People v. Callahan
The PEOPLE, Plaintiff and Respondent, v. GERALD NEIL CALLAHAN, Defendant and Appellant
- Area
- criminal
- Panel
- Janice R. Brown (author)
Analysis
The trial court convicted the defendant of uttering offensive words in public under Penal Code section 415, subdivision (3), after a jury acquitted him of the charged offense of interfering with a police officer. The Court of Appeal reversed the conviction, holding that as a matter of law the facts did not support a finding that the defendant's language was inherently likely to provoke an immediate violent reaction.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Conviction for uttering offensive words in public (Pen. Code, § 415, subd. (3))“As a matter of law the facts do not support the conviction.” | de novo | error | agree with court The appellate court applied a de novo standard of review to determine if the facts supported the conviction as a matter of law. It concluded that the defendant's profanity, in the context of a dispute over medical attention and without physical contact or a violent reaction from the officer, was not inherently likely to provoke an immediate violent reaction, thus failing to meet the statutory elements of the offense. |
Authorities
- relied: Cohen v. California (1971) 403 U.S. 15 — Speech that is vulgar or offensive is protected by the First Amendment unless it is inherently likely to provoke a violent reaction or cause a breach of the peace.
- relied: March v. Municipal Court (1972) 7 Cal.3d 422 — A party in a criminal case is entitled to a sufficient record to provide a meaningful appeal, which may include a statement of facts agreed to by both sides.
- relied: People v. Geiger (1984) 35 Cal.3d 510 — Uttering offensive words in public is a lesser related offense to interfering with a police officer.
- relied: People v. Castro (1985) 38 Cal.3d 301 — Unpublished opinions may be cited for persuasive value.
The appellate opinion: sound — The opinion is sound because it correctly applies the First Amendment standard from Cohen v. California to the specific facts, noting the lack of a violent reaction and the context of the speech. It also properly addresses the sufficiency of the record under March v. Municipal Court.
How this analysis was made · dispute it
unusual dispositionAfter a jury acquitted Gerald Callahan of delaying a peace officer (Pen. Code, § 148) but convicted him of the lesser related offense of using offensive words inherently likely to provoke an immediate violent reaction (Pen. Code, § 415, subd. (3)), the appellate department of the superior court affirmed. On transfer, the Court of Appeal held that on the settled statement of facts the profanities Callahan directed at the highway patrolman were, as a matter of law, not fighting words and reversed the judgment.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Conviction under Penal Code section 415, subdivision (3) for uttering offensive words inherently likely to provoke an immediate violent reaction (sufficiency of the facts as a matter of law / First Amendment limits).“As a matter of law the facts do not support the conviction.” | de novo | error (law misapplied) | agree with court Section 415(3) is constitutionally confined to fighting words under Cohen v. California and the California Supreme Court's construction of section 415 in In re Brown. Profanity directed at an on-duty officer, who is expected to exercise restraint and who testified he was not provoked, fits within protected expressive (emotive) speech rather than fighting words, so the result is defensible. The court's reasoning, however, leans on the officer's subjective non-reaction when the statutory test is objective ('inherently likely'), and the court never cites Brown or the Chaplinsky fighting-words line, instead relying heavily on literary digression and an unpublished prior opinion (In re Rowena V.), which weakens the analysis even though the outcome is supportable. |
Trial court's acceptance of the People's proposed settled statement of facts and rejection of Callahan's tender in lieu of a reporter's transcript.“Incomplete though it may be, we look only to the accepted statement of facts.” | unclear | correct | agree with court The court notes that March v. Municipal Court entitles a criminal defendant to a record adequate for meaningful appeal and criticizes the thinness of the record, but it does not find error and confines itself to the accepted statement. Because the court reversed on the accepted statement anyway, any inadequacy did not prejudice Callahan, and the court's choice to proceed on that record is reasonable; the opinion does not articulate a standard of review for the settled-statement ruling. |
Submission of Penal Code section 415, subdivision (3) to the jury as a lesser related offense of section 148 under People v. Geiger.“A jury found Callahan not guilty of violating section 148, but guilty of uttering offensive words in public which were inherently likely to provoke an immediate violent reaction (Pen. Code, § 415, subd. (3)), a lesser related offense” | unclear | not reached | unsure The court cites Geiger only descriptively and does not examine whether the lesser related offense was properly submitted or whether the defendant requested it; the reversal on sufficiency grounds made the question unnecessary. The opinion does not supply enough to evaluate the propriety of the submission. |
Authorities
- relied: Cohen v. California (1971) 403 U.S. 15 — Vulgar expression such as a four-letter word is protected speech; words carry emotive as well as cognitive content, and the state may not criminalize offensive words unless they are fighting words directed at the hearer and likely to provoke violent reaction.
- relied: March v. Municipal Court (1972) 7 Cal.3d 422 — A criminal defendant is entitled to a record sufficient to permit meaningful appellate review; an agreed or settled statement of facts may sometimes suffice.
- relied: People v. Geiger (1984) 35 Cal.3d 510 — A defendant may, on request, be entitled to jury instructions on lesser related offenses supported by the evidence.
- relied: People v. Castro (1985) 38 Cal.3d 301 — Cited by the court as authority permitting reference to its own prior unpublished opinion (In re Rowena V.); Castro's principal holding concerns impeachment with prior felony convictions after Proposition 8, and its support for citing unpublished opinions is thin.
- missed: In re Brown (1973) 9 Cal.3d 612 — The California Supreme Court narrowly construed Penal Code section 415 to reach only conduct or words that tend to incite others to violence (fighting words), the construction the Legislature codified in the 1974 rewrite of section 415 that produced subdivision (3); the binding state-law framework for the fighting-words limit the court applied without citing it.
The appellate opinion: sound with gaps — The reversal is defensible: directing profanity at an on-duty officer who was not provoked, in the course of arguing for medical care, falls within protected emotive speech under Cohen rather than fighting words, and the objective 'inherently likely' standard is hard to meet on these facts. The opinion nonetheless skips the controlling California construction of section 415 in In re Brown, relies in part on the officer's subjective reaction rather than the objective statutory test, leans on an unpublished opinion, and substitutes literary asides for doctrinal analysis.
How this analysis was made · dispute it
record incompleteOpinion — Brown
Opinion
BROWN (Gerald), P. J.A California highway patrolman arrested Gerald Callahan for interfering with the performance of his duty (Pen. Code, § 148), the sole charged offense. A jury found Callahan not guilty of violating section 148, but guilty of uttering offensive words in public which were inherently likely to provoke an immediate violent reaction (Pen. Code, § 415, subd. (3)), a lesser related offense (see People v. Geiger (1984) 35 Cal.3d 510, 521, 525, 526, 527, 531-532 [199 Cal.Rptr. 45, 674 P.2d 1303]). Callahan’s appeal to the appellate department of the superior court went for naught. We ordered transfer to this court (Cal. Rules of Court, rule 62(a)).
The record leaves much to be desired. A party in a criminal case is entitled to a sufficient record to provide him a meaningful appeal. (See March v. Municipal Court (1972) 7 Cal.3d 422, 428 [102 Cal.Rptr. 597, 498 P.2d 437, 66 A.L.R.3d 945].) We do not have a reporter’s or verbatim transcript of the trial. Each party tendered a proposed settled statement of facts. Our Supreme Court says, “Sometimes a statement of the facts agreed to by both sides will be sufficient, ...” (March v. Municipal Court, supra, 7 Cal.3d 422, 428.) Here the trial court accepted the factual statement ten *633 dered by the People and rejected Callahan’s tender. 1 Incomplete though it may be, we look only to the accepted statement of facts. As a matter of law the facts do not support the conviction. 2 We reverse.
I
Soon after midnight Highway Patrolman George received a message to investigate a traffic collision in Solana Beach. He found a truck had struck two parked cars. The truck driver was seated in a lawn chair being attended by several persons, including Callahan’s wife. George thought the driver had a superficial scratch on his forehead. The driver stubbornly refused going to the hospital. George returned to the collision site, anxious to clear the area to eliminate a traffic hazard for persons about to be leaving nearby bars.
When George returned to the truck driver for his statement, Callahan announced he was a doctor, he had examined the driver and thought he required medical attention. Callahan appeared to be intoxicated. George told Callahan the driver had declined medical attention. When Callahan argued with George, the officer again asked the driver if he wanted medical attention. After Callahan’s wife and another person said “Yes,” the driver agreed. George radioed for an ambulance and returned to the collision scene.
While George gathered statements from witnesses, Callahan interrupted and inquired about the ambulance. George said one was on the way. Callahan responded, “Oh bull-shit! Don’t give me that fucking shit.” George warned Callahan not to interfere and turned away to complete his investigation. Callahan followed him, yelling and uttering profanities, interrupting him as he spoke to witnesses, stepping in front of him several times yelling for the ambulance. At least twice he was so close to the officer that he spat 3 in his face as he argued for medical attention.
Three times George warned Callahan to stop interfering or he would arrest him for delaying a police officer in violation of Penal Code section 148. After the third warning, when Callahan called the officer a “fucking asshole,” 4 the officer arrested him.
*634 The entire confrontation lasted between 10 and 20 minutes. There was no direct physical contact between Callahan and George. The officer testified Callahan’s language did not provoke a violent reaction.
II
This nation prides itself as unsurpassed in upholding the freedom of its people to express themselves as they see fit without fear, subject only to certain reasonable conditions prescribed by law.
A land as diverse as ours must expect and tolerate an infinite variety of expression. What is vulgar to one may be lyric to another (Cohen v. California (1971) 403 U.S. 15, 25 [29 L.Ed.2d 284, 293-294, 91 S.Ct. 1780]). Some people spew four-letter words as their common speech such as to devalue its currency; their repetition dulls the senses; Billingsgate thus becomes commonplace. Not everyone can be a Daniel Webster, a William Jennings Bryan or a Joseph A. Ball.
Some writers exalt sex and earthy words to sell their books. Not everyone is a Louis L’Amour, whose hero swears if at all under his breath and whose heroine’s suggestiveness, at most, is to walk away, her shoulders prim, her hips less so.
In 1972 this court considered In re Rowena V (4 Crim. 5237). 5 Rowena, traveling south on Interstate 5, shouted, “You ask me if I give a fuck” to some boys in the next lane. Mrs. Reitsma, a stranger, overheard the phrase and became upset. Reitsma followed Rowena, caused a security officer to stop her, and in the officer’s presence, Reitsma, wrought with righteous rectitude, wrathfuily requested Rowena to repeat the rude and revolting remark. Rowena readily responded with a reprise. Reitsma filed a citizen’s complaint against Rowena. Rowena was convicted of disturbing the peace (Pen. Code, § 415), 6 and was imprisoned. We granted habeas corpus, pointing out the dual communicative function of words, emotive as well as cognitive (Cohen v. California, supra, 403 U.S. 15, 26 [29 L.Ed.2d 284, 294]). We construed Rowena’s remark as being in effect, “You ask me if I give a damn.”
*635 Fifty years ago the words “damn” and “hell” were as shocking to the sensibilities of some people as the Callahan epithet is to others today. 7 The first word in Callahan’s epithet has many meanings. When speaking about coitus, not everyone can be an F. E. Smith (later Earl of Birkenhead) who, in his speech in 1920 in the House of Commons on the Matrimonial Causes Act, referred to “that bond by which nature in its ingenious telepathy has contrived to secure and render agreeable the perpetuation of the species.”
A farmer when asked why he struck his mule on the head with a two by four responded, “I am trying to get his attention.” Here Dr. Callahan was trying to get the officer's attention to a situation he perceived as requiring medical attention. Under these circumstances, Callahan’s epithet was not inherently likely to provoke an immediate violent reaction. The record shows the officer was neither offended by Callahan’s foul language nor provoked to react violently (Cohen v. California, supra, 403 U.S. 15, 20 [29 L.Ed.2d 284, 291]). His only concern was not to be interrupted in performing his duty. The incident lasted 10 to 20 minutes, during which Callahan uttered many profanities, dulling the senses as he argued for medical attention. Officer George warned Callahan several times to stop interfering with him and finally said if Callahan interfered once more he would arrest him for delaying an officer in violation of Penal Code section 148. After that, anything Callahan did which George thought interfered would result in arrest. When Callahan uttered his epithet, George, true to his word, arrested him solely for interfering, for which the jury found Callahan not guilty. The fact Callahan used opprobrious words did not create a Penal Code section 415, subdivision (3) situation.
Judgment reversed.
Staniforth, J., and Butler, J., concurred.
Appellant’s petition for review by the Supreme Court was denied August 1, 1985.
The United States Supreme Court denied a petition for writ of certiorari on January 21, 1986.
Callahan’s proposed settled statement gives a more extensive uncontested background of the event, pointing out, e.g., it occurred in the street in front of his home. He himself was not a motorist at that time. Without this information, one might have the impression Callahan was a traveler on the highway.
Had Callahan been convicted of interfering (Pen. Code, § 148), we would affirm.
In their briefs, both sides say “spittle struck the officer’s face.”
To avoid continuous repetition of the phrase which arguably would assist its passage into parlor parlance, we refer to it as the “Callahan epithet.”
An unpublished opinion to which we may refer (People v. Castro (1985) 38 Cal.3d 301, 323 [211 Cal.Rptr. 719, 696 P.2d 111]).
Penal Code section 415, differently worded in 1972 compared to the section today, provided in relevant part: “Every person who maliciously and wilfully disturbs the peace . . . by tumultuous or offensive conduct or [uses] any vulgar, profane, or indecent language within the presence or hearing of women or children, in a loud or boisterous manner, is guilty of a misdemeanor . . . .”
Who in that earlier generation can forget the shock wave generated by Clark Gable when as Rhett Butler he said to Scarlett, “Frankly, my dear, I don’t give a damn.” (Sidney Howard, screenplay for Gone With the Wind (1939).) Also, “My dear, I don’t give a damn.” (Rhett Butler to Scarlett O’Hara in Gone With the Wind, Margaret Mitchell (1936).) (Familiar Quotations, John Bartlett (15th ed. 1980) p. 848.)
Cites, in this corpus
- People v. Castro Crim. 23605 · 1985-03-11
- People v. Geiger Crim. 23105 · 1984-02-02
- March v. Municipal Court S.F. 22864 · 1972-07-06
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