Opinion
For Opinion on Hearing, see 74 Cal.Rptr. 713, 450 P.2d 33.
Thomas C. Lynch, Atty. Gen., by Daniel J. Kremer and Marjory E. Winston Parker, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.
James E. Burden, Oakland (court appointed), for defendant and appellant.
JANES, Associate Justice pro tem.
Defendant was charged by information with one count of burglary (Pen.Code, § 459) and one count of battery upon a peace officer (Pen.Code, §§ 242, 243). Three prior convictions of burglary were also alleged, two in the State of Texas and one in the State of California. After a trial by jury he was acquitted of the burglary charge and convicted of battery upon a peace officer. The jury found to be true the allegations of the previous convictions in Texas, but made no finding on the count charging the California prior. Judgment was entered, defendant was sentenced to prison and he appeals.
The relevant statutory provisions (so far as here material) provide: 'A battery is any willful and unlawful use of force or violence upon the person of another.' (Pen.Code, § 242.) '* * * When [battery] is committed against the person of a peace officer * * * and the person committing the offense knows or reasonably should know that such victim is a peace officer * * * engaged in the performance of his duties * * * and such peace officer * * * is engaged in the performance of his duties, the offense * * * [is a felony].' (Pen.Code, § 243.)
SUMMARY OF THE FACTS
It is not necessary to review the facts relating to a burglary which took place prior to defendant's arrest as the jury acquitted defendant of the burglary charge. The evidence surrounding the At approximately 3:15 a.m. the victim, Lt. Riley of the Stockton Police Department, responded to the report of a prowler at a residence on South San Joaquin Street in Stockton. While investigating the report at that address the officer heard children screaming farther down the street and proceeded south to the corner of South San Joaquin and Third Streets. Children there told him that a male Negro had been in their house and had run west on Third Street toward Hunter (a street which parallels South San Joaquin). Riley immediately drove his patrol car west on Third Street for one block and turned north on Hunter. As he did so, he heard a broadcast from another patrol car at the scene describing the suspect as a male Negro, about 6 feet tall, wearing a white shirt and tan trousers.
Defendant urges that to the extent the evidence relating to the burglary overlaps and conflicts with facts essential to support the conviction of battery, this court must accept the facts impliedly found by the jury in support of the verdict of acquittal on the burglary count. The factual issues relevant to such a contention are primarily the defendant's attire and the direction in which he was walking when first by the officer. No authority is presented for the approach suggested by defendant and we are aware of none. We examine the record, therefore, and review the battery conviction in the light of the rule that assumes in favor of the verdict the existence of every fact which the jury could reasonably have deduced from the evidence. (People v. Newland, 15 Cal.2d 678, 104 P.2d 778: People v. Robbins, 225 Cal.App.2d 177, 184, 37 Cal.Rptr. 244.)
As Riley approached the intersection of Hunter and Second Streets, he saw the defendant walking north on the east side of Hunter, just crossing the intersection of Hunter and Second Streets. Defendant was wearing a white shirt and light brown trousers. Riley drove the patrol car alongside defendant, just north of the intersection, and called to him to stop. The defendant stopped and Riley stepped out of the driver's side of the patrol car and walked around to the front of the car. Although the patrol car was an unmarked unit, its headlights were burning and the officer was in full uniform, including his badge, nameplate and a white helmet.
As Riley approached the sidewalk, defendant asked him what he wanted; Riley replied that the defendant was under arrest for investigation of burglary and that he would have to get into the car and go with the officer. Defendant started to back away. The officer reached for the defendant's arm in order to search him and ordered him to drop the stick which he had in his hand. As the officer touched his arm, defendant struck the officer on the head with an 18-inch length of broom handle. The two grappled and a violent struggle followed, during part of which the defendant had the broomstick in his hand, and in the course of which the officer used his night stick repeatedly; both participants took a large amount of punishment. Several times during the struggle the officer repeated to the defendant that he was under arrest, to which defendant replied that the officer would have to kill him to take him. Although Riley succeeded at one point in getting a handcuff on one of defendant's wrists, the defendant was not completely subdued until other officers arrived at the scene and came to Riley's aid.
DEFENDANT'S TESTIMONY
Defendant denied any complicity in the burglary and contradicted substantially Lt. Riley's account of the events leading up to the arrest and affray, although he admitted an awareness from the uniform and helmet that Riley was a police officer. He testified that he was walking south, toward the scene of the burglary, and not north, on Hunter Street when accosted by the officer; that he was wearing a yellow and not a white shirt; that he hit the officer only after the officer twisted his arm and struck him on the head; and that he had nothing in his hands at any time during or before the struggle.
On several key issues the defendant's testimony is corroborated but only superficially by the testimony of Lt. Riley. People v. Wright,
CONTENTIONS ON APPEAL
Reversal of the judgment is sought upon the claimed insufficiency of the evidence to support the conviction of felonious battery. Defendant contends that the arrest which preceded and provoked his conduct was without probable cause and therefore unlawful; that a peace officer is not 'engaged in the performance of his duties' during the course of an unlawful arrest, and hence that a necessary element of the offense of battery upon a peace officer is lacking. He further contends that the arrest was unlawful also because the arresting officer used an excessive amount of force in making the arrest and that he was justified, therefore, in forcibly resisting the arrest and in committing in the course of such resistance the acts for which he was convicted. Additionally, he contends that a statute which purports to impose upon him a duty to submit to an unlawful arrest is violative of his rights under the state and federal Constitutions.
Defendant further charges that the findings on the two prior convictions of burglary are unsupported by the evidence and that the trial judge, rather than the jury, should have determined whether defendant was adequately represented by counsel in the Texas proceedings resulting in the prior convictions. Other related contentions are noted in the course of this opinion.
THE BATTERY CONVICTION
We turn first to the question whether Lt. Riley had probable cause to arrest the defendant.
Probable cause has been defined to be 'such a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.' (People v. Ingle, 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 17, 348 P.2d 577, 580.
If, in fact, there was probable cause for the defendant's arrest and the arrest was accomplished without the use of excessive force, defendant's attack upon the battery conviction must fail. We have concluded, however, that there was no reasonable or probable cause for the defendant's arrest.
Whether there is probable cause to arrest a suspect without a warrant depends in each case upon the facts and circumstances presented to the officer at the time he is required to act. (People v. Ingle, supra, p. 414, 2 Cal.Rptr. 14, 348 P.2d 577.) Circumstances short of probable cause to make an arrest may, of course, justify an officer's invasion of a person's right of privacy by stopping him on the street for questioning. (People v. Mickelson, 59 Cal.2d 448, 450, 30 Cal.Rptr. 18, 380 P.2d 658.) Clearly, Lt. Riley, in the proper discharge of his duties, could have taken the latter course when he first observed the defendant walking, at a late hour, near the scene of the burglary and under the other circumstances shown by the evidence. In our view, however, the circumstances and facts known to the officer were insufficient to justify the immediate arrest. Lt. Riley actually had very little information available at the time he placed the defendant under arrest. He knew of the reported burglary and the direction in which the suspect had fled. A cursory description of the suspect had been broadcast, and he knew the suspect's race. The hour was late, he was in fresh pursuit, and he observed the defendant walking in a direction away from and within several blocks of the scene of the reported burglary. When called upon to stop, however, the defendant did so; he did not attempt to flee nor did he exhibit any suspicious or furtive conduct. Lt. Riley made no attempt to question the defendant or to detain him awaiting the arrival of assistance but immediately placed him under arrest. Although the defendant had a broomstick in his hand, he made no attempt to use it (or other show of violence) until after the officer announced his arrest and attempted to handcuff him. These circumstances would have justified the officer in detaining the defendant for questioning and in taking precautions for his own safety; they did not constitute probable cause for the arrest. (People v. Mickelson, supra, 59 Cal.2d, p. 454, 30 Cal.Rptr. 18, 380 P.2d 658.) Contrary cases cited by the Attorney General are distinguishable on their facts; in each such case there were additional circumstances present, such as high speed flight, evasive or other suspicious action, or more positive identification of the suspect; and in most of them it was furtive conduct and suspicious circumstances occurring in the investigatory stage which gave rise to probable cause to arrest. (See People v. Williams, 67 A.C. 167, 60 Cal.Rptr. 472, 430 P.2d 30; People v. Schader, 62 Cal.2d 716, 44 Cal.Rptr. 193, 401 P.2d 665; People v. Wright, 216 Cal.App.2d 866, 31 Cal.Rptr. 432; People v. Nichols, 196 Cal.App.2d 223, 16 Cal.Rptr. 328.)
In view of our conclusion that there was no probable cause for the arrest, it is unnecessary to discuss the question whether Lt. Riley exceeded the amount of force reasonably necessary to make the arrest, except to point out that this is a decision to be made by the trier of fact and when it is made upon sufficient, although conflicting, facts, an appellate court will not determine the weight of the evidence.
APPLICATION OF SECTION 834a
It does not follow from the unlawfulness of the arrest that the battery conviction must be set aside.
Prior to the Legislature's adoption in 1957 of section 834a of the Penal Code it was the undoubted rule in California that an officer making an unlawful arrest was not engaged in the proper discharge of his duties and that a person could use reasonable force to resist the unlawful arrest. (People v. Spinosa, 115 Cal.App.2d 659, 664, 252 P.2d 409; Jackson v. Superior Court, 98 Cal.App.2d 183, 189, 219 P.2d 879.)
The Legislature expressed a clear intent to abrogate the old rule and to set forth a new policy in this state by enactment of section 834a, which provides: 'If a person has knowledge, or by the exercise of reasonable care, should have knowledge, that he is being arrested by a peace officer, it is the duty of such person to refrain from using force or any weapon to resist such arrest.'
It is apparent from its language that the new section requires a person who is being arrested to refrain from using force, whether the arrest is lawful or unlawful. Accordingly, it has been held in a prosecution for resisting arrest that it was not error to refuse an instruction that a person may reasonably resist an unlawful arrest, and to instruct instead in the language of section 834a that it is the duty of a person having knowledge that he is being arrested by a peace officer to refrain from using force or a weapon to resist such arrest. (People v. Burns, 198 Cal.App.2d Supp. 839, 18 Cal.Rptr. 921.) 'We have concluded that section 834a is clear and unambiguous and that the intent of the Legislature in adopting this new section was to do away with the former rule that a person could resist arrest if the attempted arrest were unlawful. * * * The former rule inevitably led to riots and violence by fostering a belief on the part of many people that they were the sole judges as to whether their arrest was or was not proper. Those persons who were inclined to resist or escape found a ready excuse in stating that the resistance or escape was because of a belief in the unlawfulness of the arrest.
'It should be noted that the new section does not eliminate the right of a person improperly arrested to pursue his lawful remedies against the peace officer. It merely eliminates his right to the use of force at the time of the arrest and requires him to seek his redress by resort to the courts, rather than by resort to violence.' (People v. Burns, supra, p. 841, 18 Cal.Rptr. p. 922.)
The rule stated by Burns has been followed in a number of later California cases. (See Pittman v. Superior Court, 256 A.C.A. 902, 64 Cal.Rptr. 473; People v. Hooker, 254 A.C.A. 988, 62 Cal.Rptr. 675; People v. Gaines, 247 Cal.App.2d 141, 55 Cal.Rptr. 283; People v. Baca, 247 Cal.App.2d 487, 55 Cal.Rptr. 681; In re Bacon, 240 Cal.App.2d 34, 49 Cal.Rptr. 322.) In People v. Gaines, supra, it was stated (246 Cal.App.2d p. 146, 55 Cal.Rptr. p. 287): '[E]ven if reasonable cause for arrest were lacking, defendant's assault on the officer would not have been justified. Penal Code section 834a establishes a duty to submit to arrest by one whom the arrestee should know to be a peace officer regardless of whether the arrest is lawful or not. (In re Bacon, 240 Cal.App.2d 34, 49 Cal.Rptr. 322.)'
The strength of the later cases following Burns is lessened in relation to the case at bench by the fact that the arrest, in each reported instance, was either plainly lawful or arguably so. But we find no distinction in the statute between lawful and unlawful arrests. As was stated in Burns (198 Cal.App.2d Supp. at p. 841, 18 Cal.Rptr. at p. 922): '* * * The section does not say that it is the duty of a person to refrain from using force only if he is being lawfully arrested. Rather, it requires him to refrain from using force whenever he has or should have knowledge that he is being arrested by a peace officer.'
We conclude, therefore, that notwithstanding the unlawfulness of the defendant's arrest, the evidence adequately supports the verdict convicting him of violation of section 242, unless such interpretation and application of the statute are violative of his constitutional rights.
Defendant attacks the constitutionality of section 834a if it is construed as imposing a duty to refrain from resisting an unlawful arrest. Based upon the Fourth Amendment of the United States Constitution, applicable to the states under the Fourteenth Amendment and article I, section 19, of the California Constitution, he contends that such interpretation is violative of the prohibition against unreasonable search and seizure. Additionally, he contends that such construction is an effective denial of due process of law under both federal and state Constitutions. (U.S.Const., Amend. XIV, as it incorporates Amend. V and Cal.Const., art. I § 13.)
The constitutional argument was raised in Burns, supra, but not with the specificity undertaken by defendant. The court there answered: 'We conclude further that section 834a does not constitute an unwarranted invasion of appellant's constitutional and fundamental rights, and that it is a reasonable exercise of the police power. The rights of all individuals are subject to reasonable regulation, and on proper occasion must be restricted for the common good.' (198 Cal.App.2d Supp., p. 841, 18 Cal.Rptr., p. 922.) The problem attacked by the Legislature was an obvious one and the purpose of the statute is equally clear. It is designed not only to reduce some of the dangers attending the hazardous, yet vital, occupation of law enforcement but to benefit the common good by removing the controversy regarding the lawfulness of an arrest from the street to the courtroom. '* * * The result is to reduce still further the possibility of street brawls occasioned by a claim that the officer was more forceful than the arrestee regarded as necessary and to leave that issue, like the issue of lawful arrest, to judicial and not to pugilistic settlement.' (People v. Baca, supra, 247 Cal.App.2d, p. 496, 55 Cal.Rptr., p. 687.)
We are satisfied that the constitutional argument must be rejected as it was in Burns. The rights asserted by defendant are not absolute and unbending but are circumscribed by the requirements of the public good; they cannot operate as a restriction upon the basic power of the Legislature to enact reasonable police regulations. (See Ikuta v. Ikuta, 97 Cal.App.2d 787, 218 P.2d 854.)
THE PRIORS
There is some confusion in the record relative to defendant's prior convictions. The information charged three prior convictions: two burglary convictions in Texas on April 19, 1962 (first and second priors), and a burglary conviction in San Joaquin County, California, on December 2, 1965 (third prior). The jury returned a verdict of 'True' as to the first and second priors but made no finding as to the third prior. The judgment, responsive to the verdict, contains findings that defendant was convicted of the two prior burglaries allegedly committed in Texas. The certified records of the Texas court, admitted into evidence, show that defendant was convicted in Texas of one burglary and of one theft of property of the value of $50 or more. No previous conviction of the latter offense was alleged in the information nor does the judgment reflect it. Moreover, even if proved, a finding under the theft count could not be supported as a previous conviction of felony under California law. (In re Wolfson, 30 Cal.2d 20, 23, 180 P.2d 326.) The finding made on the second prior is unsupported by the evidence and cannot stand.
Failure to make a finding on this count is equivalent to a finding in favor of the defendant on the issue. (People v. Huffman, 248 Cal.App.2d 260, 261, 56 Cal.Rptr. 255.)
Defendant attacks the finding on the first prior upon the ground that he was not informed of his right to counsel when he pleaded guilty in the Texas proceeding, and that he did not know that he was being so represented, citing the recent cases of In re Woods, 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913; In re Luce, 64 Cal.2d 11, 48 Cal.Rptr. 694, 409 P.2d 918, and In re Tucker, 64 Cal.2d 15, 48 Cal.Rptr. 697, 409 P.2d 921, for the proposition that the prior conviction therefore cannot be allowed to stand. The argument is oversimplified. In the cited cases the records were silent as to whether the petitioners had been advised of their right to counsel or had intelligently waived that right. The record before us discloses that defendant was represented by counsel who was present at the time of entry of the guilty plea in the Texas court. Defendant testified before the jury as to the fact and circumstances of that representation, and the questions of his credibility and the weight of the evidence were for the jury to decide.
Defendant cotends further that his representation in the Texas proceeding was inadequate and that the question of adequacy is a mixed question of law and fact for decision by the trial judge rather than the jury. The question of adequacy of representation by counsel in Texas arose for the first time at the trial during the course of defendant's
DEFENDANT'S REMAINING CONTENTIONS
Defendant charges that the court's instructions to the jury regarding the battery charge and the prior convictions of felony were erroneous and prejudicial.
The trial court instructed the jury on the elements of simple battery (Pen.Code, § 242) and on the elements of the aggravated battery (§ 243). The instructions covered the law of arrest and the provisions of section 834a. At the defendant's request instructions were read on the law of self-defense and upon the effect of an act committed under a mistake of identity or other mistake of fact. The court instructed upon the use of prior convictions of felony for impeachment purposes, if the jury found such prior convictions, and upon the issues posed by the allegations of prior convictions, including the jury's duty to find whether the defendant was adequately represented by counsel in regard to either or both of the prior convictions alleged in the State of Texas. All other necessary instructions were given. Defendant's attack upon the instructions regarding arrest and self-defense are really a criticism of the order in which the instructions were read. The trial court advised the jury, however, that the order in which the instructions are given has no significance as to their relative importance, and it must be assumed that the jurors followed the direction. An examination of the instructions as a whole convinces us that there was no unfairness or misdirection of the jury. What we have said thus far on the subject of the battery and the prior conviction disposes of defendant's argument that there was error in those instructions.
Lastly, defendant contends that he was denied adequate representation and assistance of counsel at trial, citing People v. Ibarra, 60 Cal.2d 460, 34 Cal.Rptr. It is apparent that the court and counsel were all confused in failing to note the discrepancy between the crime of theft reflected in the Texas records and that charged by the second prior in the information. It does not follow from this, however, that the trial was reduced to a stage which amounted to denial of the effective aid of counsel or violated defendant's right to counsel. The defendant testified freely on his direct examination as to the burglary conviction in Texas and to a California burglary, apparently the subject of the third prior, as to which he had served time in the San Joaquin County jail. It is unlikely that the verdict on the battery count would have been different if the allegation of the second prior had been stricken before submission of the case to the jury.
The records of the Texas court were already in evidence and before the jury at this time.
It is notable that the jury acquitted the defendant on the burglary count, although he was identified at trial by the victim, and it is plain from an examination of the entire record that the effectiveness of trial counsel's cross-examinaton contributed materially to this disposition. Upon an examination of the entire case we cannot find that the trial was reduced to the state condemned by Ibarra.
The judgment is affirmed as to the conviction of violation of section 242 of the Penal Code and the finding on the first prior and is reversed as to the finding of 'True' on the second prior contained in the information. The case is remanded to the trial court with directions to arraign and sentence the defendant upon the judgment as so modified.
PIERCE, P. J., and REGAN, J., concur.