People v. Perkins

• Decision Date: 27 July 1970
• Docket Number: Cr. 752
• Citation: 9 Cal.App.3d 1048,88 Cal.Rptr. 720
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Lenis Everett PERKINS, Defendant and Appellant.

Page 720

88 Cal.Rptr. 720

9 Cal.App.3d 1048

The PEOPLE of the State of California, Plaintiff and Respondent, v. Lenis Everett PERKINS, Defendant and Appellant.

Cr. 752.

Court of Appeal, Fifth District, California.

July 27, 1970.

[9 Cal.App.3d 1049] Moody, Nelson & Johnson, and Vernon Johnson, Turlock, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., by Nelson P. Kempsy, and Joel S. Primes, Deputy Attys. Gen., Sacaramento, for plaintiff and respondent.

OPINION

GARGANO, Associate Justice.

Defendant was convicted of two counts, I and III, of battery on a police officer in violation of sections 242 and 243 of the Penal Code. He was also convicted of a battery committed on his wife, count IV. Counts I and III were merged pursuant to section 654 of the Penal Code, and with regard to these counts defendant was sentenced to state prison for the term prescribed by law. As to count IV, defendant was sentenced to the county jail for a period of six months, the term to run concurrently with the sentence imposed on counts I and III. Defendant has appealed.

On September 1, 1968, appellant and his wife, Teresa, while attending a drivein movie with another couple, became involved in a family argument. After they returned to their apartment, the argument resumed and defendant struck his wife several times. Teresa went into the kitchen, pulled a butcher knife from a drawer and threw it at appellant. Appellant called the police.

About five minutes later, Deputies Benson, Crawshaw and Paugh of the Stanislaus County Sheriff's Office arrived at the apartment and found appellant outside. Benson asked appellant not to leave and proceeded to talk with appellant's wife, who was also outside. The officer noticed that Mrs. Perkins' eye was black and blue and cut and puffed out; he asked her to sign a citizen's arrest document, which she did. Then, appellant's wife and the three deputies followed appellant, who had gone into the house, and informed him that he was under arrest and asked him to come peaceably.

At this point the respondent's and appellant's versions as to what occurred differ sharply. According to respondent, after appellant was informed of the citizen's arrest, he told the officers that they could not arrest him without a warrant and that if they tried to take him there would be trouble; he said the town would burn down before morning 'just like Watts.' Then, he retreated into the bedroom and challenged the officers to 'come and get me.' Deputy Paugh got on top of the bed and tried to get in between the night stand and appellant. Appellant swung at Deputy Paugh but missed him. Deputy Benson took a step toward appellant but was struck on the chest by the side of defendant's hand and knocked against the wall. Benson then hit defendant on the head with a pocket sap. Appellant lunged at Deputy Crawshaw, and the two men rolled into the living room. After a brief struggle, appellant was subdued and placed under arrest.

On the other hand, appellant testified that he was surprised by the announcement that he was under arrest. He said he told the officers, 'I'm not going to go no place unless I see a complaint or warrant,' and retreated to the bedroom. In the bedroom one of the officers said, 'To hell with it, I'm tired of talking * * * let's take him' and started across the bed. Deputy Benson hit appellant first, and as appellant tried to block another blow he fell on Deputy Crawshaw, and the two men plunged into the living room. They began to wrestle for Crawshaw's night stick; Crawshaw was trying to raise the night stick, and defendant was trying to hold it against the floor to keep the deputy from raising it so that he could hit defendant. Appellant was hit about five times across the head, and six or seven times on the back and was subdued.

At the outset, we agree with appellant's contention that as to counts I and III the court erred in refusing to instruct the jury on the lesser offense of wilfully resisting, delaying or obstructing 'any public officer, in the discharge or attempt to discharge any duty of his office. * * *' (Pen.Code § 148.) Appellant could not have committed a battery on any of the officers if he had not been resisting their attempt to arrest him. In fact, appellant's own testimony proves that he refused to submit to the arrest and that the fight started as the result of his resistance. Thus, while appellant's testimony that he did not strike the officers, if believed by the jury, would have exonerated him of the batteries, it would also have made it possible for the jury to convict him of the lesser offense. It is settled that where there is evidence which would absolve the defendant of guilt of the greater offense of which he stands charged but would support a finding of guilt of the lesser offense, an instruction on the lesser offense is mandatory (People v. Morrison, 228 Cal.App.2d 707, 39 Cal.Rptr. 874).

Respondent does not deny that the offense proscribed by Penal Code section 148, a misdemeanor, is a lesser and necessarily included offense of the batteries charged in counts I and III. Appellant was specifically charged with using wilful and unlawful force upon the person of a police officer at a time when he knew or reasonably should have known that the victim 'was an officer of the Sheriff's Office engaged in the performance of his duties.' It is difficult to visualize how appellant could have wilfully committed a battery on a police officer under these circumstances without also being guilty of resisting, delaying or obstructing a public officer in the discharge of his duties of office. (People v. Marshall, 48 Cal.2d 394, 309...