People v. Plesniarski

• Decision Date: 17 December 1971
• Docket Number: Cr. 6154
• Citation: 99 Cal.Rptr. 196,22 Cal.App.3d 108
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. AI PLESNIARSKI and Leon M. Williamson, Defendants and Respondents.

Page 196

99 Cal.Rptr. 196

22 Cal.App.3d 108

The PEOPLE of the State of California, Plaintiff and Appellant, v. AI PLESNIARSKI and Leon M. Williamson, Defendants and Respondents.

Cr. 6154.

Court of Appeal, Third District, California.

Dec. 17, 1971.

Evelle J. Younger, Atty. Gen., by Edward A. Hinz, Jr. and Eddie T. Keller, Deputy Attys. Gen., Sacramento, for plaintiff and appellant.

Allen P. Fields, Sacramento, for defendants and respondents.

BRAY, Associate Justice, Assigned.

The People appeal from a judgment of the Sacramento County Superior Court granting defendants' motion to dismiss the indictment.

QUESTION PRESENTED

The court erred in granting the motion as defendants acted 'under color of authority.'

RECORD

The Sacramento County Grand Jury indicted defendants in count One of the indictment

with violation of section 149 of the Penal Code (assault by an officer under color of authority) and in count Two with violation of section 245 of the Penal Code (assault with a deadly weapon). Defendants moved under section 995 for dismissal of the indictment. The district attorney stipulated that count Two be stricken since it was mistakenly included in the indictment. The court, after a hearing, dismissed the indictment. The People appeal from the dismissal of count One.

FACTS

Defendant Plesniarski had been an officer of the Sacramento Police Department since 1966, defendant Williamson since 1968. On December 3, 1970, Plesniarski was on duty from 7 p.m. to 3 a.m. the following day, that particular time being Williamson's day off. About midnight of December 4, four persons, including Monon Cherry, were arrested for 'strong-arm' robbery by Sacramento Police Officers, one of whom was Plesniarski. Officer Emmons took Cherry to the jail on the third floor of the Hall of Justice, booking him for a violation of section 211 of the Penal Code (robbery). At about 12:25 a.m., Emmons placed Cherry in cell No. 1, otherwise known as the 'tank,' on the third floor. Emmons indicated that the victim of the robbery was Mary Plesniarski, wife of Officer Plesniarski.

About an hour later Emmons saw defendants Plesniarski and Williamson together on the third floor, Williamson in plain clothes and Plesniarski in uniform. Emmons saw Plesniarski remove a gun from his holster and place it in the locker where officers' weapons are stored. He also removed his flashlight and placed it on the counter. Plesniarski then asked Williamson 'if he wanted to go in too, or something to that effect.' The reply was 'yeah.' Williamson removed his gun and placed it in a gun locker. Plesniarski got a key which was hanging on a hook on a screen surrounding the booking office and opened the door of the cell where Cherry had been placed.

One or two minutes later the two officers came out of the cell with Cherry. Plesniarski was in front of Cherry holding his left arm; Williamson was following. Cherry had his hands over his face and Emmons saw a red substance, which appeared to be blood, coming from Cherry's head. The two officers then led Cherry to a sink where they directed him to wash his face. The two officers then took Cherry to the booking counter and stood him up against the screen, a normal booking procedure, 'as if to book him.' Emmons then told them that Cherry had already been booked. Emmons observed some slight blood stains across Cherry's lip. When booking Cherry, Emmons observed no bleeding or any other signs of injury or damage to Cherry's face.

Any person, other than a police officer, who wished to visit the third-floor jail had to be cleared at the information center in the basement of the police department and would be given passes therefor, indicating the specific purpose of the visit and the person to be seen.

Cherry testified that Plesniarski was the officer who had taken him from the bar and placed him in the patrol car, saying, 'that he didn't want to lose his temper there, that he was going to whip me when he got me to town.' Cherry said that about 45 minutes after he was placed in the tank, Plesniarski and another 'fellow' awakened him from a semi-slumber. Plesniarski struck him with his left fist in the left side of the face. The other man then held Cherry from behind and Plesniarski struck him in the face three or four times more. The other man let him drop to the floor and kicked him in the left side of the head. Cherry claimed that he said nothing to either man, nor did he direct any blows toward them; that he sustained injuries in this encounter and had none before he was booked in the jail.

COLOR OF AUTHORITY

The court, relying on People v. Lantz (1953) 120 Cal.App.2d 787, 262 P.2d 19, held that the officers were not acting under color of their authority when they assaulted the prisoner under custody in the city jail.

Section 149 of the Penal Code states, in relevant part: 'Every public officer who, Under color of authority, without lawful necessity, assaults or beats any person, is punishable . . ..' (Emphasis added.)

In People v. Lantz, supra, at page 792, 262 P.2d at page 22, the court held that a jailer who repeatedly entered the victim's cell and beat him was not entitled to an instruction under section 149 as a lesser included offense in the charge of assault by means of force likely to produce great bodily injury. The court stated, in a more or less cursory manner and without apparent consideration of the subject, 'Defendant was not acting nor purporting to act under color of authority. He was not performing or purporting to perform any duty as a police officer.' Lantz is distinguishable from the case at bench in that defendants here purported to be removing the victim from the cell to book him, and, moreover, could not have had access to the victim's cell except for their authority as police officers.

To hold, as Lantz did, that a police officer who unjustifiably assaults a prisoner in a cell to which only the fact that he is a police officer entitled him to get the key and enter the cell is not acting under 'color of authority' is contrary to the better rule of the decisions.

The best definition of the subject and one of undoubted common sense is that in United States v. Classic (1941) 313 U.S. 299, 325, 61 S.Ct. 1031, 1042, 85 L.Ed. 1368, 1383, footnote 9, which interpreted section 242 of Title 18 of the United States Code Annotated, which made criminally punishable, "Whoever, Under color of any law . . . willfully subjects . . . any inhabitant . . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States . . .." (Emphasis added.) ('Color of any law' obviously is synonymous with 'color of authority.') In Classic the United States Supreme Court upheld a conviction under section 52 of Title 18 of the United States Code Annotated (predecessor of § 242) of state election officials who altered and falsely counted ballots in a primary election. The court stated: 'Misuse of power, possessed by virtue of state law And made possible only because the wrongdoer is clothed with the authority of state law, is action taken 'under color of' state law.' (313 U.S. p. 326, 61 S.Ct. p. 1043, 85 L.Ed. p. 1383.) (Emphasis added.)

Screws v. United States (1945) 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495, after Classic, is a case where state police officers arrested a man on a theft charge and beat him to death after they had taken him to the courthouse square. There was evidence that one of the officers held a personal grudge toward the victim and had threatened to 'get him.' In upholding a conviction of the officers, the majority of the court stated 325 U.S. at p. 111, 65 S.Ct. at p. 1040, 89 L.Ed. at p. 1508: '. . . It is clear that under 'color' of law means under 'pretense' of law. . . . Acts of officers who undertake to perform their official duties are included Whether they hew to the line of their authority or overstep it. If, as suggested, the statute was designed to embrace only action which the State in fact authorized, the words 'under color of any law' were hardly apt words to express the idea.' (Emphasis added.) While the circumstances in Screws that the officers were making an arrest are stronger than the circumstances in the case at bench, Screws is important in that it approved the language in Classic which covers the situation in the instant case.

A significant case is Catlette v. United States (4th Cir. 1943) 132 F.2d 902. There the sheriff took into custody members of Jehovah's Witnesses who were distributing literature. Calling members of the American Legion to his office, the...