People v. Burns

• Decision Date: 12 December 1961
• Docket Number: Cr. A
• Citation: 198 Cal.App.2d Supp. 839,18 Cal.Rptr. 921
• Court: California Superior Court
• Parties: 198 Cal.App.2d Supp. 839 The PEOPLE of the State of California, Plaintiff and Respondent, v. Edward H. BURNS, alias Edward H. Burruss, Paul Harold Wells, Harry Bishop Coleman, Gary Ronald Warila, Henning De Linde, and Paul Wimberly Plotts, Defendants and Appellants. 3250. Appellate Department, Superior Court, San Diego County, California

Page 921

18 Cal.Rptr. 921

198 Cal.App.2d Supp. 839

The PEOPLE of the State of California, Plaintiff and Respondent, v. Edward H. BURNS, alias Edward H. Burruss, Paul Harold Wells, Harry Bishop Coleman, Gary Ronald Warila, Henning De Linde, and Paul Wimberly Plotts, Defendants and Appellants.

Cr. A. 3250.

Appellate Department, Superior Court, San Diego County, California.

Dec. 12, 1961.

As Modified Jan. 15, 1962.

Harelson, Enright, Von Kalinowski & Levitt by Gordon E. Von Kalinowski, San Diego, for defendants and appellants.

Alan M. Firestone, City Atty., by William W. Coppinger, Deputy City Atty., San Diego, for plaintiff and respondent.

Before GLEN, P. J., and MONROE and TOOTHAKER, JJ.

BY THE COURT.

Defendants appeal from a judgment of conviction of a violation of Section 148 of the Penal Code (Resisting Public Officers in the Discharge of their Duties), and from an order denying their motion for a new trial.

No question is raised as to the sufficiency of the evidence, the sole issue being whether the trial court erred in refusing to instruct the jury as follows:

(a) 'You are instructed that while it is the duty of every citized to submit to lawful arrest, whether by an officer or a private person, reasonable resistance to an unlawful arrest may rightfully be made either by the person sought to be arrested or by third persons acting in his aid.

(b) 'You are instructed that if an arrest is unlawful, either the person being arrested or others acting in his behalf may resist, using no more than reasonable force sufficient to prevent the unlawful arrest.'

The trial court instructed the jury in accordance with the language of Penal Code, Section 834a (adopted in 1957), 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.'

Appellants contend that this section does not deprive a person of the right to resist an unlawful arrest. They contend further that if said section be interpreted to require submission to an unlawful arrest, then it is unreasonable and void and in violation of their constitutional rights.

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 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. 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.

It is true that prior to the enactment of Section 834a there were many California cases stating that one may resist an unlawful...