discussed by appellant and her

appellant was convicted on insufficient evidence of

attempted pimping.” Fust, as stated before, we disagree

that the evidence did not permit a reasonable inference

that Patel believed the female officer to be a prostitute.

Certainly, his conversations with her and with the “big

spender” indicated otherwise. Moreover, Patel cites no

precedent requiring one convicted of pimping to have

expressly discussed illegal activities with the prostitute,’

although this too is reasonably inferable from the facts

deduced at trial. Patel’s point has no merit.

c. Of Pimping

Patel claims there was insufficient evidence to sup-

port his conviction of pimping on April 20, 1988, a little

over two months after the first incident. On that day, two

Nor is there any requirement, as Patel asserts in his reply

brief, that his entire motel business was primarily a pimping

operation|.]’ ”

App. 12

male undercover police officers riding in a van picked up

a prostitute, who directed them to Patel’s motel. At trial,

she admitted frequenting the motel at least once a week

and said she committed acts of prostitution there. She

said she rented rooms from Patel and paid $8-12 for one

or two hours, often not signing a registration card. On the

way to the motel, the officers and the prostitute agreed

that she would perform sexual services for them for $15

each. Upon reaching the motel, the officers gave the

prostitute $10 for the room rental, but she returned to the

van saying she needed another $2. They gave her the

money and she paid Patel in the office. She returned to

the van and one of the officers began walking towards

the room with her. They had no key, but the room was

unlocked. Before they were able to go inside, Patel spot-

ted the officer and recognized him as one who had been

involved in the February sting operation. He yelled out

that the officer was “undercover” and the prostitute took

off running, but was stopped by the other officer. Patel

later admitted that he had filled out a registration card

for the prostitute, claiming she did not know how to

write.

As to his insufficiency of the evidence claim, Patel

reasserts the points he made in connection with the

attempting pimping count, all of which have already been

disposed of here. Additionally, as to the facts surround-

ing this particular count, he claims that the evidence did

not show that he knew the prostitute definitely was one.

However, as with the female undercover officer during

the February incident, this is reasonably inferable from

the fact that the woman had rented rooms for short

periods of time from Pate! in the past and from the type

App. 13

of activities occurring at the motel as observed by the

officers in February.

d. Of Maintaining a Disorderly House

The jury was instructed as to this count that “Every

person who keeps any disorderly house, or any house for

the purpose of prostitution, or any house of public resort,

by which the peace, comfort, or decency of the immediate

neighborhood is habitually disturbed, or who keeps any

inn in a disorderly manner; and every person who lets

any apartment or tenement, knowing that it is to be used

for the purpose of prostitution, is guilty of a misde-

meanor.” (CALJIC No. 16.420.)

As with all his other arguments, Patel focuses on one

definition of the charged offense and claims there was

insufficient evidence of that definition, ignoring the fact

that the evidence fits one or more of the other definitions.

In this case, he claims there was insufficient evidence he

kept a disorderly house because people at his motel were

not disturbing others and exposing themselves, which

would fit under the third alternate definition of the

crime. The fact remains that the evidence here showed

that Patel maintained a motel in which he knowingly

permitted and assisted acts of prostitution, for which he

made a profit. Therefore, he kept a house for the purpose

of prostitution.

e. Of Resisting/delaying/obstructing an Officer

Patel first claims that there was insufficient evidence

to sustain his conviction because there was no resistance.

App. 14

Again, he ignores the alternate aspects of the crime,

namely, delaying and obstructing which were demon-

strated when he identified the officer as being under-

cover, which caused the prostitute to take off running and

prematurely ended the sting operation. Patel also claims

it was unclear what duty the officer was performing since

the prostitute was already “in constructive custody after

having committed a criminal offense” which, we pre-

sume, was her solicitation of the officers in the van.

Without voicing our opinion whether the prostitute was

indeed in constructive custody at the time of Patel’s

interference, we need only say that even if she was, this

fact is irrelevant. If the officers’ only objective was to

arrest her, they would have done so in the van. Obvi-

ously, their overriding purpose was to investigate activ-

ities at Patel’s motel and that operation was ongoing until

Patel caused its premature termination.

Patel also claims that his actions cannot constitute a

violation of section 148, which governs resisting,

obstructing and delaying an officer, because they were

protected speech under Houston v. Hill (1987) 482 US.

451. In Hill, the Supreme Court struck down as facially

invalid for overbreadth a City ordinance that prohibited

anyone from interruptlingl any policeman in the execu-

tion of his duty ... . ” The Court concluded that the law

should have been limited to words that ‘ “inflict injury

or tend to incite an immediate breach of the peace“

However, the jury here could have reasonably concluded

that Patel's words were designed to and did in fact incite

such an immediate breach, i.e., the prostitute’s running

from the scene. Therefore, we are not persuaded that Hill

App. 15

prohibits a finding of guilt as to section 148 here. %

Beyond that, there is no precedent holding that section

148 is facially invalid.

2. Jury Instruction

Patel argues that under compulsion of Hill and a case

which he in his reply brief concedes was decertified by

the California Supreme court, the trial court was obliged,

sua sponte, to instruct that a violation of section 148

required specific intent. Hill makes no such holding, and,

of course, the decertified case is of no value. In the

absence of any other authority, which Patel fails to cite,

we are compelled to reject his contention.

DisrosiTion

The judgment is affirmed.

NOT FOR PUBLICATION

/s/ Hollenhorst

Acting PJ.

We concur:

/s/ Dabney

J.

/s/ Timlin

J.

% Nor can we agree with Patel that Hill requires the

impediment to the officer to be physical. Hill made no such

holding.

App. 16

APPENDIX 2

ORDER DENYING REVIEW

AFTER JUDGMENT BY THE COURT OF APPEAL

Fourth Appellate District, Division Two,

No. E007180

8018014

IN THE SUPREME COURT

OF THE STATE OF CALIFORNIA

IN BANK

(Filed Nov. 28, 1990)

THE PEOPLE, Respondent

*.

THAKORBHAI L. PATEL, Appellant

Appellant's petition for review DENIED.

Mosk, J. and Broussard, J. are of the opinion the petition

should be granted.

LUCAS

Chief Justice

App. 17

APPENDIX 3

COURT OF APPEAL

STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

** REMITTITUR **

PEOPLE OF THE STATE OF Case No. E007180

CALIFORNIA )

Plaintiff-Respondent ) Superior Ct. No.

vs ) SCR47384

)

PATEL, THAKORBHAI L ) County of

Defendant-Appellant ) San Bernardino

)

I, STEPHEN M. KELLY, Clerk of the Court of Appeal,

State of California, Fourth Appellate District, certify the

attached is a true and correct copy of the original opinion

or decision entered in the above entitled cause on Sep-

tember 11, 1990 and this opinion or decision has now

become final.

Witness my hand and seal of the Court

this December 3, 1990.

Stephen M. Kelly, Clerk

By: ROBERT CONN

Deputy Clerk

cc: All parties (Copy of remittitur only, Rule 25(e), Cali-

fornia Rules of Court).

App. 18

APPENDIX 4

ee le a

In the crimelsl charged in Count[s] 3, 4, and 5 of the

information, [namely,] pimping, maintaining a disorderly

house, and obstructing a peace officer, there must exist a

union or joint operation of act or conduct and general

criminal intent. To constitute general criminal intent it is

not necessary that there should exist an intent to violate

the law. When a person intentionally does that which the

law declares to be a crime, [he] [she] is acting with the

general criminal intent, even though [he] [she] may not

know that [his] [her] act or conduct is unlawful.

Given:

/s/ James A. Edwards

judge

EXACT COPY OF CALJIC 3.30 (FIFTH EDITION)

CONCURRENCE OF ACT AND GENERAL CRIMINAL

INTENT

App. 19

APPENDIX 5

See

In [each of] the crime[s] [and] [allegations([s}]

charged in Count[s] 1 & 2, and of] the information,

[namely,] pandering, attempted pimping and __, there

must exist a union or joint operation of act or conduct

and a certain specific intent in the mind of the perpetra-

tor. Unless such specific intent exists the crime [or allega-

tion] to which it relates is not committed.

[The specific intent required is included in the defini-

tion[s}] of the crime[s] [or] [allegation[s]] charged.

[The crime of __ requires the specific intent to

[And the crime of ___ requires the specific intent to

aia

[And the allegation of ___ requires the specific intent

to

Given:

/s/ James A. Edwards

judge

EXACT COPY OF CALJIC 3.31 (FIFTH EDITION)

CONCURRENCE OF ACT AND SPECIFIC INTENT

App. 20

APPENDIX 6

. Peres

[Defendant [__] is accused in [Count[s] 1 of] the

information of having committed the crime of pandering,

a violation of Section 266i of the Penal Code.]

Every person who with the specific intent to influ-

ence another person to [become] [or] [continue to be] a

prostitute,

[by promises, or by any device or scheme, causes,

induces, persuades or encourages another person to

become a prostitute],

[receives or gives, or agrees to receive or give, any

money or thing of value for procuring, or attempting to

procure, another person for the purpose of prostitution,

or to come into this state or leave this state for the

purpose of prostitution], is guilty of a violation of Section

266i of the Penal Code.

In order to prove the commission of such crime, the

following elements must be proved:

11. A person by promises, or by any device or

scheme, caused or induced, persuaded or encouraged

another person to become a prostitute,] or

[1. A person received or gave, or agreed to receive

or give, money or thing of value for procuring or

attempting to procure another person for the purpose of

prostitution, or to come into this state or to leave this

state for the purpose of prostitution,] and

‘ App. 21

2. Such procuring, causing, inducing, encouraging

or persuading was accomplished by [promises], [or] [any

device or scheme], and

3. The person procuring, causing, inducing, per-

suading or encouraging engaged in such conduct with

the specific intent to influence the other person to

[become] [or] [continue to be] a prostitute.

Prostitution is engaging in sexual intercourse or any

lewd act between persons for money or other consider-

ation.

Given:

/s/ James A. Edwards

Judge

EXACT COPY OF CALJIC 10.71 (FIFTH EDITION)

PANDERING - DEFINED

App. 22

APPENDIX 7

W266

An attempt to commit a crime consists of two ele-

ments, namely, a specific intent to commit the crime, and

a direct but ineffectual act done toward its commission.

In determining whether or not such an act was done,

it is necessary to distinguish between mere preparation,

on the one hand, and the actual commencement of the

doing of the criminal deed, on the other. Mere prepara-

tion which may consist of planning the offense or of

devising, obtaining or arranging the means for its com-

mission, is not sufficient to constitute an attempt. How-

ever, acts of a person who intends to commit a crime will

constitute an attempt where those acts clearly indicate a

certain, unambiguous intent to commit that specific

crime. Such acts must be an immediate step in the present

execution of the criminal design, the progress of which

would be completed unless interrupted by some circum-

stance not intended in the original design.

Given:

/s/ James A. Edwards

judge

EXACT COPY OF CALJIC 6.00 (FIFTH EDITION)

ATTEMPT - DEFINED