People v. Roman

• Decision Date: 05 December 1967
• Docket Number: Cr. 12654
• Citation: 256 Cal.App.2d 656,64 Cal.Rptr. 268
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Hubert Arthur ROMAN, Defendant and Appellant.

Page 268

64 Cal.Rptr. 268

256 Cal.App.2d 656

The PEOPLE of the State of California, Plaintiff and Respondent, v. Hubert Arthur ROMAN, Defendant and Appellant.

Cr. 12654.

Court of Appeal, Second District, Division 2, California.

Dec. 5, 1967.

Hearing Denied Jan. 31, 1968.

Gilbert F. Nelson, ^* Los Angeles, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Thomas Kerrigan, Deputy Atty. Gen., for respondent.

FLEMING, Associate Justice.

Hubert Arthur Roman appeals a judgment of conviction for second-degree murder, assault with a deadly weapon on a police officer engaged in the performance of his duty, and felony child-beating.

On 3 November 1965, Officer Richard Tapia of the Santa Monica Police Department went to Roman's apartment house in response to a child-beating complaint, and was informed by a resident of the building that she believed the children in Roman's apartment were being beaten. On a previous occasion Officer Tapia had investigated a similar complaint against Roman, and he had once accompanied Mrs. Roman to the apartment to pick up the children after the Romans had quarrelled.

After talking to Roman's neighbor, Tapia went to Roman's apartment and knocked on the open door, which then opened wider and disclosed an apparently unconscious child on the floor. Roman was seated in a chair in the living room. Tapia entered the apartment and examined the child and found welts on the back of its neck and blood in its nostrils. He placed Roman under arrest and called for his sergeant, while Roman attempted to call the FBI for information about his rights.

About the time Sergeant Ronald Wise arrived, Tapia and Roman began to struggle. Wise sent Tapia to call for further assistance. When Tapia returned, Roman had a revolver in his hand and was pointing it at Wise. Wise shouted to Tapia to leave, and as the latter did so Roman fired two shots at him, which missed. Tapia again return to the apartment, was again told to leave by Wise, and was again fired upon by Roman without effect. When Tapia returned for the third time, he saw Roman shoot Sergeant Wise in the stomach. Roman surrendered to the Santa Monica police after he was wounded in an exchange of gunfire.

Wise died early the next morning. That same morning Roman was questioned by a Santa Monica detective who knew that Wise was dead. The detective advised Roman of his right to remain silent and his right to have a lawyer present, and told him that anything he said could be used against him in court. Roman said he shot Wise accidentally but that he had planned to evict the police 'by any means necessary, even (to) shoot them.'

1. Roman contends that Officer Tapia's entry into his apartment was unlawful, that the shooting of Sergeant Wise took place in the course of Roman's resistance to this unlawful invasion of his privacy, and that consequently the shooting resulted from provocation and amounted at most to manslaughter. A related contention is that the trial court erred in instructing the jury as a matter of law that Tapia's entry was proper.

A peace officer may arrest without a warrant '(w)henever he has reasonable cause to believe that the person to be arrested has committed a felony, whether or not a felony has in fact been committed.' (Pen.Code, § 836(3).) Child beating likely to produce great bodily harm or death is a felony. (Pen.Code, § 273a(1).) When Officer Tapia went to Roman's door, he was investigating a complaint of such an offense. On a prior occasion he had observed one of the Roman boys with a black eye and been told by the child that his father had hit him. Before he entered the apartment this time he saw Brian Roman, two years old, 'seated on the floor, his head down and his arms back * * * He appeared unconscious.' His entry into the apartment was justified by what he had seen. 'Necessity often justifies an action which would otherwise constitute a trespass, as where the act is prompted by the motive of preserving life * * *' (People v. Roberts, 47 Cal.2d 374, 377, 303 P.2d 721, 723.)

On entering the apartment Officer Tapia examined the child and noticed that 'It had welts * * * on the back of its neck * * * They appeared to be recent.' He also observed blood around the child's nose. He 'asked the child if its dad had hit him, and he sobbed yes.' Officer Tapia then had reasonable cause to arrest Roman. Appellant's arguments to the contrary are based on the mistaken assumption that the officer was not entitled to take into account what he had seen through Roman's open door and follow it up. But, clearly, a police officer investigating a complaint is not required to disregard what is apparent to any passerby. Having come to the conclusion that the child had been severely beaten and that Roman had done the beating, the officer was justified in making an arrest. The later medical examination of the child's condition did not alter the reasonableness of the officer's conclusion made at the scene. In cases of suspected child-beating we prefer the police to consider any apparent injuries as serious ones until they have satisfied themselves to the contrary.

Even if we assume, contrary to the evidence, that the conduct of Officer Tapia was unlawful, his conduct did not furnish provocation sufficient to excuse Roman's killing of Sergeant Wise as manslaughter. Penal Code, section 834a, adopted in 1957, makes it the duty of any person arrested by a peace officer to refrain from the use of force to resist an arrest. Necessarily, the section removes unlawful arrest by a peace officer from the list of factors capable of furnishing sufficient provocation to reduce murder to manslaughter.

Finally, apart from Roman's statement that he intended to evict the police by any means necessary, even shooting, there was positive evidence that Roman acted with malice. He ordered Sergeant Wise to remove his gun belt, and when Wise said, 'You wouldn't shoot an unarmed man, would you?', shot him.

The court properly instructed the jury as a matter of law that reasonable cause to make the arrest existed. Indeed no other course was feasible since much of the evidence on reasonable cause had been heard outside the presence of the jury in order to avoid prejudice against Roman. (People v. Gorg, 45 Cal.2d 776,...