People v. Kelley

• Decision Date: 30 December 1969
• Docket Number: Cr. 15438
• Citation: 83 Cal.Rptr. 287,3 Cal.App.3d 146
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Carl Edward KELLEY, Defendant and Appellant.

Page 287

83 Cal.Rptr. 287

3 Cal.App.3d 146

The PEOPLE, Plaintiff and Respondent, v. Carl Edward KELLEY, Defendant and Appellant.

Cr. 15438.

Court of Appeal, Second District, Division 4, California.

Dec. 30, 1969.

Michael R. Palley, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Gordon J. Rose, Deputy Atty. Gen., for plaintiff and respondent.

FILES, Presiding Justice.

A jury found defendant guilty of two counts of the offense of battery (Pen.Code, § 242) committed against two peace officers engaged in the performance of their duties. Inasmuch as a battery committed under such circumstances is a felony (Pen.Code, § 243) the court sentenced defendant to state prison. ¹ He is appealing from the judgment.

Los Angeles Police Officers Fiderio and Ferrand, the victims of the offenses, testified to the following effect:

At about 6:30 a.m., January 7, 1968, the officers, in uniform, patrolling in a marked police vehicle, drove to 23d Street and Normandie Avenue in response to a radio call 'man down in a white Pontiac.' They found a white Pontiac standing in the traffic lane of 23d Street next to the center line. The lights were off and the motor was running. Defendant was sitting in the driver's seat, his head resting against the window, apparently asleep. A half-pint whiskey bottle, about four-fifths empty, was lying on the seat. 23d Street is a four lane street. Another vehicle was parked in the lane between the Pontiac and the curb.

Officer Fiderio knocked on the car window and, when defendant opened his eyes, pointed to his badge and announced he was a police officer. Fiderio then asked defendant to step out. Defendant said he would, but appeared to drift back to sleep. The officers then managed to pull defendant out of the vehicle. Defendant was 29 years of age, 6 3 tall and weighed 210 pounds. Fiderio was 5 8 tall and weighed 145 pounds; Ferrand was 5 8 and weighed between 155 and 160.

Defendant stood facing his vehicle while he was patted for weapons. Officer Fiderio informed defendant he was under arrest for driving a motor vehicle under the influence of alcohol, and 'gave him his constitutional rights.' Defendant responded "I ain't going anywhere," and turned around with his right fist cocked alongside the middle of his body. Believing defendant was about to attack him, Fiderio struck defendant with his wooden baton. Ferrand attempted a bar-arm hold under defendant's chin from behind. Defendant kicked at both officers, and then fell over backwards on top of Ferrand, who lost his hold. Defendant arose quickly, and, while Fiderio struck with the baton, defendant kicked him in the groin. As Fiderio doubled over, defendant seized him, threw him to the ground, took his baton and attempted to strike him with it, but Fiderio scrambled away. Then Officer Ferrand struck defendant with a baton and defendant returned the blow. At that point Fiderio drew his revolver and said "Stop or I will shoot." Defendant was then taken into custody without further violence.

Defendant testified that he was not drunk, although he had consumed 'about three-fourths of a half pint' of whiskey between midnight and the time of the arrest. He stopped the car because he was sleepy, but he saw the officers approach him and observed that they were in uniform. He said his car was parked alongside the curb, that it was in a 'driving lane,' that his lights were off and the motor running, and that there was no stop sign or traffice light at the intersection. He denied that he had clenched his fist or said anything like "I ain't going anywhere" or that he had kicked at or struck either officer.

Defendant contends that under People v. Curtis (1969) 70 A.C. 360, 74 Cal.Rptr. 713, 450 P.2d 33, he should be given a retrial because he 'was not allowed to present his defense of the illegality of the arrest.'

In the Curtis case, decided February 13, 1969 (subsequent to the trial of the case at bench), the Supreme Court held that the felony punishment prescribed in section 243 is applicable only when the arrest is lawful. The opinion states (at p. 368, 74 Cal.Rptr. at p. 718, 450 P.2d at p. 38):

'We confirm that a resisting defendant commits a public offense; but if the arrest is ultimately determined factually to be unlawful, the defendant can be validly convicted only of simple assault or battery. Cases holding or implying the contrary are disapproved. (Fn. omitted.)'

In the case at bench there is some conflict in the evidence as to the circumstances leading to the arrest, but even upon the defendant's own version of the facts the officers had cause to make the arrest. By the testimony of both sides, defendant was found in the early morning slumped behind the steering wheel of an automobile which was standing on a public street with its lights out and the motor running. A whiskey bottle, nearly empty, was on the seat beside him. Upon these undisputed facts the officers had probable cause to believe that in their presence defendant was violating Penal Code, section 647, subdivision (f) (being found in a public place under the influence of intoxicating liquor), ² and Vehicle Code, section 23122 (possessing in a motor vehicle upon a highway a bottle containing an alcoholic beverage which has been opened). Furthermore, the circumstances indicated that prompt and efficient police action was necessary for the defendant's safety, as well as that of the public. His apparent condition threatened even greater danger if he were allowed to move his vehicle.

There is no validity in defendant's argument that the arrest violated that portion of Penal Code, section 841 which requires a person making an arrest to state 'the authority to make it.' By the terms of the statute, that requirement does not apply to an arrest made during the commission of the offense. (See People v Beard (1956) 46 Cal.2d 278, 281, 294 P.2d 29.)

Furthermore, the arrest is not invalidated by the fact that the officer told defendant he was being arrested for drunk driving. It is unnecessary to decide whether the circumstances justified an arrest for that offense, ³ since there were grounds to arrest for two different, though related, misdemeanors. The officer's announcement of the wrong offense did not make the arrest unlawful. (See People v. Walker (1969) 273 A.C.A. 801, 805--806, 78 Cal.Rptr. 439.)

The trial court gave no instruction which asked the jury to make any determination with respect to the lawfulness of the arrest. Assuming that it is a part of the corpus delicti to prove that the officer is engaged in the performance of his duty at the time of the alleged battery (see People v. Soto (1969) 276 A.C. 107, 112, 80 Cal.Rptr. 627), the failure to instruct on this issue was harmless. Had the trial court given an instruction on that subject, it would have been required to tell the jury that either under the evidence introduced by the People, or under the defendant's version of the facts, the arrest of defendant was within the scope of the officers' duties. (See People v. Cannedy (1969) 270 A.C.A. 738, 745, 76 Cal.Rptr. 24, holding that failure to instruct on the issue was not error where the evidence compelled a finding that the officers were engaged in the performance of their duty.)

The trial court did instruct the jury on the subject of self-defense. At defendant's request, the court gave the conventional instruction that a person who is attacked may defend himself, and may pursue his assailant until he has secured himself from danger if that course appears to be reasonably necessary (CALJIC No. 622). On its own motion the court also gave this:

'A police officer may not use more force than is reasonably necessary to make an arrest under all the circumstances of the case, and if a police officer does use more force than...