People v. Muniz

• Decision Date: 18 February 1970
• Docket Number: Cr. 15814
• Citation: 4 Cal.App.3d 562,84 Cal.Rptr. 501
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Henry Vincent MUNIZ, Defendant and Appellant.

Page 501

84 Cal.Rptr. 501

4 Cal.App.3d 562

The PEOPLE of the State of California, Plaintiff and Respondent, v. Henry Vincent MUNIZ, Defendant and Appellant.

Cr. 15814.

Court of Appeal, Second District, Division 5, California.

Feb. 18, 1970.

Hearing Denied April 15, 1970.

Mel Albaum, Los Angeles, under appointment by the Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., James H. Kline, Deputy Atty. Gen., for respondent.

KAUS, Presiding Justice.

In case number A--230383 defendant was charged in Count I with illegal possession of a machine gun (Pen.Code § 12220)--of which charge he was acquitted--and in Counts II and III with batteries on the persons of two peace officers, Frank C. Farey and Thomas C. Kelley (Pen.Code §§ 241, 243). The information charged and the jury found to be true that each officer was, at the time of the commission of the batteries, engaged in the performance of his duties and that defendant reasonably should have known this. Consequently the provision of section 243 of the Penal Code which then raised a battery on a police officer under such circumstances from a misdemeanor to a felony carrying a maximum punishment of ten years in prison, came into play. Defendant was, however, granted probation subject to a six months term in the county jail. At the same time he was found in violation of probation imposed in another case, number A--218307. Probation in that case was modified, but somewhat extended and conditioned on an additional term of six months in the county jail, to be served concurrently with the county jail term imposed in case number A--230383.

Defendant then filed two notices of appeal, which purported to appeal from various nonappealable rulings, as well as from the two orders granting and modifying probation. These later appeals are properly before us and are adequate to raise all of defendant's contentions. All other purported appeals must be and hereby are dismissed.

The facts may be very briefly stated. On February 25, 1968, Officer Farey stopped a car in which defendant was riding as a passenger for 'loud pipes.' (Veh.Code § 27150.) According to Farey defendant appeared to reach down toward the floorboard of the car when it came to a stop. Farey further testified that while his partner, Officer Beno, was writing a citation he, Farey, noticed in plain view, on the passenger side, five to seven inches of the stock of a weapon on the floor of the car; the rest was covered by a jacket.

The police version of later events is as follows: the driver and defendant were arrested for a violation of section 12031(a) of the Penal Code--carrying a loaded firearm in a vehicle. Defendant attempted to flee. Officer Farey grabbed his arm. Defendant turned and both he and the officer fell to the ground. There was a struggle between them, but no punches were thrown. Defendant was taken to Hollenbeck station. Farey's stated purpose was to 'get advice and authority from our detectives who advise booking.' ¹ This was a routine procedure, during which defendant was placed in a 'detaining cell,' next to the watch commander's office. While defendant was in that cell Sergeant Kelley, who had not been involved in the arrest, and Officer Farey heard loud bangs from defendant's cell. Sergeant Kelley, Officer Farey and Officer Beno entered the cell with a restraining device. Defendant then committed a battery on Officer Farey. The restraining device was applied to defendant's hands, but he managed to free himself. The same three officers reentered the cell and defendant then committed further batteries on Officer Farey and Sergeant Kelley.

The defense version of the events, both those at the scene of the arrest and those at the station, was quite different.

As far as the machine gun is concerned, the driver of the car, one Infante, assumed full responsibility for its presence and claimed that Muniz knew nothing about it. He also testified that the entire gun was wrapped in a jacket and that there was no possible way anyone could have seen it or known that it was there. At the time of defendant's trial Infante had pleaded guilty to a violation of section 12220.

Defendant denied having known anything about the gun or the reason for his arrest until Infante told him on the way to the station. He denied the furtive movement allegedly observed by Farey. He admitted a tussle with Farey at the scene of the arrest, but claimed that Farey was the aggressor. At Hollenbeck station about four or five officers were apparently waiting for defendant and Infante and greeted them with taunts and insults. Before Muniz was put into the detention cell he asked to be permitted to go to the restroom. He was told to relieve himself on the floor of the cell, which he did not do. After being in the cell for some time he knocked on the cell window. When the door was opened he again asked to be permitted to use the rest room. The request was again denied and then there followed further taunts by the officers who, Muniz thought, were trying to provoke him into an assault. ² Muniz did not rise to the bait because he knew that he would be beaten if he raised a hand. At one point Farey hit him on the left side of the face. He was then thrown on the floor and the restraining straps were put around his wrists. He passed out. The door to the cell was locked. He knocked on the door. An officer outside the cell made an obscene gesture with his middle finger. Kelley then entered the cell and engaged in further insulting talk. At one point, without provocation, he hit Muniz in the stomach. Muniz fell down and hit his head against a bench. He was raised up by Kelley. Several officers were beating him. He was then laid down on the bench. Attempting to protect himself he started to kick. These kicks were the only batteries he committed. Eventually he was taken to Parker Center where, supposedly, further mistreatment took place.

On appeal Muniz makes the following claims: 1. his arrest was unlawful; and 2. The illegality of his arrest reduced the batteries to misdemeanors. (People v. Curtis, 70 Cal.2d 347, 350, 74 Cal.Rptr. 713, 450 P.2d 33.)

We cannot say that the arrest was illegal as a matter of law. Although Farey obviously did not have probable cause to believe that the firearm was loaded and therefore announced the wrong section of the Penal Code when making the arrest, his error is immaterial. (People v. Walker, 273 Cal.App.2d ---, --- ^a, 78 Cal.Rptr. 439; People v. Wright, 273 Cal.App.2d ---, --- ^b, 78 Cal.Rptr. 75.) The furtive movement which he observed, coupled with the apparent attempt to hide the weapon in a jacket, even though on his version of the facts the attempt was only partially successful, objectively gave him sufficient reason to suspect some violation of the Dangerous Weapons' Control Law.

But this does not dispose of the problem. The case was tried before People v. Curtis, supra. In that case it was held that section 834a of the Penal Code, enacted in 1957, which makes it illegal to resist an unlawful arrest, was only meant to eliminate the common law defense of resistance to unlawful arrest, but not to make such resistance a new substantive crime. That portion of section 243 of the Penal Code which raises battery, a misdemeanor, to felony status where the victim is a peace officer engaged in the performance of his duties, does not come into play where the officer makes an illegal arrest, simply because '(a)n officer is under no duty to make an unlawful arrest.' (Jackson v. Superior Court, in and for Merced County, 98 Cal.App.2d 183, 189, 219 P.2d 879, 883.) It goes without saying, of course, that neither is it the duty of officers to taunt or beat persons arrested.

With respect to Count II, the charged battery of Farey, we do not know whether the jury's verdict is based on the scuffle at the scene of arrest or the events in the detention cell. As far as the battery at the time of the arrest is concerned, it certainly would only have been a misdemeanor if Farey had no probable cause to make the arrest. That issue was never submitted to the jury. Normally it is not the jury's function to resolve factual conflicts on the issue of probable cause (People v. Gorg, 45 Cal.2d 776, 780--781, 291 P.2d 469); where, however, there is a question of the applicability of the Curtis rule, the legality of the arrest becomes an essential part of the corpus delicti and any factual conflict must be resolved by the jury. (People v. Soto, 276 Cal.App.2d ---, --- ^c , 80 Cal.Rptr. 627.)

There was, of course, a very decided factual conflict in this case. According to the defense testimony the gun was completely hidden from view. The stop for a violation of section 27150 of the Vehicle Code did not authorize a search of the interior of the car. (People v. Blodgett, 46 Cal.2d 114, 116--117, 293 P.2d 57.)

The failure to submit the issue of the legality of the arrest to the jury was demonstrably prejudicial. If the jury had believed that the gun was in plain sight, as Farey testified, it seems unlikely that it would have acquitted defendant on the possession count. We have in mind Farey's testimony that defendant reached down toward the floorboard when the car came to a stop and that the gun was on the passenger side of the car.

The People, however, contend that the illegality of the arrest is immaterial, because defendant's conviction for a felony-battery is adequately supported by his acts in the detention cell when 'the arrest had long since ended.' ³

We need not decide at what point following an illegal arrest the arresting officer again becomes 'engaged in the performance of his duties' or, the extent, if any, to which the Curtis rule applies to batteries on other officers, charged with the custody of the arrestee, who are unaware of the initial illegality. The failure of the trial court to anticipate the holding of Curtis ⁴ permeated the record with error in other...