People v. Soto

• Decision Date: 12 September 1969
• Docket Number: Cr. 651
• Citation: 276 Cal.App.2d 81,80 Cal.Rptr. 627
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Ruben Guadalupe SOTO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 627

80 Cal.Rptr. 627

276 Cal.App.2d 81

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ruben Guadalupe SOTO, Defendant and Appellant.

Cr. 651.

Court of Appeal, Fifth District, California.

Sept. 12, 1969.

[276 Cal.App.2d 82] James Smith and Feierbach, Dowell & Thurlow, by George L. Thurlow, Visalia, for appellant.

Thomas C. Lynch, Atty. Gen., Roger E. Venturi and Thomas W. Kelly, Deputy Attys. Gen., Sacramento, for respondent.

OPINION

GARGANO, Associate Justice.

Appellant, Ruben G. Soto, was charged with and convicted of a felonious battery against a peace officer in violation of section 243 of the Penal Code. This section reads in pertinent part as follows:

'A battery is punishable by fine of not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or by both. When it is committed against the person of a peace officer * * * and the person committing the offense knows or reasonably should know that such victim is a peace officer * * * engaged in the performance of his duties, and such peace officer * * * is engaged in the performance of his duties, the offense shall be punished by imprisonment in the county jail not exceeding one year or by imprisonment in the state prison for not less than one nor more than 10 years. * * *'

The battery was allegedly committed on Officer Buddy Hale of the Visalia Police Department on the evening of June 6, 1968, at a wedding reception and dance which was being held at The American Association of University Women's Club in Visalia. However, appellant's version as to what occurred differs sharply from respondent's version. Thus, appellant's main contention for reversal of the judgment entered on the jury's verdict is that the jury was inadequately instructed on the law of the case and could not properly evaluate the conflict in the evidence.

On the one hand, according to respondent's evidence, the following transpired: Private security officers Harlan Prine and Robert Morgan stopped several fights which erupted during the course of the dance and ordered the participants outside. However, the fights continued on the outside so Prine called the Visalia Police Department for assistance. Officers Buddy Hale and James Harbottle responded to the call. The officers were on duty and were attired in their regular police uniforms. Prine told Officer Hale that a Mexican youth wearing a white 'T' shirt and a pair of Frisco jeans was causing trouble and had returned to the dance just before the officers arrived. He said that the youth should be arrested. Upon entering the dance hall Officer Hale spotted Filomeno Carrasco, a Mexican youth who fitted the description given by Prine; the youth had his fists doubled up and was arguing loudly with another person. The officer went up to Carrasco, placed his hand on his shoulder and asked him to step outside as he wanted to talk to him. In answer, Carrasco knocked Hale's arm away and told him to 'go to Hell.' The officer again placed his hand on Carrasco's shoulder, but before he could inform the trouble maker that he was under arrest, Carrasco struck Hale several times with his fists. Hale then grabbed Carrasco by the shoulder and neck, and with Officer Harbottle's assistance started to escort him toward the front door. As the officers were forceably removing Carrasco from the hall, appellant grabbed Hale by the right arm and told the officer, 'You are not going to take him out of here.' Hale knew appellant and replied, 'Soto, don't interfere.' However, as the officers again started toward the door appellant ripped Hale's arm from Carrasco and struck the officer in the chest with his right arm, knocking him off balance. This maneuver enabled Carrasco to break away and head toward the door. The two officers attempted to catch Carrasco, but a group of people interfered, pushing and forcing Hale to the floor. The officer lost his night stick in the process. Afterwards, Hale confronted appellant outside the hall and asked him if he had the night stick. Appellant replied that if he had it he would use it to kill Hale. At the time appellant was in the company of approximately 50 Mexican males. Sometime later Officer John Sanders of the Visalia Police Department arrived at the scene with reinforcements. Hale told Sanders that he had been attacked by appellant. Sanders then ordered the crowd to disperse and told appellant he was under arrest. However, appellant fled.

On the other hand, appellant's version of these events varies in several substantial respects. Appellant testified that he was standing near Filomeno Carrasco when Officer Hale entered the dance hall. He indicated that although Carrasco was arguing, he was not causing any disturbance but that the officer nevertheless walked up and began to manhandle him without provocation or prior warning. Appellant informed Hale that what he was doing was against the law, but the officer told appellant to 'shut up' and that he was going to arrest appellant also. Appellant testified that Officer Hale then advanced toward him in a threatening manner, so he placed his hand on the officer's chest out of fear that Hale would strike him on the head with his night stick. Appellant claimed that he had a steel plate in his skull and feared that a blow on the head might kill him. Appellant admitted that the officers were attacked by at least 15 persons but denied that he had any part in the attack. He explained that after the officer dropped his night stick he (appellant) picked it up, ran outside with it and threw it away in order to prevent Hale from using it. When he returned to the hall Hale informed him that he was under arrest. Appellant said he accompanied Hale outside of the hall, and when he asked why he was arrested the officer told him to 'get the Hell out of here.' ¹

It is of course clear that to constitute the felonious conduct proscribed by Penal Code section 243 the assault must be on a peace officer who is Actually engaged in the performance of his duties. However, a peace officer is under no duty to make an unlawful arrest. Thus, an assault on a peace officer by a person who is resisting an unlawful arrest is not a felony under the section. But, even so, the person is guilty of a misdemeanor. In short, Penal Code section 834a prohibits forceable resistance to unlawful, as well as lawful, arrests. And, although a person who commits an assault on a peace officer while resisting an unlawful arrest is not guilty of a felony, he is nevertheless guilty of a misdemeanor (People v. Curtis, 70 A.C. 360, 74 Cal.Rptr. 713, 450 P.2d 33). Moreover, it is a public offense for a peace officer to use unreasonable and excessive force in effecting an arrest (Boyes v. Evans, 14 Cal.App.2d 472, 58 P.2d 922). Therefore, a person who uses reasonable force to protect himself or others against the use of unreasonable excessive force in making an arrest is not guilty of any crime (Pen.Code, §§ 692, 694). As the California Supreme Court succinctly summarized in Curtis:

'* * * construing sections 834a and 243, it is now the law of California that a person may not use force to resist any arrest, lawful or unlawful, except that he may use reasonable force to defend life and limb against excessive force; but if it should be determined that resistance was not thus justified, the felony provisions of section 243 apply when the arrest is lawful, and if the arrest is determined to be unlawful the defendant may be convicted only of a misdemeanor.' (70 A.C. at p. 370, 74 Cal.Rptr. at p. 719, 450 P.2d at p. 39.)

Applying these principles to the case at bench, we are impelled to agree with appellant's contention that the trial judge did not adequately instruct the jury on the law of the case and that his failure to do so was prejudicial to appellant. We also conclude that we must reverse the judgment even though the essential instructions that the judge failed to give were not requested by appellant's trial counsel. It is settled that in criminal cases the court must, sua sponte, give instructions on the basic principles of law which are essential for a proper disposition of the case (People v. Wilson, 66 Cal.2d 749, 59 Cal.Rptr. 156, 427 P.2d 820; People v. Jackson, 59 Cal.2d 375, 29 Cal.Rptr. 505, 379 P.2d 937).

Our reasons for concluding that the court's instructions were inadequate and that reversal is mandatory are these: first, the court correctly told the jury that to find appellant guilty of a felonious assault under section 243, they had to find that Officer Hale was actually engaged in the performance of his duties...