People v. Belanger
| Decision Date | 26 July 1966 |
| Docket Number | Cr. 11953 |
| Citation | 52 Cal.Rptr. 660,243 Cal.App.2d 654 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Simons Jean Rock BELANGER, Defendant and Appellant. |
Harvey S. Krieger, West Covina, for appellant.
Evelle J. Younger, Dist. Atty., Harry Wood, Chief, Appellate Division, and Donald J. Kaplan, Deputy Dist. Atty., for respondent.
Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty., and Michael T. Sauer, Deputy City Atty., amicus curiae on behalf of respondents.
*
In a complaint filed in the Municipal Court of the El Monte Judicial District, County of Los Angeles, appellant was charged with a violation of section 647, subdivision (f), of the Penal Code, in that he was 'found in a public place, in auto and was therein willfully and unlawfully under the influence of intoxicating liquor in such a condition that he was unable to exercise care for his own safety and the safety of others.' A demurrer to the complaint was overruled, and on November 24, 1965 appellant was found guilty as charged. In the interest of settling an important question of law, the case was transferred to this court for hearing and further decision. (Calif. Rules of Court, Rules 62, 63.)
Section 647, Penal Code, provides in pertinent part as follows: 'Every person who commits any of the following acts shall be guilty of disorderly conduct, a misdemeanor: * * * (f) Who is found in any public place under the influence of intoxicating liquor * * * in such a condition that he is unable to exercise care for his own safety or the safety of others * * *'
The arresting officer testified that he was dispatched to investigate a case of drunk in auto; that upon arriving at the scene he observed the appellant stretched out and apparently asleep in the front seat of his automobile which was lawfully parked with the ignition off along the curb of Valley Boulevard in the City of Rosemead; there were five or six other persons in the area behind a large plate glass window in the ice cream parlor; that after awakening the defendant with difficulty and asking him to step outside of his automobile, he formed the opinion that the appellant was drunk and unable to properly care for himself or his own safety, based upon the strong odor of alcohol on his breath, his bloodshot eyes, the fact that he was unsteady on his feet, his face was flushed, and his speech slurred.
The sole question presented to this court is whether appellant was found 'in any public place' within the meaning of the statute. Appellant contends that there has been no violation of the statute in that 'an automobile is not a public place.' He also contends that since he was not in a public place, he cannot be criminally prosecuted, relying upon In re Koehne, 59 Cal.2d 646, 649, 30 Cal.Rptr. 809, 810, 381 P.2d 633, 634, wherein the Supreme Court, speaking of section 647, subdivision (f), stated that 'the Legislature has by implication provided that intoxication in a place which is not a public place but is exposed to public view should not be criminal.'
Under the 'public drunkenness' statutes of some of the states it has been held that exposure to public view may be a violation of the particular statute involved (see 28 C.J.S. Drunkards § 14, subd. (b), p. 561), and one court, in applying a disorderly conduct statute which provided that 'If any person behaves in a riotous or disorderly manner in any street, highway, public building, or any other public place * * * he shall be guilty of a misdemeanor,' adopted a dictionary definition of 'public place' as 'Any place so situated that what passes there can be seen by any considerable number of persons, if they happen to look.' (Hackney v. Commonwealth, 186 Va. 888, 45 S.E.2d 241, 242, 243.) In California the Legislature has provided that certain acts shall constitute disorderly conduct whether in a public place or 'in any place open to the public or exposed to public view' (Pen.Code, § 647, subds. (a), (c); see also Pen.Code, § 415 under which one may disturb the peace although the conduct is not in a public place). It is settled, however, that under subdivision (f) of section 647, the offender must be physically present in a public place. (In re Koehne, supra; People v. DeYoung, 228 Cal.App.2d 331, 337, 39 Cal.Rptr. 487.) It is therefore immaterial whether appellant was exposed to public view in the instant case. It is likewise immaterial whether appellant's conduct was such as to interfere with or obstruct or prevent the free use of any street, sidewalk or other public way (Pen.Code, § 647, subd. (f)), since he was not charged with or convicted of violating that portion of the statute. The charge herein is with being drunk in a 'public place' and, in our opinion, one sitting in an automobile upon the street is in a public place as contemplated by the statute.
We think it is obvious that public streets and highways are public places (Veh.Code, §§ 360, 590), and a parking strip, comprising the portion of a paved city street adjacent to the curb, is a part of the street (Shachunazarian v. Widmer, 159 Cal.App.2d 180, 184, 323 P.2d 865). 'A public place has been defined to be a place where the public has a right to go and to be, and includes public streets, roads, highways, and sidewalks * * *' (28 C.J.S. Drunkards § 14, p. 560.) 'One definition of 'public' given by Webster is 'Open to common, or general use, participation, enjoyment, etc.; as, a Public place, tax, or meeting. Specif.: A Open to the free and unrestricted use of the public; as, a Public park or road. * * * "
Certainly, if appellant had been found in the state of intoxication indicated standing, walking, 1 sitting or lying upon the street, it could not be contended that such conduct was not a violation of the statute. Does the automobile, in which appellant was sitting, create insulation so as to prevent his presence in a public place? We think not. California courts, although not having had the question specifically presented to them, have impliedly held that presence in a parked automobile, under the conditions specified in section 647, subdivision (f), if presence in a public place and constitutes a violation of said section. In Mardis v. Superior Court, 218 Cal.App.2d 70, 75, 32 Cal.Rptr. 263, defendant was found asleep and in an apparently intoxicated condition in the back seat of a car parked at the side of a highway. The court states that the officer 'had reasonable and probable cause to arrest the defendant for an offense being committed in his presence, namely, 'disorderly conduct,' by being found in a public place under the influence of intoxicating liquor '* * * in such a condition that he is unable to exercise care for his own safety or the safety of others * * *' (Pen.Code, § 837, subd. 1; Pen.Code, § 647, subd. (f).)' Similarly, in People v. Pearsall, 216 Cal.App.2d 196, 30 Cal.Rptr. 777, a police officer saw the defendant sitting in the left front seat of an automobile which was parked in front of a liquor saloon. He aroused defendant by tapping on the car window, and then asked him to step to the sidewalk. Defendant went there, and the officer observed that his condition was stuporous, his eyes were bloodshot, and there was an odor of alcoholic beverage on his breath. The officer, after forming the opinion that defendant was drunk and unable to care for himself, placed him under arrest for violating section 647, subdivision (f). A search was upheld as incident to lawful arrest.
In People v. Robinson, 62 Cal.2d 889, 44 Cal.Rptr. 762, 402 P.2d 834, the officers received a call from the police station to the effect that two men in a car were drunk; they located the car and followed it for several blocks, observing that it was proceeding in a wobbling manner. The officers stopped the car and, upon investigation, observed that the two men were apparently intoxicated. The court states (p. 894, 44 Cal.Rptr. 765, 402 P.2d 837) that
In the above cases the question was whether there was a probable cause for the arrest in order to justify a search made as an incident thereto. The clear import of the decisions is that an intoxicated person found in a vehicle parked upon a public street or highway is in a 'public place.' Were it otherwise, the officers would not have been justified in making an arrest, without a warrant, based upon 'reasonable cause to believe that the person to be arrested has committed a public offense in his presence.' (Pen.Code, § 836, subd. 1.)
Courts in other jurisdictions have specifically determined the question here involved in the affirmative.
Walker v. State, 171 Tex.Cr.R. 379, 350 S.W.2d 561. The sheriff found the appellant asleep in his automobile in the...
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