People v. Curtis

• Citation: 450 P.2d 33,70 Cal.2d 347,74 Cal.Rptr. 713
• Decision Date: 13 February 1969
• Docket Number: Cr. 12665
• Parties: , 450 P.2d 33 The PEOPLE, Plaintiff and Respondent, v. Albert Allen CURTIS, Defendant and Appellant.
• Court: United States State Supreme Court (California)

Page 713

74 Cal.Rptr. 713

70 Cal.2d 347, 450 P.2d 33

The PEOPLE, Plaintiff and Respondent, v. Albert Allen CURTIS, Defendant and Appellant.

Cr. 12665.

Supreme Court of California,

In Bank.

Feb. 13, 1969.

Rehearing Denied March 12, 1969.

James E. Burden, Oakland, under appointment by Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Daniel J. Kremer and Marjory E. Winston, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

Defendant Albert Allen Curtis appeals from a conviction of battery upon a peace officer, a felony. (Pen.Code, § 243.) He challenges both the construction and the constitutionality of Penal Code, section 834a and the second sentence of Penal Code, section 243, as applied to an allegedly unlawful arrest. We conclude that the proper construction of these sections requires a reversal of defendant's conviction.

Defendant was arrested on the night of July 9, 1966, by Lt. Riley of the Stockton Police Department. Riley was investigating a report of a prowler and had received a cursory description of the suspect as a male Negro, about six feet tall, wearing a white shirt and tan trousers. While cruising the neighborhood in his patrol car, the officer observed defendant, who matched the foregoing general description, walking along the street. Riley pulled up next to defendant and called to him to stop; defendant complied. The officer then emerged from his patrol car in full uniform and told defendant he was under arrest and would have to come along with him. Riley reached for the arm of defendant, and the latter attempted to back away. A violent struggle ensued, during which both men were injured and defendant was finally subdued and taken into custody by several officers.

Defendant was subsequently acquitted of a charge of burglary, but was convicted of battery upon a peace officer. He challenges this conviction on several grounds.

I

Defendant initially contends that his arrest was unlawful due to a lack of probable cause and that it was accomplished by the use of excessive force, and therefore his resistance was justified. Under the general common law rule prevailing in most states, an unlawful arrest may be resisted reasonably, and excessive force used by an officer in effecting an arrest may be countered lawfully. Until 1957, this rule prevailed in California. (E.g., People v. Spinosa (1953) 115 Cal.App.2d 659, 664, 252 P.2d 409.) However, as we shall first discuss, Penal Code section 834a, enacted in 1957, revised the first aspect of that rule.

Section 834a provides: 'If a person has knowledge, or by the exercise to 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.' This section, adapted almost verbatim from the Uniform Arrest Act (1942) 28 Virginia Law Review 315, 345, omitted the language in section five thereof which explicitly imposed the duty to refrain from resisting an arrest by force 'regardless of whether or not there is a legal basis for the arrest.' Moreover, section 834a follows immediately section 834, which defines 'arrest' as 'taking a person into custody, in a case and in the manner Authorized by law.' ¹ (Italics added.)

Nonetheless, it has been consistently held that section 834a prohibits forceful resistance to unlawful as well as lawful arrests. (E.g., People v. Rhone (1968) 267 A.C.A. 711, 719, 73 Cal.Rptr. 463; Pittman v. Superior Court (1967) 256 Cal.App.2d 795, 797, 64 Cal.Rptr. 473; People v. Burns (1961) 198 Cal.App.2d Supp. 839, 18 Cal.Rptr, 921, cited with approval in People v. Coffey (1967) 67 Cal.2d 204, 221 fn. 18, 60 Cal.Rptr. 457, 430 P.2d 15; see, e.g., People v. Gaines (1966) 247 Cal.App.2d 141, 146, 55 Cal.Rptr. 283; Selected 1957 Code Legislation (1957) 32 State Bar J. 501, 609--610.) The legislative history of section 834a strongly supports this construction. (See, e.g., Report of the Senate Interim Judiciary Committee, Appendix to Journal of the Senate (1957) vol. 1, pp. 435--436, 456.) General acceptance of this apparent intent and its adoption by courts without serious question for more than a decade cannot be ignored at this late date. (People v. Hallner (1954) 43 Cal.2d 715, 719--721, 277 P.2d 393; cf. State Comp. Ins. Fund v. McConnell (1956) 46 Cal.2d 330, 340--341, 294 P.2d 440.) We find no reason to reject the firmly-established judicial construction of section 834a. ² We hold, therefore, that section 834a prohibits forceful resistance to unlawful as well as lawful arrests. Immediately, however, we are met with a challenge to the constitutionality of that construction; it is said to violate the Fourth Amendment's prohibition against unreasonable seizures and the due process clause of the Fourteenth Amendment.

An arrest is a 'seizure' and an arrest without a warrant or probable cause is 'unreasonable' within the purview of the Fourth Amendment. (E.g., Terry v. Ohio (1968) 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889; id. at p. 37, 88 S.Ct. 1868 (dissent); Wong Sun v. United States (1962) 371 U.S. 471, 479, 83 S.Ct. 407, 9 L.Ed.2d 441; Henry v. United States (1959) 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134.) If section 834a, by eliminating the remedy of self-help, facilitates or sanctions arrests which are by definition unlawful, it could be urged with considerable persuasion that defendant's constitutional rights would be violated by the statute.

While defendant's rights are no doubt violated when he is arrested and detained a matter of days or hours without probable cause, ³ we conclude the state in removing the right to resist does not contribute to or effectuate this deprivation of liberty. In a day when police are armed with lethal and chemical weapons, and possess scientific communication and detection devices readily available for use, it has become highly unlikely that a suspect, using Reasonable force, can escape from or effectively deter an arrest, whether lawful or unlawful. His accomplishment is generally limited to temporary evasion, merely rendering the officer's task more difficult or prolonged. Thus self-help as a practical remedy is anachronistic, whatever may have been its original justification or efficacy in an era when the common law doctrine permitting resistance evolved. (See, e.g., Note (1967) 7 Natural Resources J. 119.) Indeed, self-help not infrequently causes far graver consequences for both the officer and the suspect than does the unlawful arrest itself. Accordingly, the state, in deleting the right to resist, has not actually altered or diminished the remedies available against the illegality of an arrest without probable cause; it has merely required a person to submit peacefully to the inevitable and to pursue his available remedies through the orderly judicial process.

We are not unmindful that under present conditions the available remedies for unlawful arrest--release followed by civil or criminal action against the offending officer--may be deemed inadequate. (See, e.g., People v. Cahan (1955) 44 Cal.2d 434, 448, 282 P.2d 905, 50 A.L.R.2d 513; Note (1966) 27 U.Pitt.L.Rev. 716.) However, this circumstance does not elevate physical resistance to anything other than the least effective and desirable of all possible remedies; as such its rejection, particularly when balanced against the state's interest in discouraging violence, cannot realistically be considered an affirmative 'seizure' or deprivation of liberty.

Thus there is no denial of due process because the deprivation of liberty which an individual suffers upon an unlawful arrest is in no substantial or practical way effectuated, sanctioned or increased by section 834a. There is no constitutional impediment to the state's policy of removing controversies over the legality of an arrest from the streets to the courtroom.

II

Our task, however, is by no means completed with the foregoing construction of section 834a. Defendant was charged not with simply battery, a misdemeanor, but with battery upon a peace officer 'engaged in the performance of his duties,' a felony under Penal Code, section 243. Unlike section 834a, which had no predecessor when enacted in 1957, the language of section 243, speaking in terms of the officer's 'duty,' has been incorporated in section 148 of the Penal Code since 1872. The latter section makes it a misdemeanor to resist, delay or obstruct an officer in the discharge of 'any duty of his office.' Section 148 has long been construed by the courts as applying only to lawful arrests, because 'An officer is under no duty to make an unlawful arrest.' (Jackson v. Superior Court (1950) 98 Cal.App.2d 183, 189, 219 P.2d 879, 883; accord, People v. Craig (1881) 59 Cal. 370; People v. Perry (1947) 79 Cal.App.2d Supp. 906, 908, 180 P.2d 465.) Even if section 834a now makes it a Citizen's duty not to resist an unlawful arrest, this change in the law in no way purports to include an unlawful arrest within the performance of an Officer's duty. ⁴

Moreover, simply as a matter of statutory construction, it is clear that section 834a was meant at most to eliminate the common law defense of resistance to unlawful arrest, and not to make such resistance a new substantive crime. This interpretation is borne out by reference to legislative hearings at which there were discussions on the purpose of section 834a. ⁵ Significantly, both the Uniform Arrest Act, from which the language of section 834a was drawn, and the Model Penal Code take the approach of eliminating the defense but declining to make resistance a separate and additional crime. When section 834a was enacted in 1957, the Legislature amended the penalty provisions but did not change the 'duty' language of section 148, thereby impliedly adopting the prior judicial interpretation of 'duty.' (Summers v. Freeman (1954) 128 Cal.App.2d 828, 832, 276 P.2d 131.) In 1961 the Legislature chose to use the...