The Supreme Court of California : Criminal Law--V

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1 California Law Review Volume 58 Issue 1 Article 11 January 1970 The Supreme Court of California : Criminal Law--V California Law Review Berkeley Law Follow this and additional works at: Recommended Citation California Law Review, The Supreme Court of California : Criminal Law--V, 58 Cal. L. Rev. 217 (1970). Available at: Link to publisher version (DOI) This Article is brought to you for free and open access by the California Law Review at Berkeley Law Scholarship Repository. It has been accepted for inclusion in California Law Review by an authorized administrator of Berkeley Law Scholarship Repository. For more information, please contact jcera@law.berkeley.edu.

2 19701 CALIFORNIA SUPREME COURT prevailing party "[1]n any action... This provision will encourage attorneys to accept cases when the buyer has a good defense against an action instituted by a seller or holder or when the buyer wishes to institute an action for such rights as he may have." 5 Although the Legislature has returned the home buyer to his pre-morgan status, Morgan's three intact holdings shield all other consumers from assignees with constructive knowledge of Unruh Act violations, allow for an award of attorney's fees in any successful attack he may make on the contract, and hold out the hope that the finance company-the most powerful of the market place triumvirate of vendor, vendee and lender-will now find it as much in its interest to enforce compliance with the Unruh Act as does the weakest of the trio, the consumer. 55 V CRIINAL LAW A. Multiple Punishment J.M.B. In re Hayes.' The court held that a defendant who drove while under the influence of alcohol' and with knowledge that his license had been suspended 3 could be punished for both offenses. The court found that it is immaterial under Penal Code section 6544 that defendant committed both criminal offenses simultaneously and with the single intent and objective of driving from one place to another. On the evening in question, petitioner was arrested and charged 54. REPORT OF THE SUBCOMm. ON LENDING AND FISCAL AGENCIES, 2 J. CAL. ASSEMBLY, CAL REG. SESS., appendix at 23 (emphasis added). 55. This hope, of course, is made much more problematical by the legislative action which, in effect, ensures that a finance company which fails to exert such control will not face a penalty of several thousand dollars. The removal of houses (and, arguably, house trailers, see note 23 supra) from the coverage of the Unruh Act, and the specific preemption of automobiles by CAL. Civ. CODE (West Supp. 1968), effectively restricts the coverage of the Unruh Act to contracts with a time price differential of 1,000 dollars or less. Numerous consumers spend more than 5,000 dollars for furniture, fur coats, or boats, but such consumers are usually sophisticated enough to protect themselves Adv. Cal. 645, 451 P.2d 430, 75 Cal. Rptr. 760 (1969) (Mosk, J.) (4-3 decision). 2. CAL. VEa. CODE (West Supp. 1968): "It is unlawful for any person who is under the influence of intoxicating liquor... to drive a vehicle upon any highway." 3. CAL. Van. CODE (West Supp. 1968): "No person shall drive a motor vehicle upon a highway at any time when his driving privilege is suspended or revoked and the person so driving has knowledge of such suspension or revocation." 4. CAL. PENAL CODE 654 (West 1957).

3 218 CALIFORNIA LAW REVIEW [Vol. 58:80 with driving while intoxicated and driving with knowledge that his license had been suspended. He pleaded guilty to both charges and was sentenced consecutively for the offenses. On his original appeal to the supreme court by a writ of habeas corpus Hayes alleged that multiple punishment violated Penal Code section 654 which 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 court sustained his argument and, by the narrow margin of four to three, set aside the sentences. On rehearing, however, the court reversed itself and reinstated the sentences, again dividing four to three. 6 Justice Mosk, writing for the majority on rehearing, found that the act or omission required by section 654 must be a criminal act.' A neutral, non-criminal act which may coincidentally be an essential element in the commission of two distinct offenses will not preclude multiple punishment. Employing this rationale, the court concluded that the petitioner had committed two distinct acts within the meaning of section 654, rather than the single act of driving from one place to another on this particular evening. In rejecting the petitioner's argument that he had committed only the single act of driving, the court noted that the Legislature did not intend to punish that act. An act for the purposes of the Vehicle Code and section 654 includes the particular circumstances which render the otherwise innocent activity of driving culpable. Hayes therefore committed the two distinct criminal acts of driving while under the influence and driving with knowledge of a suspended license, and consequently could be punished separately for each offense. Taking a less restrictive view of the nature of an act or omission required under section 654, the dissent maintained that the act of driving from one place to another would suffice to invoke section 654. Chief Justice Traynor, writing for the minority, argued that the language of section 654 does not "refer to the entire criminal conduct proscribed by each provision but to conduct significantly common to both."" Moreover, the dissent challenged the court's holding that the act essential to both offenses need be punishable in its own right. Under the minority view the state cannot punish an individual twice for being intoxicated and possessing a suspended license simultaneously, but only once for the act of driving accompanied by the 5. In re Hayes, 442 P.2d 366, 69 Cal. Rptr. 310 (1968). 6. Justice Peters changed his vote upon rehearing Adv. Cal. at 648, 451 P.2d at 431, 75 Cal. Rptr Id. at 653, 451 P.2d at 435, 75 Cal. Rptr. at' 795.

4 1970] CALIFORNIA SUPREME COURT requisite subjective states. Petitioner's actus reus under the minority rule would be limited to the act of driving without regard to the particular circumstances which render his act criminal. To follow the majority rule, argued Traynor, would lead to the absurdity of imposing multiple punishment where a defendant commits an innocent act which happens to be essential to both offenses, while the man who commits a criminal act common to both offenses can only be punished once. 9 The predominant California rule until Hayes was the "intent and objective" test set forth in Neal v. State." 0 In that case defendant attempted to murder two people by setting fire to their home. The court held that the arson did not constitute a separate criminal act and hence the defendant could not be punished for the arson committed in pursuance of the single intent to murder the two people. Given, therefore, a single criminal intent or objective, the Neal rule precludes multiple punishment for separate criminal acts committed as means to that end. The court did, however, permit an exception to the general rule barring multiple punishment for a single act by upholding consecutive sentences for each count of attempted murder since the act was intended to harm more than one person. In formulating the "intent and objective" test, the court stated that "the purpose of the protection against multiple punishment is to insure that the defendant's punishment will be commensurate with his criminal liability."" Applying this principle, the court reasoned that Neal should be punished consecutively for each attempted murder arising from the single act of arson. Yet as the dissent in Neal observed, the test proposed by the court still did not furnish a satisfactory test which the trial court can apply, for it merely substituted "criminal intent or objective" for "act or omission." The problem of definition remained. Justice Schauer, in dissent, expressed concern that it has become "impractical if not impossible to formulate a single, general test which would encompass all the previous, inconsistent appellate decisions concerning multiple punishment under Section 654. '' 12 The difficulties involved in applying the Neal standard are apparent in both opinions in Hayes. The majority chose a restrictive view of "intent and objective," limiting its application to a criminal intent and objective. The dissent maintained that even if the "intent and ob- 9. Id. at 659, 451 P.2d at 439, 75 Cal. Rptr. at 799. For example, the man who commits an illegal abortion cannot be punished separately for the offense of committing an illegal abortion and for the murder resulting from the abortion. People v. Brown, 49 Cal. 2d 577, 320 P.2d 5 (1958) Cal. 2d 11, 357 P.2d 839, 9 Cal. Rptr. 607 (1960). 11. Id. at 20, 357 P.2d at 844, 9 Cal. Rptr. at Id. at 25 n.2, 357 P.2d at 847 n.2, 9 Cal. Rptr. at 615 n.2.

5 CALIFORNIA LAW REVIEW [Vol. 58:80 jective" test could be applied in Hayes, this standard was met by petitioner's intent to drive from one place to another. It was further argued by the dissent that the Neal test could be used only negatively in barring multiple punishment, and could not be employed as a justification for multiple punishment simply because multiple intents and objectives may have been present. Hayes, like Neal, appears to raise more questions than it answers; the court again fails to establish any definitive guidelines for sentencing except in a very limited range of factual contexts.' 8 In holding that the act or omission required under section 654 must be a criminal act or omission, the court has contributed only another abstract formulation to the list of multiple punishment tests.' 4 The court itself noted that its new rule will not overrule any existing test, but applies only to the particular facts of this case. Moreover the court pointed out that if a defendant qualifies for the protection of section 654 under any one of the existing tests, then a contrary result under any other test is immaterial.'" Since no particular test is weighted more heavily than any other, multiple punishment will be precluded if the defendant's conduct meets the requirements of any one test. The court's difficulty in deciding this case is due, in part, to the patent vagueness of section 654. The practical consequences of this vagueness become apparent in the area of prosecutorial discretion and plea bargaining. When faced with one course of conduct with a variety of criminal ramifications, the prosecutor has considerable discretion in selecting and shaping particular offenses for prosecution.' While the uncertainty in the area of multiple punishment may pose definite problems for the prosecutor in calculating the possible outcome of his case, this same uncertainty may also put him in a better plea-bargaining po- 13. Future application of the rule set forth by the majority in Hayes appears to be limited to nearly identical factual circumstances. One such situation arose in a recent Illinois decision, People v. Mundorf, 97 Ill. App. 2d 130, 239 N.E.2d 690 (1968). The position of the court was in accord with the dissenting view in Hayes, holding that a defendant could be sentenced consecutively for the same offenses as those involved in Hayes. 14. Section 654 has been held to apply where one of the defendant's offenses "necessarily included" another offense, People v. Greer, 30 Cal. 2d 589, 184 P.2d 512 (1947) (statutory rape includes contributing to the delinquency of a minor); where one offense is "necessarily incident" to another, People v. Knowles, 35 Cal. 2d 175, 217 P.2d 1 (1950) (kidnapping for the purpose of robbery incident to robbery); where defendant has been convicted of two offenses both arising from an "indivisible act," People v. Brown, 49 Cal. 2d 577, 320 P.2d 5 (1958) (murder and abortion); and where there was a single "intent and objective" underlying the defendant's conduct. Neal v. State, 55 Cal. 2d 11, 357 P.2d 839, 9 Cal. Rptr. 607 (1960) (arson and attempted murder) Adv. Cal. at 647 n.1, 451 P.2d at 431 n.1, 75 Cal. Rptr. at 791 n See, e.g., Kirchheimer, The Act, The Offense, and Double Jeopardy, 58 YALE LJ. 513, 525 (1949).

6 1970] CALIFORNIA SUPREME COURT sition. By splitting a single course of conduct into separate offenses the prosecutor has more counts which he can dismiss in exchange for a guilty plea. In Hayes the Attorney General attempted to invoke the "intent and objective" test of Neal as a basis for splitting the defendant's course of conduct into the separate acts and offenses for which petitioner was ultimately convicted and sentenced. The rule set forth in Hayes could have a similar effect since the court narrowly construes the act or omission required under section 654. The effect of Hayes, like Neal, may be to encourage more legal fictions which allow a prosecutor to destroy the natural unity of a course of conduct. Underlying the immediate problems raised by cases like Hayes and Neal is the larger issue of the proper role of the Legislature in setting guidelines for sentencing. The Attorney General argued in Hayes that the two offenses involved different public purposes and constituted distinct evils to society. The dissent rebutted this contention by favoring strict construction of section 654 to preclude multiple punishment, arguing that a distinct-evils test would be inappropriate when the situation is already governed by a statutory provision. 1 7 Moreover, in many situations where section 654 is obviously intended to apply, the two criminal statutes violated are aimed at distinct evils." 8 Under the dissenting view it is properly a legislative rather than a judicial function to define the extent of punishment to be imposed for particular offenses. While the Legislature cannot, of course, foresee every possible combination of criminal conduct and deal with each accordingly, the Legislature does nevertheless proscribe multiple punishment in certain types of offenses, 9 not leaving the question to the uncertainties of a decision under section 654. The conclusion urged by the dissent in Hayes is that in the absence of a definite legislative pronouncement, the general proscription of section 654 should govern, with any doubt as to the divisibility of the course of conduct to be resolved in favor of the defendant-" It would further follow from this argument that tests such as Neal's could be employed only in a negative manner to preclude multiple punishment, and not as a basis for dividing a course of conduct in order to impose multiple punishment Adv. Cal. at 655, 451 P.2d at 436, 75 Cal. Rptr. at See People v. Brown, 49 Cal. 2d 577, 320 P.2d 5 (1958) (defendant could not be punished both for performing an illegal abortion and for the resulting murder); People v. Craig, 17 Cal. 2d 453, 110 P.2d 403 (1941) (defendant cannot be punished for both forcible rape and statutory rape). 19. Cf., e.g., CAL. PENAL CODE 67, 68, 98 (West Supp. 1968) (disqualification from or forfeiture of office in addition to any other punishment for certain offenses). 20. Cf., e.g., In re Johnson, 65 Cal. 2d 393, 420 P.2d 393, 54 Cal. Rptr. 873 (1966) (doubt as to divisibility of a narcotics transaction on basis of separate deliveries to the same purchaser resolved in favor of defendant).

7 222 CALIFORNIA LAW REVIEW [Vol. 58:80 The Joint Legislative Committee for Revision of the Penal Code has suggested one possible legislative approach to the problem. 21 Their proposal would establish definite guidelines for sentencing by eliminating all consecutive sentencing with certain clearly defined exceptions, namely, where the defendant "has been convicted under a judgment of conviction which includes two or more felonies... which were committed under circumstances which created a danger of death or serious bodily injury to more than one person or which involved sexually aggressive conduct against more than one child. 22 This proposal would give effect to the basic premise of Neal that the defendant's punishment should be "commensurate with his criminal liability. '2 The Committee is thus changing the exception in Neal 24 into a general preclusion against multiple punishment. The full effect of the arguments raised in the Hayes dissent is difficult to ascertain. The difficulty the court had in deciding the case is, however, indicative of a growing reluctance to impose multiple punishment in the absence of a positive legislative enactment. The difficulty the court had in finally resolving this case further evidences the pronounced uncertainty in this area and the pressing need for legislative clarification of the ambiguities of section 654. B. Resisting Arrest R.F.L. People v. Curtis.' The court considered the application and the constitutionality of California Penal Code section 834a which provides: "If a person has knowledge, or by the exercise of reasonable care, should have knowledge, that he is being arrested by a peace officer, it is the duty of such a person to refrain from using force or any weapon to resist such arrest." 2 In a unanimous decision the court held: First, that section 834a applies to unlawful arrests and as thus interpreted is constitutional; 3 and second, that section 834a only eliminated the com- 21. CAL. JoiNT LEGISLATIVE COMM. FOR REVISION OF THE PENAL CODE, TENTA- TVE DRAFT No. 2 (1968). 22. Id. at 204(4), 207(2) Cal. 2d at 20, 357 P.2d at 844, 9 Cal. Rptr. at See text at note 11 supra Adv. Cal. 360, 450 P.2d 33, 74 Cal. Rptr. 713 (1969) (Mosk, J.) (unanimous decision). 2. CAL. PENAL CODE 834a (West Supp. 1968). Section 834a was enacted in Ch. 2147, [19571 Cal. Stats The portion of the court's opinion dealing with the question of the use of a prior conviction for impeachment is not covered in this Note. 3. Section 834a's constitutionality was attacked on the basis of unreasonable

8 1970] CALIFORNIA SUPREME COURT mon law defense of resistance to unlawful arrest and did not create a new substantive crime of resisting unlawful arrest. 4 A police officer had observed Curtis walking along the street at night. Curtis matched the general description of a reported prowler. When Curtis complied with the officer's order to stop, the officer emerged from his patrol car and immediately informed Curtis that he was under arrest. Curtis objected and a violent struggle ensued. The officer finally effected the arrest, but both men were injured in the process. Charged with battery upon a peace officer, 5 Curtis defended on the ground that he was justified in using reasonable force to resist an unlawful arrest, that is, an arrest without a valid warrant or probable cause. Both the trial court and the court of appeal rejected this defense because of section 834a. On appeal to the supreme court, Curtis conceded that he knew the person effecting the arrest was a peace officer. This admission, together with the supreme court's finding that the arrest was unlawful, placed the application of section 834a to an unlawful arrest directly at issue. The common law rule allowing use of reasonable force to resist an unlawful arrest developed during the 17th and 18th centuries as a result of two factors. First, prison conditions were intolerable; physical abuse and epidemic diseases were common. 6 Second, the abuse of bail and early access to a court of law made it likely that a person unlawfully arrested would spend considerable time in jail before he could secure his release by legal remedies. 7 The combination of these factors made it likely that an arrest would lead to grave physical harm-an assumption amply supported by an annual inmate death rate of 25 percent. 8 The common law, therefore, recognized that a person was justified in using reasonable force to avoid these consequences when the arrest was unlawful. This was accomplished by establishing a special defense for a defendant in a criminal action-a legal justification which he could assert to prevent criminal sanctions from attaching to his acts of resistance. At one time all jurisdictions in the United States accepted this deseizure under the fourth amendment, and deprivation of liberty without due process under the fifth amendment. Opening Brief for Appellant at Adv. Cal. at 367, 450 P.2d at 37, 74 Cal. Rptr. at CAL. PENAL CODE 243 (West Supp. 1968). He was also charged with burglary but was acquitted. 6. See Comment, Criminal Law-Arrest-The Right to Resist Unlawful Arrest, 7 NAT. REs. J. 119, (1967); Warner, The Uniform Arrest Act, 28 VA. L. REv. 315, 330 (1941). 7. Id. 8. Comment, supra note 6, at

9 224 CALIFORNIA LAW REVIEW [Vol. 58:80 fense, 9 but since 1941 there has been a slow trend toward abandoning it.' 0 In California, the lower courts have cited section 834a numerous times as statutory authority for the abrogation of the defense." Curtis, however, is the first case in which the California supreme court has been required to construe section 834a.' 2 The questions facing the court in Curtis were: First, did section 834a abrogate the common law defense of use of reasonable force to resist unlawful arrest; second, does an accused person have a constitutional right to raise this defense against a charge of battery upon a peace officer; and third, did section 834a have any effect upon other special defenses available to a defendant or upon the substantive elements of a criminal charge?'" The court concluded that section 834a abrogated the defense. The report of the California State Senate Interim Judiciary Committee in 1957 indicates clearly that this was the aim of the Legislature in enacting section 834a.' 4 The report contains an analysis of section 834a and concludes that its effect would be to change the general rule that an unlawful arrest can be resisted.' 5 It further notes that "section 834a is a new section incorporating the principle of section five of the Uniform Arrest Act."'" A committee appointed by the Interstate Commission on Crime developed the UAA and promulgated it informally in 1941.'7 Section five of the UAA was intended to prevent persons from "defending a prosecution for murder, manslaughter and felonious assault on the ground that resistance was legal."' It specifically applies to un- 9. See, e.g., United States v. Di Re, 332 U.S. 581 (1948); John Bad Elk v. United States, 177 U.S. 529 (1900); People v. Spinosa, 115 Cal. App. 2d 659, 252 P.2d 409 (1st Dist. 1952). 10. Four states have done so by statute: DEL. CODE ANN. tit. 11, 1905 (1953); N.H. REv. STAT. ANN. ch. 594:5 (1955); N.Y. PENAL LAw (McKinney Supp. 1968); R.I. GEN. LAWS (1956). New Jersey achieved the same end by judicial decision. State v. Koonce, 89 N.J Super. 169, 214 A.2d 428 (1965). 11. E.g., People v. Rhone, 267 Cal. App. 2d 653, 73 Cal. Rptr. 463 (4th Dist. 1968); Pittman v. Superior Court, 256 Cal. App. 2d 795, 64 Cal. Rptr. 473 (2nd Dist. 1967); People v. Gaines, 247 Cal. App. 2d 141, 55 Cal. Rptr. 283 (5th Dist. 1966); People v. Bums, 18 Cal. Rptr. 921 (App. Dep't Super. Ct. 1961). 12. The court had, however, previously cited People v. Bums, 18 Cal. Rptr. 921 (App. Dep't Super. Ct. 1961) (see note 11 supra) with approval in People v. Coffey, 67 Cal. 2d 204, 221 n.18, 430 P.2d 15, 26 n.18, 60 Cal. Rptr. 457, 468 n.18 (1967) (dictum). 13. The last question was raised by previous lower court decisions applying section 834a. See text accompanying notes infra for discussion of the results reached in those cases. 14. PROGRESS REPORT OF THE SENATE INTERIM JUDIcARY COmmITTEE, 1 App. I. CAL. SENATE 423 (1957). 15. Id. at Id. at Warner, supra note 6, at 316. The Act was never formally adopted by the Commission and was never promulgated in an official form. 18. Id. at 331.

10 1970] CALIFORNIA SUPREME COURT lawful arrests. 9 While the aim of section 834a is obvious, its language, unlike that of section five of the UAA, does not specifically refer to unlawful arrest. 0 This raised the question of whether the language was specific enough to change a common law rule affecting criminal liability in light of the doctrine of construction that "statutes are not presumed to alter the common law otherwise than the act expressly provides." 2 The court decided, however, that the prior decisions construing section 834a as applying to unlawful arrests compelled the conclusion that the statute is now unambiguous and abrogates the defense. 22 This means that the California defendant will not be allowed to defend an assault or battery charge solely on the ground that his use of force was reasonable and justified because he was resisting an unlawful arrest. As noted before, the lower courts have long held this view, and Curtis serves only to affirm this construction. The real significance of Curtis for the criminal defendant lies in the court's holding that section 834a only eliminated the defense of resistance to unlawful arrest and had no other legal effect. Curtis was convicted of battery upon a peace officer in violation of California Penal Code section 243. Since that section applies only when the officer "is engaged in the performance of his duties, ' 23 it was necessary for the court initially to determine whether an officer- was engaged in the performance of his duties when making an unlawful arrest. The court first referred to California Penal Code section 148 which makes it a misdemeanor to resist, delay, or obstruct an officer in the discharge of "any duty of his office," 24 and noted that "section 148 has long been construed by the courts as applying only to lawful arrests, because 'an 19. Id. at The language of the two are the same except that section five of the UAA has a final phrase "regardless of whether or not there is legal basis for the arrest." Id. Normally this might be construed as evidence that the Legislature did not intend to include an unlawful arrest under the operation of section 834a. This conclusion finds little support in this case. First, as noted above, see text accompanying notes 14-19, supra, there is clear evidence to the contrary. Second, there is a strong suggestion that the ommission of the specific reference to unlawful arrest was merely an oversight. As first introduced, section 834a read: "If a person has knowledge, or by the exercise of reasonable care, should have knowledge, that he is being stopped, detained for questioning, or arrested by a peace officer, it is the duty of such person to refrain from using force or any weapon to resist such detention or arrest." A.B. 1857, 1957 Sess. California Legislature (emphasis added). The section was amended to its present form by the Senate. 3 J. CAL. SENATE, 1957 REGULAR SESS Thus, the language of section 834a was never intended to be the same as section five of the UAA and there is little to be gained from comparing the language of the two in order to deduce the intent of the legislature. 21. Guardianship of Reynolds, 60 Cal. App. 2d 669, 141 P.2d 498 (3d Dist. 1943); see Estate of Elizalde, 182 Cal. 427, 433, 188 P. 560, 562 (1920) Adv. Cal. at 364, 450 P.2d at 35, 74 Cal. Rptr. at CAL. PENAL CODE 243 (West Supp. 1968). 24. Id. 148.

11 226 CALIFORNIA LAW REVIEW [Vol. 58:80 officer is under no duty to make an unlawful arrest.' 25 The court found that the Legislature's use of the same key language when it later enacted section 243 compelled the same construction. 2 6 The court then considered whether section 834a itself could be construed as changing the court's prior interpretation of "duty" to include an unlawful arrest. The court held that it could not because section 834a, first, does not purport to do so; and second, was clearly "meant at most to eliminate the common law defense of resistance to unlawful arrest. '27 The court emphasized that this was the approach taken by both the UAA 28 and the Model Penal Code 2 9 and was consistent with the views expressed in legislative hearings where the operation of section 834a was discussed. 30 As a result of this construction the court held that when a defendant offers only reasonable resistance to unlawful arrest he cannot validly be convicted of battery upon a peace officer, but only of simple assault or battery. 3 ' The court specifically disapproved six cases holding or implying otherwise. 3 2 Thus, the court not only limited the effect of section 834a to abolishing the one specific defense of resistance to unlawful arrest but explicitly preserved all other special defenses as well as the requirement that the police officer be acting within the scope of his duties. This should serve as a clear guide to the California courts in applying section 834a and hopefully will end much of the confusion which has surrounded its meaning in the past. One example Curtis notes is the fact that California courts appear to have applied section 834a to eliminate not only the defense of reasonable resistance to unlawful arrest but also the defense of self-defense against the peace officer's use of excessive force in effecting the arrest." 3 The court emphasized that this is a Adv. Cal. at 367, 450 P.2d at 37, 74 Cal. Rptr. at Id. at 368, 450 P.2d at 38, 74 Cal. Rptr. at 718. The same language is used in CAL. PENAL CODE 245 (West Supp. 1968) (assault with a deadly weapon upon a peace officer) and id. 241 (assault upon a peace officer) and the same construction would thus seem to apply there. See 70 Adv. Cal. at 370 n.9, 450 P.2d at 39 n.9, 74 Cal. Rptr. at 719 n Adv. Cal. at 367, 450 P.2d at 37, 74 Cal. Rptr. at 717. (emphasis added). 28. Id. at 368, 450 P.2d at 38, 74 Cal. Rptr. at 718. See text accompanying note 17 supra Adv. Cal. at 368, 450 P.2d at 38, 74 Cal. Rptr. at 718. See MODEL PENAL CODE 3.04 (2)(a)(i), Comment (Tent. Draft No. 8, 1958) Adv. Cal. at 367 n.5, 450 P.2d at 37 n.5, 74 Cal. Rptr. at 717 n Id. at 368, 450 P.2d at 38, 74 Cal. Rptr. at Id. The cases are People v. Rhone, 267 Cal. App. 2d 653, 73 Cal. Rptr. 463 (4th Dist. 1968); People v. Hooker, 254 Cal. App. 2d 878, 67 Cal. Rptr. 675 (2d Dist. 1967); Pittman v. Superior Court, 256 Cal. App. 2d 795, 64 Cal. Rptr. 473 (2d Dist. 1967); People v. Gaines, 247 Cal. App. 2d 141, 55 Cal. Rptr. 283 (5th Dist. 1966); People v. Baca, 247 Cal. App. 2d 487, 55 Cal. Rptr. 681 (2d Dist. 1966); People v. Bums, 18 Cal. Rptr. 921 (App. Dep't Super. Ct. 1961). 33. See CAL. PENAL CODE 835, 835a (West Supp. 1968) (statutory limit on the amount of force a peace officer may use to effect an arrest).

12 1970] CALIFORNIA SUPREME COURT separate and distinct defense and that if an officer uses excessive forcewhether the arrest is lawful or unlawful-the accused is privileged to use reasonable force to protect himself from physical harm.1 4 Another example, not discussed in Curtis, is found in People v. Roman. 3 5 The defendant, charged with the murder of a police officer, requested a manslaughter instruction on the theory that the officer's original attempt to effect an unlawful arrest had provided the provocation necessary to reduce murder to manslaughter. The trial court refused to give the instruction. On appeal the court held that the arrest was lawful, but said that even assuming that it was unlawful: "Necessadly [section 834a] removes unlawful arrest by a peace officer from the list of factors capable of furnishing sufficient provocation to reduce murder to manslaughter." 36 If the only effect of section 834a is to eliminate the specific defense of resistance, it follows that it has no effect on the separate and unrelated issue of provocation in a homicide case and that this dicta in Roman is disapproved by implication in Curtis. 3 " The court's unanimous decision in Curtis should end the fight over section 834a's constitutionality in the California courts. Curtis found that the constitutional right of a person to be free from unreasonable seizure was not a constitutional impediment to the adoption of section 834a.1 8 The court reasoned that the police, with their modem weapons and communication equipment, simply have the ability to overcome any reasonable resistance. The arrestee, for all his efforts, usually ends up in jail anyway, and the only effect of resistance is injury to one or both parties. 39 This makes physical resistance the least effective and desirable of all possible remedies for the unlawful arrest and therefore its rejection, "particularly when balanced against the states interest in discouraging violence," cannot be considered unconstitutional. 40 The court concludes that eliminating the right to resist does "not actually Adv. Cal. at 370, 450 P.2d at 39, 74 Cal. Rptr. at 719. Accord, State v. Mulvihill, 105 N.J. Super. 458, 462, 253 A.2d 175, 178 (1969) Cal. App. 2d 656, 64 Cal. Rptr. 268 (2d Dist. 1967). 36. Id. at 660, 64 Cal. Rptr. at Significantly, the Model Penal Code treats the two as separate defenses. Compare MODEL PENAL CODE 3.04 (2) (a) (i), Comment (Tent. Draft No. 8, 1958) with id (1) (b), Comment (Tent. Draft No. 9, 1959). It is not here argued that the Legislature cannot exclude a given factor as being legally incapable of furnishing provocation, but only that this was not the effect of section 834a as construed by Curtis. Also, the Roman court's view of section 834a would, in some cases, reduce the mens rea requirement for one of the substantive elements of murder (lack of provocation) to negligence. This would occur where a defendant negligently fails to realize that he is being arrested by a peace officer and is thereby precluded from raising the issue of provocation Adv. Cal. at 365, 450 P.2d at 37, 74 Cal. Rptr. at Id. at 366, 450 P.2d at 36, 74 Cal. Rptr. at Td. at 366, 450 P.2d at 37, 74 Cal. Rptr. at 717.

13 CALIFORNIA LAW REVIEW [Vol. 58:80 alter or diminish the remedies available against the illegal arrest" but merely requires the person to pursue his remedies in the courts. 41 Implicit in the court's reasoning is a determination that the use of any force solely to resist an arrest-lawful or unlawful-is unreasonable. Prison conditions and arrest procedures have changed substantially since the privilege to use force to resist an unlawful arrest first developed. Today the arrestee seldom has to fear for his physical wellbeing because of the unlawful arrest alone. On the other hand, the modem weapons available to both the police and the public greatly increase the chance that serious injury will result if any resistance is offered. Considered together in determining the amount of force which is reasonable in the circumstances, these two factors support the conclusion that, not only is section 834a constitutional, but as a matter of law, the use of any force to resist arrest is per se unreasonable in view of the serious physical consequences which may result from offering resistance to a peace officer. If the court had fully articulated this conclusion it would have clearly undercut another possible argument against the constitutionality of section 834a. 42 Although under the court's construction of section 834a, arrestees using only reasonable force cannot be convicted of offenses against a peace officer in the performance of his duties, 48 they can still be convicted of other criminal charges such as simple assault and battery. 44 If resistance to unlawful arrest may, in some circumstances, be considered reasonable, it can be argued that a person cannot constitutionally be punished for using only reasonable force to protect his constitutional right to be free from unlawful seizure. Curtis, of course, rejects this argument by implication. The United States Supreme Court, however, has not passed on the question, and the slow but steady trend of the states to adopt statutes similar to section 834a makes it likely that it will reach the Court eventually. 45 When and if the Supreme Court faces the question it will have to square its answer with its holding in Wright v. Georgia. 4 0 As Curtis noted in citing 41. Id. 42. The court's discussion of the constitutional issue focuses primarily on the ineffectiveness of resistance as a means of preventing an unlawful arrest. See text accompanying notes supra. The opinion does not deal specifically with the question of whether a person can constitutionally be punished for using only reasonable force to protect a constitutional right. 43. See text accompanying notes supra. 44. Id. 45. See statutes cited in note 10 supra. As this Note is published, there is a decision pending in the United States Court of Appeals for the Ninth Circuit attacking section 834a on the same constitutional grounds urged in Curis. MacDonald v. Musick, Civil No (9th Cir., filed April 11, 1968) U.S. 284 (1963). The case concerned the conviction of several black youths for failure to obey an officer's order to leave a public park.