People v. Wilkins, No. C011793

CourtCalifornia Court of Appeals
Writing for the CourtPUGLIA; SPARKS; RAYE
Citation17 Cal.Rptr.2d 743,14 Cal.App.4th 761
PartiesThe PEOPLE, Plaintiff and Respondent, v. Theodore Albert WILKINS, Defendant and Appellant.
Decision Date25 March 1993
Docket NumberNo. C011793

Page 743

17 Cal.Rptr.2d 743
14 Cal.App.4th 761
The PEOPLE, Plaintiff and Respondent,
v.
Theodore Albert WILKINS, Defendant and Appellant.
No. C011793.
Court of Appeal, Third District, California.
March 25, 1993.
Certified for Partial Publication
Rehearing Denied April 20, 1993.
Review Denied July 22, 1993.

Page 745

[14 Cal.App.4th 767] Janet J. Gray, Pacific Grove, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Sr. Asst. Atty. Gen., Shirley A. Nelson and Douglas C. Hamilton, Deputy Attys. Gen., for plaintiff and respondent.

PUGLIA, Presiding Justice.

In this prosecution for obstructing and resisting a peace officer in the performance of his duty, we shall hold that the existence or not of exigent circumstances, upon which the People relied to justify the entry of peace officers into defendant's home to arrest him without a warrant, is an issue for the jury invoking the trial court's duty sua sponte to instruct thereon.

Defendant was convicted of willful infliction of corporal injury on a spouse (Pen.Code, § 273.5), taking a peace officer's weapon (baton) while obstructing him in the performance of his duties (Pen.Code,

Page 746

§ 148, subd. (b)), and forcibly resisting a peace officer in the performance of his duties (Pen.Code, § 69). (Further statutory references to sections of an undesignated code are to the Penal Code.) On appeal defendant contends the court erred in (1) denying his motion to suppress evidence (§ 1538.5) and (2) failing to instruct sua sponte on the issue of exigent circumstances as it relates to the lawfulness of defendant's arrest and ultimately, to the lawful performance of the officers' duty. We shall deal with these issues in the published part of this opinion. 1 Although we shall conclude the trial court defaulted in its duty sua sponte to instruct on exigent circumstances, we shall further conclude the error was harmless beyond a reasonable doubt. Finding no other reversible error, we shall affirm.

Officer Bruce Donaldson of the Marysville Police Department arrived at 131 Johnson Avenue to investigate a report of a domestic dispute. The victim, Pamela Wilkins, met Donaldson outside the residence. She was "very upset" and "crying uncontrollably." Her face and nose were red. Police Sergeant Kenneth Kauk arrived shortly thereafter. The victim stated she had been in an "altercation" with her husband (defendant) and he "had hit her a few times in the face." She told the officers her nose and neck were sore and requested them "to go inside the residence to arrest [defendant]."

[14 Cal.App.4th 768] The officers instructed the victim to remain outside. They intended to enter the residence and arrest defendant for corporal injury to a spouse. The officers, who were in uniform, knocked and defendant opened the door approximately one-quarter to one-half way. He appeared calm. Donaldson informed defendant they needed to come in and talk with him. Defendant refused to allow more than one officer to enter. Donaldson said both officers needed to come in. Defendant attempted to close the door, but Donaldson blocked it with his foot and hand, forced the door open, and reached for defendant's wrist. Defendant backed away and began flailing his arms and yelling at the officers to get out.

Defendant retreated, Donaldson followed and Kauk got behind defendant and grabbed him by the arms in a "semi-bear hug." Kauk tried to calm defendant but defendant continued to yell at the officers and "lunged forward," grabbing Donaldson's baton. Holding the baton like a baseball bat, defendant "charged at" Donaldson and threatened to kill him. Defendant and the two officers crashed into a wall of the room, bounced off and fell against another wall. The victim, who by this time had entered the residence, shouted at defendant to stop and put down the baton. Defendant eventually lost control of the baton and it fell to the floor where the victim retrieved it.

During the fray, defendant "went for" Donaldson's gun. Donaldson pushed defendant's hand away and drew the gun out of its holster. Defendant again grabbed at the gun. There was more wrestling around until Kauk put pressure on defendant's neck and he stopped struggling. The officers then placed handcuffs on him.

Defendant still refused to cooperate and had to be dragged from the residence. Defendant refused to get into the police car and leg restraints were applied. When he tried to kick the officers, defendant was "maced," forcibly strapped onto an ambulance board and placed in the vehicle. Defendant was transported to a hospital for examination because he complained that his back hurt. During the trip, defendant told an officer: "When this is all over, I will see you in my cross hairs." When asked if this was a threat, defendant indicated: "Damn right, I'm threatening you."

The next morning the victim's injuries were examined and photographed. When asked where she had been struck, the victim indicated her face around the eyes and her chest and stated her leg should be photographed as well. A nurse examined the victim and discovered a small amount of blood in her right nostril.

Page 747

Defendant was charged with infliction of corporal injury on a spouse (§ 273.5), taking a peace officer's weapon (baton) while obstructing him in [14 Cal.App.4th 769] the performance of his duties (§ 148, subd. (b)), attempting to take a peace officer's firearm while obstructing him in the performance of his duties (§ 148, subd. (d)), and forcibly resisting a peace officer in the performance of his duties (§ 69).

Defendant moved to suppress all evidence obtained as a result of the entry into his residence (§ 1538.5). The motion was denied. The matter was tried to a jury which returned a verdict of guilty on all but the charge of attempting to take a peace officer's firearm in violation of section 148, subdivision (d). Imposition of sentence was suspended for three years and defendant was placed on probation.

I
THE SUPPRESSION MOTION

The principles governing entry and search of a home and those governing entry of and arrest for felony within a home, though sharing the same constitutional provenance, differ in important aspects and are sometimes conflated. Generally, both entry and search of a home may be authorized either by a search warrant or by consent. 2 But entry in order to arrest and the actual arrest of the owner within his home are not both authorized alone by a warrant of arrest or by reasonable cause to arrest. The arrest itself is authorized by a warrant of arrest or, absent a warrant, other justification such as reasonable cause to arrest, but the requirements of a lawful entry to arrest are additional and discrete. 3 Thus neither a warrant of arrest nor the existence of reasonable cause to arrest will excuse the arresting officer from compliance prior to entry with section 844. 4 And even though the officer has reasonable cause to arrest and reasonable grounds to believe the suspect is in his home (see § 844), if the officer does not have a warrant of arrest, he may not enter the home to arrest unless there are either exigent circumstances requiring swift action or consent to enter and arrest.

Defendant's section 1538.5 motion sought suppression of all tangible and intangible evidence derived from the detention, arrest and search of defendant, specifically including "[o]bservations of any officers at the detention of [14 Cal.App.4th 770] Defendant, arrest of Defendant, and/or search of Defendant." The record does not disclose the officers seized any tangible evidence in the home. The only corporeal seizure was of defendant. The motion was apparently brought to suppress testimony of the observations and sensate impressions of the arresting officers as to the charged violations of sections 69 and 148.

Responding to defendant's section 1538.5 motion, the People sought to show at the suppression hearing that the officers had reasonable cause to arrest defendant for violation of section 273.5 and that the entry to arrest complied with section 844 and was justified both by exigent circumstances and by consent. 5

Page 748

Defendant challenges the People's showing of reasonable cause to arrest defendant. "Cause to arrest exists when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime. [Citation.]" (People v. Price (1991) 1 Cal.4th 324, 410, 3 Cal.Rptr.2d 106, 821 P.2d 610.)

Infliction of corporal injury upon a spouse is defined in section 273.5 as follows:

"(a) Any person who willfully inflicts upon his or her spouse ... corporal injury resulting in a traumatic condition, is guilty of a felony....

"......

[14 Cal.App.4th 771] "(c) As used in this section, 'traumatic condition' means a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force."

Defendant argues the officers did not have reasonable grounds to believe the victim had suffered an injury resulting in a "traumatic condition." We disagree. Officer Donaldson testified that when he arrived at the residence he found the victim crying uncontrollably. He observed redness about her face and nose and she informed him her husband, defendant, had hit her a few times in the face and that her neck and nose were sore.

Section 273.5 is violated when the defendant inflicts even "minor" injury. Unlike other felonies, e.g., aggravated battery (§ 243, subd. (d)) which require serious or great bodily injury, "the Legislature has clothed persons of the opposite sex in intimate relationships with greater protection by requiring less harm to be inflicted before the offense is committed." (People v. Gutierrez (1985) 171 Cal.App.3d 944, 952, 217 Cal.Rptr. 616.) The information...

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116 practice notes
  • People v. Lopez, No. H026476.
    • United States
    • California Court of Appeals
    • June 8, 2005
    ...been asked to determine whether the police unlawfully invaded the curtilage of his residence to arrest him. (People v. Wilkins (1993) 14 Cal.App.4th 761, 779, 17 Cal.Rptr.2d 743.) Such an instruction may be appropriate on retrial if there is evidence, not yet apparent, that an officer unlaw......
  • Hernandez v. City of Napa, No. C–09–02782 EDL.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 21, 2011
    ...relationships with greater protection by requiring less harm to be inflicted before the offense is committed.’ ” People v. Wilkins, 14 Cal.App.4th 761, 771, 17 Cal.Rptr.2d 743 (1993). “The statute prohibits an assault by means of force likely to produce great bodily injury, not the use of f......
  • Nuno v. County of San Bernardino, No. ED CV 98-175 RT (VAPx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • July 28, 1999
    ...have known that the other person was a peace officer engaged in the performance of his or her duties."); see also People v. Wilkins, 14 Cal.App.4th 761, 776, 17 Cal.Rptr.2d 743, 751-52 (3rd Dist.1993) (violation of section 148 requires "as an element that the officer at the time of the offe......
  • People v. Yarbrough, No. A120721.
    • United States
    • California Court of Appeals
    • December 17, 2008
    ...[Citations.]' [Citation.]" (People v. James (1998) 62 Cal.App.4th 244, 271-272 [74 Cal.Rptr.2d 7]; see also People v. Wilkins (1993) 14 Cal.App.4th 761, 778 [17 Cal.Rptr.2d 743].) "[I]t matters not whether the issue in question is one of fact or law. Due process requires that it be submitte......
  • Request a trial to view additional results
117 cases
  • People v. Lopez, No. H026476.
    • United States
    • California Court of Appeals
    • June 8, 2005
    ...been asked to determine whether the police unlawfully invaded the curtilage of his residence to arrest him. (People v. Wilkins (1993) 14 Cal.App.4th 761, 779, 17 Cal.Rptr.2d 743.) Such an instruction may be appropriate on retrial if there is evidence, not yet apparent, that an officer unlaw......
  • Hernandez v. City of Napa, No. C–09–02782 EDL.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 21, 2011
    ...relationships with greater protection by requiring less harm to be inflicted before the offense is committed.’ ” People v. Wilkins, 14 Cal.App.4th 761, 771, 17 Cal.Rptr.2d 743 (1993). “The statute prohibits an assault by means of force likely to produce great bodily injury, not the use of f......
  • Nuno v. County of San Bernardino, No. ED CV 98-175 RT (VAPx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • July 28, 1999
    ...have known that the other person was a peace officer engaged in the performance of his or her duties."); see also People v. Wilkins, 14 Cal.App.4th 761, 776, 17 Cal.Rptr.2d 743, 751-52 (3rd Dist.1993) (violation of section 148 requires "as an element that the officer at the time of the offe......
  • People v. Yarbrough, No. A120721.
    • United States
    • California Court of Appeals
    • December 17, 2008
    ...[Citations.]' [Citation.]" (People v. James (1998) 62 Cal.App.4th 244, 271-272 [74 Cal.Rptr.2d 7]; see also People v. Wilkins (1993) 14 Cal.App.4th 761, 778 [17 Cal.Rptr.2d 743].) "[I]t matters not whether the issue in question is one of fact or law. Due process requires that it be submitte......
  • Request a trial to view additional results

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