People v. Gaines

• Decision Date: 09 December 1966
• Docket Number: Cr. 274
• Citation: 55 Cal.Rptr. 283,247 Cal.App.2d 141
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Donald GAINES, Defendant and Appellant.

Page 283

55 Cal.Rptr. 283

247 Cal.App.2d 141

The PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Donald GAINES, Defendant and Appellant.

Cr. 274.

Court of Appeal, Fifth District, California.

Dec. 9, 1966.

[247 Cal.App.2d 143] Ernest H. Tuttle, Fresno, under appointment by the Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., Raymond M. Momboisse and Stephen Cooper, Deputy Attys. Gen., Sacramento, for respondent.

OPINION

GARGANO, Justice.

Defendant appeals from a conviction of assault upon a police officer with a deadly weapon in violation of Section 245(b) of the Penal Code, and battery in violation of Section 242, a lesser and included offense within Section 245(a) of the Penal Code. He was also charged with one prior conviction of felony, which he addmitted.

On December 7, 1965, the defendant picked up his wife Mabel near the bus station in Ceres. Defendant had been drinking with a friend before he met his wife, and afterward both he and his wife visited a cocktail lounge in Stockton. From there they went to the home of Mabel's parents (the Bragers) where they began to argue. Defendant wanted to leave with his wife but she did not want to go. Finally, he [247 Cal.App.2d 144] forced her to leave, but not before she asked her sister to call the police. At the car defendant opened the door and pushed Mabel in from the driver's side. Mabel refused to pull her feet into the car, whereupon defendant struck her in the face with his fist, knocking her down on the front seat. As Mabel was lying on the front seat defendant again struck her in the face with his fist.

Officer McCown of the Ceres Police Department, dressed in full uniform, arrived at the Brager home at 5:10 p.m. in response to the call which had apparently been made by Mabel's sister. As he pulled into the driveway he saw defendant leaning into the car swinging his arms; he also saw a woman's legs extending out of the car and he heard her screams. He quickly alighted from his car and rushed toward the defendant. He was met by several members of the Brager family who ran toward him crying, 'He's hitting her. He can't do that.' The officer reached defendant just after Mabel had been struck the second time. He grabbed defendant by the arm and placed him in the squad car.

At this point the testimony is conflicting. Defendant testified (corroborated by Mabel and her brother) that shortly after McCown opened the door of the squad car he struck defendant twice with his billie club, and defendant then 'went into hysterics' and remembered nothing thereafter until he was booked at the police station. Officer McCown, on the other hand, testified that after peacefully putting defendant in the squad car he returned to aid Mabel and to complete his investigation; that while talking with her he heard a door click and turned in time to see defendant get out of the patrol car; that he walked toward defendant, who made a fist in a threatening manner; that he then pushed defendant

against the car and defendant grabbed his patrolman's billie club and struck him with it; that a struggle ensued and he was again struck with the billie club

Lieutenant Trantham, also of the Ceres Police Department, arrived at the scene during the struggle. Trantham joined in the struggle, and when the two officers could not subdue defendant, he pointed a cocked revolver in defendant's face. Defendant immediately dropped the club, jumped up with his hands raised and said, 'Man, don't shoot. I dropped the club.' Defendant was then told that he was under arrest and he was advised of his rights to remain silent and to have an attorney, and that anything he said could be used against him.

[247 Cal.App.2d 145]

I

Defendant first contends that when Officer McCown placed him in the patrol car he made an unlawful arrest and defendant was entitled to use force to resist. He urges that it follows that defendant's conviction under Penal Code Section 245(b) cannot be sustained and must be reversed.

Defendant's contention is wholly without merit. There is ample basis for this court to sustain the conviction, bearing in mind that we must assume in favor of the existence of every fact that the jury could have reasonably deduced from the evidence. (People v. Newland, 15 Cal.2d 678, 104 P.2d 778; People v. Robbins, 225 Cal.App.2d 177, 37 Cal.Rptr. 244.) ¹ As testified by Officer McCown, the defendant was not under arrest at the time that he was first restrained from assaulting his wife and placed in the police car. He was merely being detained until the officer could complete his investigation, and under the circumstances the pre-arrest detention was not only proper but warranted. (People v. Amos, 190 Cal.App.2d 384, 11 Cal.Rptr. 834; People v. Harris, 212 Cal.App.2d 845, 28 Cal.Rptr. 458.) The officer thereafter was performing his duty when he placed the defendant in the police car and returned to aid Mabel and to take statements. Moreover, the defendant knew he was being detained by a police officer, and he knew, or reasonably should have known, that the officer was performing his duty when the assault was committed. Thus, according to these facts, all prerequisites necessary to sustain a conviction under Section 245(b) have been satisfied. That is, under Section 245(b), the crime is committed when (1) an assault with a deadly weapon or instrument or any means likely to produce great bodily harm (2) is committed upon the person of a peace officer (3) with knowledge or under such circumstances that a reasonable person would know that the victim is a police officer engaged in the performance of his duties (4) when such peace officer is in fact engaged in the performance of his duties.

Even if we assume, for the sake of argument, as defendant asserts, that the initial restraint amounted to an arrest, it still would have been a legal arrest. ² A disturbance [247 Cal.App.2d 146] had been reported to the police, and Officer McCown had answered the call. He testified that as he drove into the driveway of the Brager residence he was met by several members of the family who called to him, 'He's hitting her.' He then looked at the car parked in the driveway and saw defendant standing by the open door on the left side, leaning inside the car. He was swinging his arms in a striking motion directed toward the front seat of the car. He also saw a woman's legs protruding from the open car door and heard a woman scream. To hold

that under these facts there was not reasonable cause ³ for the officer to believe that the defendant was committing a public offense in his presence, or even that there was not reasonable cause for the officer to believe that the defendant was committing a felony, would be an affront to the law and an insult to common sense

However, even if reasonable cause for arrest were lacking, defendant's assault on the officer would not have been justified. Penal Code Section 834a establishes a duty to submit to arrest by one whom the arrestee should know to be a peace officer regardless of whether the arrest is lawful or not. (In re Bacon, 240 A.C.A. 34, 49 Cal.Rptr. 322.)

II

Defendant next contends that he was not informed that he was under arrest or advised of his constitutional rights, and that this omission requires a reversal of his convictions. His arguments, however, are confusing and difficult to follow.

As we have stated, defendant's initial restraint was a proper pre-arrest detention and Officer McCown was not at that time required to advise defendant of his constitutional rights. Moreover, even if we should agree that the restraint amounts to an arrest, it was not necessary, under Penal Code Section 841, for the officer to immediately inform the defendant that he was under arrest. The section excepts, from the rule requiring an officer to state the ground of arrest, the [247 Cal.App.2d 147] instance 'when the person making the arrest has reasonable cause to believe that the person to be arrested is actually engaged in the commission of or an attempt to commit an offense.'

After the assault on Officer McCown had been committed and after the defendant was subdued by the officers, he was immediately informed that he was under arrest and advised of his constitutional rights. However, even if he were not so advised, appellant's position is not supported by the cases he cites, i.e., Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; and Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183. There is no indication from the record that incriminating statements were taken or other incriminating evidence was abduced as a result of this failure. At best, the defendant is complaining of an unlawful arrest which occurred after the crime had been committed, and it is settled that a person does not gain immunity from punishment for an offense for which he was unlawfully arrested. (People v. Valenti, 49 Cal.2d 199, 316 P.2d 633.) ⁴ Moreover, defendant raised no objection at the trial to the legality of the arrest, and he is therefore precluded from raising the issue for the first time on appeal. (People v. Rivera, 202 Cal.App.2d 839, 21 Cal.Rptr. 182.)

III

In his third contention that the officer's unprovoked assault upon him was a denial of due process requiring reversal, defendant is simply quarreling with a finding of the jury. Defendant, his wife and her brother testified that Officer McCown returned to the patrol car after having placed defendant therein and struck him with his billie club to keep him quiet. Officer McCown testified on direct and cross-examination...