People v. Curtis
| Decision Date | 18 July 1968 |
| Docket Number | Cr. 4382 |
| Citation | 70 Cal.Rptr. 271 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Albert Allen CURTIS, Defendant and Appellant. |
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.
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.)
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. 1 The evidence surrounding the battery conviction may be summarized as follows:
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.
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 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. The officer's trial testimony as to the direction of defendant's travel in relation to the scene of the burglary, the striking of the first blow and the presence of a stick in defendant's hand was inconsistent in part with his police report and his testimony at the preliminary examination. In each instance, however, when he was impeached on cross-examination or his memory was refreshed from the prior record, the officer admitted the error or failure of recollection and testified unequivocally as set out in the above summary of the facts. The inconsistencies in the testimony of the officer, like the conflicts between his testimony and that of the defendant, were for the jury to resolve, and we are without power to reweigh the evidence or to substitute different deductions for those made by the trier of fact. (People v. Wright, 216 Cal.App.2d 866, 870, 31 Cal.Rptr. 432.)
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.
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...
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