Opposition Brief — Patel v. California

No. 90-1355

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

THAKORBHAI L. PATEL,

Petitioner,

v.

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEAL

FOR THE STATE OF CALIFORNIA,

FOURTH APPELLATE DISTRICT, DIVISION TWO

RESPONDENT'S BRIEF IN OPPOSITION

DANIEL E. LUNGREN, Attorney General

of the State of California

GEORGE Par an EOON, Chief Assistant

Attorney Gener - Criminal Division

HARLEY D. MAYFIELD, Senicr Assistant

Attorney General

ee M. FOSTER

Supervising Deputy Attorney General

M. HOWARD WAYNE

Deputy Attorney General

ie West A Street, Suite 700 .

ornia 9210]

Telephose: (6 619) 237-7765

Attorneys for Respondent

oie

QUESTION PRESENTED

Whether the First Amendment protects the conduct

of an individual who orally advises @ prostitute of an imminent

arrests by an undercover officer, so that the prostitute may try to

avoid arrest by fleeing from the police.

LIST OF PARTIES

Petitioner, Thakorbhai L. Patel, is on probation,

and is at liberty from a commitment of 90 days in the San

Bernardino County Jail pending appeal. The People of the State of

California are represented by Attorney General Danie! E. Lungren.

OPINION BELOW

Petitioner seeks a writ of certiorari to review an

unpublished opinion of the California Court of Appeal, Fourth

Appellate District, Division Two. (People of the State of California

v. Thakorbhai L. Patel, (Case E007180).) The opinion is attached to

the petition as Appendix }.

QUESTION PRESENTED

LIST OF PARTIES

OPINION BELOW

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

STATEMENT OF FACTS

Defense .

SUMMARY OF REASONS WHY THE

PETITION SHOULD BE DENIED

ARGUMENT

1 A STATUTE WHICH IS DESIGNED TO

PREVENT ANYONE FROM OBSTRUCTING

AN OFFICER FROM THE PERFORMANCE

OF DUTY IS NOT DIRECTED AT FREE

SPEECH AND NEED NOT BE A SPECIFIC

INTENT CRIME

II. PETITIONER HAS FAILED TO

ESTABLISH THAT BECAUSE OF

THE ALLEGED ERROR IN

INSTRUCTING THE JURY ON HIS

OBSTRUCTION CHARGE HE WAS DENIED

A FAIR TRIAL AS TO THE OTHER OFFENSES

FOR WHICH HE WAS CONVICTED

CONCLUSION

10

1]

1]

27

- iii -

TABLE OF AUTHORITIES

CASES

Cohen v. California, 403 US. 15,

L.Ed.2d 284,91 S.Ct. 1789 (1971)

Gooding v. Wilson, 405 U.S. 518,

31 LEd.2d 408, 92 S.Ct. 1103 (1972)

Houston v. Hill, 482 U.S. 451,

96 L.Ed.2d 398, 107 S.C. 2502 (1987)

In re Gregory S., 112 Cal. App.3d 764,

169 Cal. Rptr. 540 (1980)

In re Joe R., 12 Cal App.3d 80,

90 Cal. Rptr. 530 (1970)

People v. Powell, 99 Cal.App.2d 178,

221 P.2d 178 (1950)

People v. Roberts, 131 Cal.App.3d Supp. 1,

182 Cal. Rptr. 757 (1982)

Terminiello v. Chicago, 337 U.S. 1,

93 LEd. 1131, 69 S.Ci. 894 (1949)

Tinker v. Des Moines Independent School District

393 U.S. 503, 21 LEd.2d 731, 89 S.Ct. 733 (1969)

Unued States v. Kelner

$34 F.2d 1020 (2nd Cir. 1976)

Unuted States v. Velasquez

772 F.2d 1348 (7th Cir. 1985)

Watts v. United States, 394 U.S. 705,

22 LEd.2d 664, 89 S.Ct. 1399 (1969)

21

15-19

12

12

13

21

21

2)

- iv -

TABLE OF AUTHORITIES, CONT'D

ONS Oo ONS Page

First Amendment 11, 20, 21, 23, 24

STATUTES

California Penal Code

§ 148 11-13, 15, 19, 20, 22, 24

Code of Ordinance, City of Houston, Texas

§ 34-11(a) 16

eo i «

STATEMENT OF THE CASE

On May 16, 1989, the District

Attorney of San Bernardino County filed an

amended information in the consolidated

proceeding of SCR 47384 and SCR 48604,

which charged petitioner with violation of

California Penal Code section 266i

(pandering, count one), California Penal

Code sections 664/266h (attempted pimping,

count two), California Penal Code section

266h (pimping, count three), California

Penal Code section 316 (maintaining a

disorderly house, count four, a

misdemeanor) and California Penal Code

section 148 (obstructing an office in the

discharge of the duties of that office,

count five, a misdemeanor). {CT 207-209.)

Petitioner pled not guilty. (CT 205.)

Jury trial began on May 16,

1989, and petitioner was found guilty as

charged on all counts. (CT 205, 214-219,

290-294.)

ne

e 2 «

On August 31, 1989,

pronouncement of judgment was withheld and

petitioner was granted supervised

probation for three years on condition he

serve 90 days in county jail, to be served

on weekends. (CT 304-306.) Petitioner's

motion to post bail pending appeal was

granted. (CT 309.)

On September 11, 1990, the

California Court of Appeal, Fourth

Appellate District, Division Two, affirmed

petitioner’s conviction. On November 28,

1990, the California Supreme Court denied

petitioner’s petition for review. Two

justices voted to grant review, although

the record does not show whether they

voted to hear the case on the ground

raised by the petition to this Court.

(Appendix 2 to Petition.)

STATEMENT OF FACTS

On February 10, 1988, Jo Ann

Miller, a San Bernardino County Deputy

Sheriff, was working undercover. She was

posing as 4 prostitute as part of the

investigation of the Palms Motel. The

motel was located at 3424 Cajon Boulevard

in San Bernardino County. (RT 155-156,

186.) At 2:45 in the afternoon she went

to the motel office and asked petitioner,

who was behind the desk, if he had any

rooms which she could rent for a short

time. Petitioner said the minimal rental

was for an hour. Miller rented a room for

an hour for $10. She was not given a key

to the room, nor was she asked to sign a

registration form. (RT 158-160, 186, Exh.

23, p- 1.) Miller went into the motel

room with Deputy Sheriff William Sheble

for 15 to 20 minutes, then left and

returned to the Sheriff's station for a

briefing. (RT 159, 238.)

Fa ip on ee i:

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At about 5 p.m. another deputy,

Lawrence Mosley, rented a room from

petitioner for the evening for $35. To

rent the room he completed a registration

card. (RT 222-223.) From the room Mosley

denies nate and female couples entering

motel rooms without luggage, staying

approximately 30 minutes and leaving. (RT

225.) About an hour after he rented the

room petitioner came to the room and told

Mosley that it was his policy not to allow

the curtains in his motel rooms to be

open. (RT 226.)

Miller returned to the motel at

about 5:00 that evening with Deputy Joe

Miller, who was dressed in civilian

clothes and remained in his truck. She

rented a room from another individual who

was at the clerk's desk for $10. She

stayed in the motel room fifteen to twenty

minutes with the deputy, then left. (RT

161-164, 167, Exh. 23, p. 2.)

— 2

Miller later returned to the

motel with two reserve deputies. She went

to the office to rent a room and

petitioner asked how many people she had.

She responded two, and petitioner said

that she was not allowed to have more than

one person with her in the room at any

time. When she said she would have more

than one person there at a time,

petitioner said she would have to pay $10

per person. (RT 169-170, Exh. 23, p. 3.)

She went back to the car to get more

money, then returned, paid $20, and had a

room rented to her. She did not sign a

registration card. (RT 170-171.) The

male deputies went into the room with

Miller in sequence. Fifteen minutes after

the second deputy went into the room, he

and Miller left together in the same

vehicle. (RT 174.)

At about 7 p.m. Al Barnett, a4

reserve officer acting in an undercover

» @ «

capacity, went to the Palms Motel and

asked petitioner if Miller had been there.

(RT 198-200, Exh. 24, pp. 1-4.)

Miller returned to the motel

shortly after 7:00 with another deputy,

also dressed in civilian clothes.

Petitioner said someone had been asking

for her. He asked Miller if she had asked

someone to meet her there at a certain

time. She said that she did. She asked

petitioner to describe the person,

Barnett, and then she said he was a “high

dollar” person. (RT 175, Exh. 23, pp. 5-

6.) During this conversation petitioner

came over to Miller and, as he talked to

her, touched her around her bare midriff.

(RT 178.) Petitioner rented her a room

for one hour for $10. Again, she neither

signed a registration card nor received a

key to the room. (RT 176.) Miller and

the deputy went into the room. (RT 179.)

While they were in the room a buzzer went

—

off. She went outside the motel and saw

Barnett with petitioner. (RT 179-180.)

Barnett asked petitioner if he

would have to pay for the room, and

petitioner responded that he would. (RT

181-182.) Barnett paid petitioner $10,

then went into the room with Miller. (RT

182-183, 209, 211.) When the undercover

officers left the motel room they arrested

petitioner. (RT 183.)

On April 20, 1988, San

Bernardino Deputy Sheriff Sheble was

driving a van on Mt. Vernon Avenue in San

Bernardino. Officer Lawrence Mosley, was

a passenger in the vehicle. Emma

Henderson waived at the vehicle and, when

it stopped, she got into the van.

Henderson solicited Sheble and Mosley for

sex, and they agreed on a price of $15 per

person. Sheble asked if she had a place

where she comfortable in going. Henderson

said Sheble had a bedroom on wheels, and

» 6 «

Sheble responded he wanted to take a

little more time. He asked if she had a

motel, and Henderson directed them to the

Palms Motel. (RT 131-135, 227-228, 244-

245, 255-256, 262-263.) Henderson had

previously rented rooms at the motel from

petitioner for prostitution. She would be

charged $8 to $12 to use a room for one to

two hours. (RT 137-139.)

At the motel Sheble told

Henderson he did not want to be seen by

the people there and expressed concern

about registering. He asked her how much

money was needed to rent a room, then gave

her a five dollar bill and seven one

dollar bills. (RT 245.)

When Henderson returned she

began to suspect Sheble was a police

officer. She started to walk down the

street and Sheble drove after her. Sheble

demanded to know what had happened to his

money. Henderson replied she did not have

~~

it on her and accused Sheble of being a

police officer. Sheble convinced her that

he was not an officer. She entered the

vehicle and they returned to the motel.

Henderson lead Sheble to room number five.

They did not have a key, but the door was

open. (RT 246-247.)

As they were standing at the

motel room door, petitioner stepped out of

his office and saw Sheble. He began to

yell that Sheble was un undercover police

officer.+’ Petitioner demanded

identification from Sheble and yelled

“you're undercover. You're undercover.”

Henderson fled. Mosley pursued her and

placed her under arrest. Petitioner was

i. Henderson testified that when

she attempted to rent the room

petitioner told her Sheble was an

undercover officer. However, it is

unclear that petitioner would have been

able to see Sheble at that time since

petitioner was in the motel office and

Sheble was in the van. (RT 140.)

» 20

arrested shortly thereafter. (RT 140-143,

227-228, 231-232, 248.)

DEFENSE

al Petitioner rested without

putting on any evidence. (RT 273.)

SUMMARY OF REASONS WHY THE PETITION

SHOULD BE DENIED

The petition for writ of

certiorari does not raise any issues that

merit the exercise of this Court’s

discretionary jurisdiction. The decision

of the Court of Appeal, Fourth Appellate

District, was in full accord with the

prior decisions of this Court, and the

position advanced by petitioner borders on

the frivolous.

wa

Sen

—

A STATUTE WHICH IS DESIGNED TO PREVENT

ANYONE FROM OBSTRUCTING AN OFFICER FROM

THE PERFORMANCE OF DUTY IS NOT DIRECTED AT

FREE SPEECH AND NEED NOT BE A SPECIFIC

INTENT CRIME

In a two part argument,

petitioner contends the trial court

committed error by failing to instruct the

jury that to find him guilty of

obstructing an officer in the performance

of duty, the jury would have to find that

petitioner acted with that specific

intent. He argues that absent such

intent, petitioner engaged in a mere

utterance which was protected by the First

Amendment to the United States

Constitution. (Pet., pp. 13-20.) Because

California Penal Code section 148 is not

directed at speech, the contention does

not reach constitutional dimensions.

Petitioner was convicted of,

inter alia, violating California Penal

os 42

Code section 148, a misdemeanor, which

provided, in pertinent part, at the time

of the offense:

"Every person who willfully

resists, delays or obstructs any

public officer, [or] peace

officer . . . in the 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

imprisonment in a county

be « « «© e®

The crime may be committed by

conduct such as flight to avoid arrest (In

re Gregory S., 112 Cal.App.3d 764, 780,

169 Cal. Rptr. 540, 548 (1980)),

physically attacking an officer (People v.

Powell, 99 Cal.App.2d 178; 221 P.2d 178

(1950)), and harassing an officer so that

the officer is unable to elicit

information (In re Joe R., 12 Cal.App.3d

80, 86; 90 Cal. Rptr. 530, 533 (1970)).

California Penal Code section

148 is a general intent crime, and thus no

instruction on the specific intent with

« 33 @

which the act is performed is required.

(People v. Roberts, 131 Cal.App.3d Supp.

1, 8-9; 182 Cal. Rptr. 757, 760-761

(1982).)

The jury was instructed that to

establish a violation of Penal Code

section 148, the prosecution would have to

prove that petitioner “willfully resisted,

delayed, or cbstructed a peace

officer . . . engaged in the performance

of his duties.” (RT 298.) The jury was

further told that "[a] peace officer is

discharging or attempting to

discharge .. . his duties if he is making

or attempting to make a lawful arrest or

lawfully detaining or attempting to detain

a person for questioning or ’

investigation.” (RT 299.) Thus the jury

was aware that to convict petitioner, it

would need to find that petitioner's

conduct (i.e. shouting “you're undercover.

You're undercover") was committed for the

~——' oe

purpose of obstructing the officer from

arresting or detaining the prostitute. In

this regard the prosecutor argued to the

jury:

", . » [Petitioner] knew that

Miss Henderson, being a

prostitute, would have been

arrested .. . . And s0, by

throwing out a couple of words

indicating that [Sheble] was a

police officer, words that she

would understand, he knew that

he could mess up the

. operation... .

oe ([T]hat is where we get

the charge of obstructing a

police officer during the course

of his investigation... .”

(RT 309-310.)

From the instructions the court

gave, and from the argument of the

prosecutor, the jury was informed that to

find petitioner guilty it would need to

determine that the purpose of his conduct

was to obstruct the officer in the

performance of his efforts to arrest or

detain Miss Henderson. They could not

convict him solely on the basis that he

spoke a few words.

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Petitioner argues that

application of California Penal Code

section 148 to his conduct violates this

Court’s holding in Houston v. Hill, 482

U.S. 451; 96 L.Ed.2d 398; 107 S.Ct. 2502

(1987). Because the statute here is not

directed at speech, petitioner is

incorrect.

In Houston v. Hill, Hill had

observed a friend intentionally stopping

traffic on a busy street, apparently to

enable a vehicle to enter traffic. Two

police officers approached the friend and

began speaking with him. Shortly

thereafter Hill began shouting at the

officers, in an attempt to divert an

officer's attention from the friend. Hill

first shouted “‘Why don’t you pick on

somebody you own size?'* When the officer

asked if Hill was interrupting him in his

official capacity, Hill shouted *‘Yes, why

don't you pick on somebody my size?’*

— 2

(Houston v. Hill, supra, 482 U.S. at pp.

453-454; 96 L.Ed.2d at p. 398: 107 S.Ct.

at p. 2502.)

Hill was prosecuted and

acquitted of violating an ordinance of the

city of Houston which provided:

"(a) It shall be 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.”

(Code of Ordinance, City of

Houston, Texas § 34-ll(a),

quoted at Houston v. Hill,

supra, 451 U.S. at p. 455; 96

L.Ed.2d at p. 408; 107 S.Ct. at

p. 2506.)

Following his acquittal, Hill brought suit

to have the ordinance declared

unconstitutional both on its face and as

applied to him.

Because the provisions of the

ordinance making it unlawful for any

person to assault or strike a police

officer were preempted by the Texas Penal

Code, the only portion of the ordinance at

» 19 «

issue was that directed at speech.

(Houston v. Hill, supra, 451 U.S. at p.

460; 96 L.Ed.2d at p. 411; 107 S.Ct. at

pp. 2508-2509.) This Court concluded that

the ordinance was overly broad in that it

provided the police with unfettered

discretion to arrest individuals for words

or conduct that annoy or offend then.

(Houston v. Hill, supra, 451 U.S. at pp.

465-467; 96 L.Ed.2d at pp. 414-415; 107

§.Ct. at p. 2512.)

In his concurring and dissenting

Opinion in Houston v Hill, Justice Powell

stated:

". « « I question the

implication of the Court's

opinion that the First Amendment

generally protects verbal

‘challenge([s) directed at police

officers,’ [citation]. A

‘challenge’ often takes the form

of opposition or interruption of

performance of duty. In many

situations, speech of this type

directed at — officers will

be functionall

indistinguishable from conduct

that the First Amendment clearly

does not protect. For example,

I have no doubt that 4

—— a

municipality constitutionally

may punish an individual who

chooses to stand near a police

officer and persistently attempt

to engage the officer in

conversation while the officer

is directing traffic at a busy

intersection. Similarly, an

individual, by contentious and

abuse speech, could interrupt an

officer's investigation of

possible criminal conduct. A

person observing an officer

pursuing @ person suspected of a

felony could run beside him in a

public street shouting at the

officer. Similar tactics could

interrupt a policeman lawfully

attempting to interrogate

persons believed to be witnesses

to a crime.” (Houston v. Hill,

supra, 482 U.S. at p. 479, 96

L.Ed.2d. at pp. 423-424; 107

§.Ct.at p. 2519, footnote

omitted.)

In response, the majority

Opinion stated that the concern in Justice

Powell's example was not contentious

speech, but rather that the shouting and

running in the hypothetical might

physically obstruct the officer's

investigation. The majority opinion

stated that such conduct might

constitutionally be punished under «a

» 19 «

tailored statute that forbade individuals

from physically obstructing an officer in

the performance of duty, rather than under

a broad statute aimed at speech. (Houston

v. Hill, supra, 451 U.S. at p. 463, 96

L.Ed.2d at p. 412; 107 S.Ct. at p. 2510,

n. 11.)

California Penal Code section

148 is a statute directed an forbidding

individuals from physically obstructing an

officer in the performance of official

duties. Just as in the hypothetical set

forth in Justice Powell's opinion,

petitioner, by advising Henderson that

Sheble was a law enforcement officer, was

attempting to obstruct the officer from

the performance of official duties, here

by affording Henderson an opportunity to

flee from arrest.”’ Petitioner was not

2. Petitioner urges that no duty

was being discharged because Henderson

was already in constructive police

custody. (Pet., p. 14.) The Court of

Appeal found the distinction petitioner

= 96 «

engaging in free speech, but instead,

conduct designed to frustrate the officer

in the performance of his duties.

Section 148 is not a statute

aimed at speech. The reported decisions

involving it deal almost exclusively with

conduct. The particular conduct here was

conduct (i.e. obstructing an arrest or

investigation) manifested as words. The

First Amendment does not immunize conduct

because the conduct is manifested in

words. (Watts v. United States, 394 U.S.

70S, 707; 22 L.Bd.2d 664; 69 S.Ct. 1399,

asserts unavailing:

*. « « 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 ..

Obyiously, [the officers’

overriding purpose was to

investigate activities at

Patel’s motel and that

operation was ongoing until

Patel caused is premature

termination.” (Pet., Appendix

1, p. 14.)

, e MD «

1401 (1969) [statute prohibiting threats

against the President is constitutional on

its face); United States v. Velasquez, 772

F.2d 1348, 1357 (7th Cir. 1985), cert.

denied 475 U.S. 1021; 89 L.Ed.2d 323; 106

S.Ct. 1211 [threat to retaliate against

informant is not protected by the First

Amendment); United States v. Kelner, 534

F.2d 1020, 1025-1027 (2nd Cir. 1976),

cert. denied 429 U.S. 1022; 50 L.Ed.2d

623; 97 S.Ct. 639 [threat to injure

another is not protected by First

Amendment } . )

Petitioner's action was not

speech manifested as conduct (e.g., Tinker

v. Des Moines Independent School District,

393 U.S. 503; 21 L.Ed.2d 731; 89 S.Ct. 733

(1969) [arm bands worn by high school

students protesting the Vietnam war);

Cohen v. California, 403 U.S. 15; 29

L.Ed.2d 264; 91 S.Ct. 1789 (1971) [wearing

a jacket in a courthouse that said *Puck

» 22 <

the draft”"}), but conduct manifested as

words. Conceptually it was no different

than tackling the officer so he could not

pursue Henderson, or driving 4 getaway car

for the suspect. Such conduct would not

be protected, and does not obtain

constitutional protection by being

manifested in words.

Consequently, California Penal

Code section 148 differs from the

ordinance invalidated in Houston v. Hill

and is constitutionally sound as written.

Moreover, the evil addressed in

Houston v. Hill was that the ordinance was

an effort to criminalize speech directed

at the officer. (fn. 11, supra; Gooding

v. Wilson, 405 U.S. 518; 31 L.Bd.2d 408;

92 S.Ct. 1103 (1972) [etatute which made

it a crime for anyone to direct to

another, in hie presence, “opprobrious

words or abusive language tending to cause

@ breach of the peace” found to be

,

« 33 <

overbroad in context of shouting at a

police officer while picketing against the

war in Vietnam].) The speech here was not

directed at the officer, but at the

suspect.

The balance of cases cited by

petitioner concern protection of speech,

rather than protection of conduct

manifested as words. For example,

Terminiello v. Chicago, 337 U.S. 1; 93

L.Ed. 1131; 69 S.Ct. 894 (1949), involved

the suppression of controversial views

under the rubric of a “breach of the

peace” statute. In contrast, the entire

thrust of the statute and the prosecution

here was petitioner's conduct in

obstructing an officer by warning a

suspect that police were present.

Petitioner fails to raise any

valid First Amendment issue and his

petition should be denied.

e 96 -

II

PETITIONER HAS FAILED TO ESTABLISH THAT

BECAUSE OF THE ALLEGED ERROR IN

INSTRUCTING THE JURY ON HIS OBSTRUCTION

CHARGE HE WAS DENIED A FAIR TRIAL AS TO

THE OTHER OFFENSES FOR WHICH HE WAS

CONVICTED

Petitioner also contends that

the failure to give the instruction

discussed in Argument I for the

misdemeanor offense of obstructing an

officer infected his convictions for three

felonies and another misdemeanor. /(Pet.,

p. 21.) Not only has petitioner failed to

substentiate this claim, but he has failed

to raise a constitutional issue.

Petitioner’s basic position is

that Penal Code section 148, as applied

here, violated his rights under the First

Amendment to the Constitution. He does

mot even claim that his conduct of

pandering, pimping, attempted pimping and

maintaining a disorderly house is

similarly protected.

=

What he does instead assert is

that “(a)ll verdicts were infected by what

must have been confused and easily awry

jury instructions” inasmuch as different

definitions of intent were given for

different crimes. (Pet., p. 21, emphasis

added.) In fact the jury was properly

instructed, since pandering and attempted

pimping are specific intent crimes, and

the jury was instructed on the required

specific intent (RT 295, 297), while

pimping and maintaining a disorderly house

are general intent crimes and the jury was

properly instructed on that element. (RT

294.) These are not confusing and “easily

awry” instructions, these are the law.

Moreover, the jury was told that each

count charged a distinct crime which must

be decided separately. (RT 301.)

The speculation that the jury

was confused is unsubstantiated, and the

—

claim, in any event, does not raise a

constitutional issue.

Petitioner's attempt to

piggyback reversal of his four other

convictions on his claim of denial of

freedom of speech for a misdemeanor

conviction should be recognized for what

it is and dismissed.

» 23 «

CONCLUSION

For all of the reasons stated

above, petitioner has failed to establish

the existence of any issue which merits

the grant of certiorari. The decision of

the Court of Appeal was in accord with the

Constitution and established precedent.

Accordingly, the petition should be

denied.

DATED: May 7, 1991

Respectfully submitted,

DANIEL E. LUNGREN, Attorney General

of the State of California

GEORGE WILLIAMSON, Chief Assistant

Attorney General - Criminal Division

HARLEY D. MAYFIELD, Senior Assistant

Attorney General

ROBERT M. FOSTER

Supervising Deputy Attorney General

4 Ve Jd hvQ7e

M. HOWARD WAYNE th

Deputy Attorney General

Attorneys for Respondent

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