People v. Vargas

• Decision Date: 28 March 1960
• Docket Number: Cr. A
• Citation: 179 Cal.App.2d Supp. 863,3 Cal.Rptr. 925
• Court: California Superior Court
• Parties: 179 Cal.App.2d Supp. 863 PEOPLE of State of Callfornia, Plaintiff and Respondent, v. Mrs. Aurora VARGAS, Defendant and Appellant. 4287. Appellate Department, Superior Court, Los Angeles County, California

Page 925

3 Cal.Rptr. 925

179 Cal.App.2d Supp. 863

PEOPLE of State of Callfornia, Plaintiff and Respondent, v. Mrs. Aurora VARGAS, Defendant and Appellant.

Cr. A. 4287.

Appellate Department, Superior Court, Los Angeles County, California.

March 28, 1960.

Phill Silver, Hollywood, for appellant.

Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty., William E. Doran, Deputy City Atty., Los Angeles, for respondent.

SWAIN, Presiding Judge.

The defendant was convicted of three counts of battery, the victims of which were three deputy sheriffs, a different victim being named in each count. She was also convicted of disturbing the peace. The unpleasantness arose when the officers served a writ of possession in a civil action upon our defendant. She resisted the enforcement of the writ by kicking, striking or biting each of the officers. In a fourth count she was convicted of disturbing the peace by the same misconduct which constituted the battery.

Penal Code, § 654 provides: 'An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; * * *.' The judgment on count IV (disturbing the peace) must be reversed by reason of this section, battery being a graver offense, on the basis of possible punishment, than disturbing the peace.

We have considered and found without merit all of the grounds urged by appellant for reversing the judgment on the battery counts. This court, by express provision of Judicial Council Appellate Department Rule 6, is not required to write an opinion in any case, but we will discuss one point raised by the appellant, to-wit, the claim that the defendant was entitled to resist the service of the writ because it was based on a void judgment. We do not know whether the judgment was void but we do know that the writ, a copy of which is in evidence, is valid on its face. This was sufficient to protect the officers who served it. In Vallindras v. Massachusetts etc. Ins. Co., 1954, 42 Cal.2d 149, at page 154, 265 P.2d 907, at page 910, the court said: 'The validity of a judgment of commitment, where the question is a close one, as is true here, is ultimately for the courts, not the sheriff, to decide. A sheriff is a ministerial or executive, not a judicial, officer [citing cases]. It is his duty to execute the orders of the court unless they are patently irregular and void. In determining whether process and orders are 'regular on their face' so far as the liability of such an officer is concerned, the following statement from Aetna Ins. Co. v. Blumenthal, 1943, 129 Conn. 545, 553, 29 A.2d 751, 754, is pertinent; 'When we speak of process 'valid on its face,' in considering whether it is sufficient to protect an officer, we do not mean that its validity is to be determined upon the basis of scrutiny by a trained legal mind; nor is it to be judged in the light of facts outside its provisions which the officer may know. [Citations.] Unless there is a clear absence of jurisdiction on the part of the court or magistrate issuing the process, it is...