Carcamo v. L.A. County Sheriff's Dept. ( 2021 )

Filed 9/3/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
LASHUN CARCAMO et al., B296666
Plaintiffs and Appellants, Los Angeles County
Super. Ct. No. TC028076
v.
LOS ANGELES COUNTY
SHERIFF’S DEPARTMENT et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Mark C. Kim, Judge. Reversed and
remanded.
Law Office of Erik C. Alberts and Erik C. Alberts for
Plaintiffs and Appellants.
Harold G. Becks & Associates, Harold G. Becks and
Valorie Ferrouillet for Defendants and Respondents.
_________________________
Some 58 years ago, our Supreme Court held California
had “adopted a general scheme for the regulation of the criminal
aspects of being intoxicated in a public place.” (In re Koehne
(1963) 59 Cal.2d 646, 648 (Koehne).) That general scheme
is encompassed in Penal Code section 647, subdivision (f)
(section 647(f)). Stating, “Whenever the Legislature has seen
fit to adopt a general scheme for the regulation of a particular
subject, the entire control over whatever phases of the subject
are covered by state legislation ceases as far as local legislation
is concerned,” the high court invalidated a city ordinance that
prohibited being or appearing “ ‘in a state of drunkenness or
intoxication’ ” “ ‘in any public place.’ ” (Koehne, at pp. 647–648.)
Notwithstanding decades of clear Supreme Court authority,
as of at least February 2014 the City of Carson had on its books
a “public intoxication” ordinance that purports to criminalize
conduct that is not unlawful under the Penal Code. Los Angeles
County Sheriff’s Department deputies arrested plaintiffs
LaShun Carcamo, Anthony January, and Kirby Hales for
public intoxication under that ordinance, Carson Municipal Code
section 4201 (C.M.C. section 4201). The arrestees spent a night
and the better part of the next day in jail. They were never
charged.
Plaintiffs sued the sheriff’s department and Deputy Larry
Billoups for wrongful arrest. The trial court declined to address
the preemption issue, instructing the jury that, if deputies saw
plaintiffs drunk in public, they had reasonable cause to arrest
them under the Carson ordinance. The jury found in defendants’
favor and plaintiffs appeal. We reverse.
2
BACKGROUND
Plaintiffs filed a third amended complaint on March 22,
2016, alleging false imprisonment and battery. 1 They dismissed
their battery cause of action at trial.
On the night of February 15, 2014, Carcamo and January,
who were dating at the time, had dinner at the Olive Garden
in Carson. Both testified they had nothing to drink that night.
Their receipt showed a free sample of wine but no alcoholic drink
order.
In February 2014 Hales and his half-brother Kelton Jolly
were living at their mother’s house in Carson. Jolly and January
were longtime friends. On February 15, Hales and Jolly had
gone to a car show and then to visit a friend. When they got
back to the house, Hales parked his van at the curb outside; Jolly
was in the passenger seat. They had not been drinking and there
was no alcohol or food in the van. Hales was taking medication
to stabilize his heart for surgery, and alcohol would “throw
everything off.”
January had called Jolly to say he was coming over, and
Hales and Jolly waited for him in the van for 10 or 15 minutes.
The Jolly home was about five minutes away from the Olive
Garden; January drove there so he could stop in and say hello
to Hales and Jolly. January parked across the street and walked
to the passenger side of the van to talk. Carcamo stayed in the
1 Plaintiffs have not included any of the versions of the
complaint in the appellate record. We use the term “false arrest,”
as false arrest and false imprisonment are not separate torts;
false arrest is one way of committing a false imprisonment.
(Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 752, fn. 3.)
3
car. January stood upright talking to Jolly. According to Jolly,
January did not smell of liquor or seem intoxicated in any way.
After January and Jolly had been talking for about five
or 10 minutes, a patrol car pulled up behind the van with its
lights flashing. Two deputies jumped out. They told January
to step away from the van. The deputies pulled him back toward
the patrol car.
Hales started to get out of the van. One of the deputies
told him to shut the door, then to exit slowly with his hands over
his head and to step backwards toward the patrol car. Hales
complied, and the deputy handcuffed him and put him in the
back of the patrol car. No one asked him if he had been drinking.
The deputies pulled Jolly out of the van, took him to the
patrol car, frisked and cuffed him, and put him in the back of
the patrol car. They never asked him if he had been drinking
that night. Jolly gave the deputies a false name, but they ran
his prints and found his outstanding warrants, one of which
was for failure to appear in a DUI case.
The deputy later identified as Billoups said they had
been getting calls that someone had been breaking into vans
in the area. January explained they were just talking and asked,
“ ‘Why are you harassing us?’ ” Billoups asked January if he
had been drinking. January said no. Billoups asked his partner,
Chad Holland, to take January back to the patrol car. Holland
never asked January if he had been drinking.
When Carcamo saw deputies taking January to the patrol
car, she got out of January’s car, locked it, and walked across
the street. The deputies told her to stop and she stood behind
the van. Billoups asked Carcamo if she had been drinking and
she said no. Billoups told her he didn’t believe her. A female
4
deputy arrived and patted Carcamo down, emptied her pockets,
handcuffed her, and put her in a patrol car.
Deputies took Carcamo, Hales, January, and Jolly to the
sheriff’s station. Carcamo, Hales, and January were released
the next evening around 7:00 p.m. 2 Hales felt weak and noticed
a little pain because he had not been able to take his heart
medication.
Called by plaintiffs as a witness, Billoups testified he had
arrested Carcamo and Hales, and Holland had arrested January
and Jolly. Billoups had been with the sheriff’s department for
eight years, and he was Holland’s training officer at the time.
Billoups made the call that Carcamo, Hales, and January were
drunk in public, and that was the only reason for their arrests.
Billoups had been briefed that night on burglaries in the
area. Around 11:05 p.m. he saw Hales’s van parked on the street
with someone leaning his torso inside the passenger window.
Billoups turned on his lights and stopped his patrol car behind
the van. He approached the driver’s side and told Hales and
Jolly to show him their hands, because Hales was opening the
car door. They complied, while Holland “contact[ed]” January
on the passenger side.
Billoups testified he could smell alcohol on Hales’s breath,
and his eyes were bloodshot and watery. An open beer can was
on the front center console. Billoups didn’t collect the beer can
because he didn’t see anyone drinking from it. But he told
Holland he’d seen it.
2 Jolly stayed in custody for 18 days to serve time on his
warrants.
5
Billoups asked Hales if he’d been drinking and Hales
answered yes, he was sitting there drinking and eating with
Jolly. Hales was slurring his words. When Holland came back
from putting January in the patrol car, Billoups ordered Hales
out of the van to investigate possible intoxication in public. He
put Hales’s hands behind his back, and noticed he was walking
“slightly . . . off balance.” Holland patted Hales down and put
him in the back seat of the patrol car.
Billoups saw Carcamo “swaying” as she got out of the
car parked on the other side of the street. She walked across
the street to the sidewalk behind the patrol car. Carcamo knelt
on the sidewalk and rested her back against the brick wall.
Billoups twice asked her if he could help her and she said no.
From three feet away, he could smell alcohol on her breath. He
asked her to stand up and put her hands on the hood. Billoups
asked Carcamo if she had been drinking and she answered she
had had a few beers or a few drinks with her boyfriend at dinner.
Billoups decided to arrest Carcamo and waited for a female
deputy to arrive and pat her down.
Billoups testified Carcamo was not a danger to herself
or others, she was not blocking any public way, and she did
not obstruct traffic when she crossed the street. Billoups
acknowledged those were the elements for a violation of section
647(f), but he didn’t arrest plaintiffs for violating the Penal Code;
he arrested them for violating the Carson ordinance. A violation
of C.M.C. section 4201 required only that a person be intoxicated
in public in the City of Carson. Sobriety tests were required
for an arrest for driving under the influence, but not for being
intoxicated in public.
6
Billoups’s partner, Holland, likewise testified plaintiffs
were arrested for violating C.M.C. section 4201. He explained
that, while section 647(f) referred to being unable to care for
yourself, C.M.C. section 4201 was a “lighter range. Anyone who
is intoxicated in public.” Holland testified none of the plaintiffs
was belligerent; they were just intoxicated, and “under [the]
Carson Municipal Code, if you’re intoxicated and you’re
displaying the objective symptoms of being intoxicated, it’s
a crime.” The incident report he prepared back at the station
stated all three plaintiffs were arrested for “drunk in public”
under C.M.C. section 4201.
Clarence Chapman testified as an expert in police policy,
training, tactics, and procedures. The department did “pretty
intense” training on intoxication. C.M.C. section 4201 included
being drunk in public in a vehicle. To violate section 647(f) one
would have to be “falling down drunk” and ready “to walk out
into traffic” or “fall off the roof,” and need “to go to jail for your
own good.” A different level was required for C.M.C. section
4201, which prohibited being outside in an intoxicated condition.
After reading the incident report, Chapman opined the
deputies’ initial contact was reasonable and justified under
the department’s policy and training, because they were aware
of vehicle burglaries in the neighborhood and saw behavior
consistent with burglarizing the van. Anything in plain sight
the deputies then observed that “approximate[d]” another crime
allowed them to proceed to the next step. Here, the deputies
saw objective symptoms of intoxication in individuals on a public
street and in a car, and under C.M.C. section 4201 that was a
violation of the law. They could proceed to ask the individuals
to get out of the car and to ask questions, and—if they had
7
a reasonable suspicion of a violation—they could arrest the
individuals. No sobriety test or breath or blood tests were
required under C.M.C. section 4201. The deputies’ behavior
was reasonable under department policy.
When recalled to the stand, Billoups testified he had been
trained on the drunk-in-public ordinance, which he had enforced
before, and on intoxication in general. January’s posture—
leaning into the van—was consistent with the burglaries Billoups
had learned about in briefing. When he went to the driver’s side,
he could see Hayes was flushed, his eyes were red, and his breath
smelled of alcohol. He had reviewed and approved Holland’s
incident report, including the notation that plaintiffs were
arrested for “drunk in public” under C.M.C. section 4201.
At the conclusion of their case in chief, plaintiffs moved
for a directed verdict, arguing section 647(f) preempted C.M.C.
section 4201 and, therefore, the Carson ordinance could not
serve as reasonable cause to arrest. Their counsel emphasized
Billoups’s testimony had made clear he arrested plaintiffs for
violating the Carson ordinance, not the Penal Code. The court
responded, “[W]hat it sounds like you are saying is, even if
that was the basis for the arrest, that’s not the basis because
you believe the Penal Code preempted that charge.” Counsel
confirmed that was indeed plaintiffs’ argument.
The court said,
“That would be more persuasive if it was a
criminal case, but this is a civil case. Meaning,
if an officer believed that there was a crime
based on the statutory violation—in this
instance, the Carson Code municipal violation
—even if the court is persuaded that criminally
8
they could not be prosecuted for that particular
charge but for public intoxication based on
Penal Code 647(f), the officer acted in good
faith based on the belief that the Carson
Municipal Code had been violated.”
The court then referred to search warrants and United States
v. Leon (1984) 468 U.S. 897. After hearing from defense counsel,
the court stated,
“Directed verdict is denied because the Carson
Municipal Code is still valid. It is still in the
books. And, basically, the only contested issue
in this case is whether or not Deputy Billoups
had probable cause to arrest these plaintiffs
based on that particular violation of the Carson
City Municipal Code.”
Plaintiffs submitted 12 proposed special jury instructions.
The record on appeal does not include those requested
instructions. From the reporter’s transcript, it appears one
of those requests was that the court give the jurors CALCRIM
No. 2966, setting forth the elements of a violation of section
647(f). The court repeated, “[T]he only issue in this case is
whether or not the deputy had probable cause to arrest based
on the Carson Municipal Code. So why would I allow the Penal
Code? Why would I allow this particular charge to come in
when this is not the charge that the plaintiffs were arrested for?”
The court refused to give any of plaintiffs’ 12 special instructions.
The court gave the jury a special verdict form. The jury
answered “yes” to these questions: “Did Deputy Larry Billoups
arrest [plaintiffs] without a warrant?” and “Did Deputy Billoups
observe each of the Plaintiffs drunk in public in violation of
9
Carson Municipal Code [s]ection 4201 that, if proved, would
constitute reasonable cause to believe each of the Plaintiffs
had committed a crime in Deputy Billoups’s presence?”
The court entered judgment in favor of the sheriff’s department
and Deputy Billoups.
Plaintiffs filed a timely appeal from the judgment. After
oral argument, we ordered the parties to submit letter briefs
under Government Code section 68081, addressing whether
section 647(f)’s preemption of C.M.C. section 4201 meant
the deputies did not have probable cause to arrest plaintiffs
under People v. McNeil (2002) 96 Cal.App.4th 1302.
DISCUSSION
1. Because section 647(f) has preempted C.M.C. section
4201, the trial court erroneously instructed the jury
that a violation of the Carson ordinance, if proved,
would establish reasonable cause to arrest
As the trial court instructed the jury, the elements of
the tort of false arrest are: defendant arrested plaintiffs without
a warrant, plaintiffs were harmed, and defendant’s conduct
was a substantial factor in causing the harm. (City of Newport
Beach v. Sasse (1970) 9 Cal.App.3d 803, 810; CACI No. 1401.)
If plaintiffs prove those elements, defendant has the burden of
persuasion to prove the arrest was justified. (Gillan v. City of
San Marino (2007) 147 Cal.App.4th 1033, 1044 (Gillan).) As the
court also instructed the jury, the arrest is justified if defendant
had reasonable or probable cause to believe that each plaintiff
committed a crime in his presence. (Ibid.; CACI No. 1402.)
The standard is objective, based on the information known to
the arresting officer: “The arresting officer’s actual motivations
10
or beliefs should play no role . . . .” (Gillan, at p. 1045; Levin v.
United Air Lines, Inc. (2008) 158 Cal.App.4th 1002, 1018 (Levin).)
The court gave the jury the following instruction regarding
Billoups’s asserted justification for the arrest: “Deputy Larry
Billoups claims the arrest was not wrongful because he had
the authority to arrest plaintiffs La[S]hun Carcamo, Anthony
January, and Kirby Hales without a warrant. If Deputy
Billoups proves that being drunk in public, in violation of
Carson Municipal Code section 4201, would establish that
Deputy Billoups had reasonable cause to believe that each
of the plaintiffs had committed a crime in his presence, then
Deputy Billoups had the authority to arrest the plaintiffs
without a warrant.”
Plaintiffs contend the instruction misstates the law
because section 647(f) preempted C.M.C. section 4201. “We
review de novo whether a challenged instruction correctly states
the law.” (Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 298
(Bowman).) For the reasons that follow, we agree the instruction
was erroneous.
Carson Municipal Code section 4201 states: “It shall
be unlawful for any intoxicated person, or any person in an
intoxicated condition, willfully to appear, remain or be in or
on any public highway, street, alley, way, park, playground or
public place in the incorporated territory of the City of Carson,
whether such person is or is not in or upon any automobile,
street or interurban car, vehicle or conveyance.” Section 647(f)
of the California Penal Code states that anyone “found in any
public place under the influence of intoxicating liquor . . . in
a condition that they are unable to exercise care for their own
safety or the safety of others, or by reason of being under the
11
influence of intoxicating liquor . . . interferes with or obstructs or
prevents the free use of any street, sidewalk, or other public way”
is guilty of disorderly conduct. The violation of the city ordinance
and the violation of section 647(f) are both misdemeanors.
(People v. Orozco (1968) 266 Cal.App.2d 507, 515, fn. 3.)
In enacting section 647(f), California adopted a general
scheme for the regulation of the criminal aspects of being
intoxicated in a public place, and local legislation has no control
over what state legislation covers. (Koehne, supra, 59 Cal.2d
at pp. 648–649 [Los Angeles ordinance that prohibited “be[ing]
or appear[ing] in a state of drunkenness or intoxication” in any
public place was “in conflict with the state law” and therefore
void]; see also In re Zorn (1963) 59 Cal.2d 650, 651–652 (Zorn)
[same]; People v. Lopez (1963) 59 Cal.2d 653–654 (Lopez)
[affirming dismissal of misdemeanor prosecution under Pomona
ordinance that punished “appear[ing] at or” being “in any public
place” “in a state of drunkenness or intoxication”].) As the
Legislature intended to preempt the field, “a city ordinance
attempting to make certain acts pertaining to intoxication in a
public place criminal is in conflict with the state law and is void.”
(Koehne, at p. 649.) A criminal charge or conviction under such
a preempted municipal ordinance is therefore invalid. (Ibid.;
Lopez at pp. 653–654; Zorn at pp. 651–652; see also People v.
De Young (1964) 228 Cal.App.2d 331, 334–335, 337 [Santa
Barbara ordinance prohibiting being in any public place or on any
private premises in state of intoxication “ ‘to the annoyance of
any other person’ ” was invalid; “Legislative enactments covering
the criminal aspects of intoxication . . . are so extensive in their
scope that they clearly show an intention by the Legislature
to adopt a general scheme for the regulation of the subject.”].)
12
Plaintiffs contend C.M.C. section 4201 is preempted, and
Deputy Billoups did not have reasonable cause to arrest them
under section 647(f) because nothing in the record showed they
were “unable to exercise care for [their] own safety or the
safety of others,” or that they “interfere[d] with or obstruct[ed]
or prevent[ed] the free use of any street, sidewalk, or other public
way” as the state statute—but not C.M.C. section 4201—requires.
We agree there is no evidence the deputies arrested plaintiffs for
violating section 647(f). The deputies themselves admitted this,
insisting Deputy Billoups arrested plaintiffs for violating C.M.C.
section 4201. 3
3 In their Government Code letter, as in their respondents’
brief, defendants assert, “The jury . . . impliedly did find, that
the arrest of appellants had satisfied all elements of Penal Code
section 647(f) under the authority of In re William G. (1980)
107 Cal.App.3d 210, 214.” The sworn testimony of defendants’
own witnesses—most notably defendant Billoups himself—
flatly belies this assertion. As we have said, the trial court
denied plaintiffs’ request that the court instruct the jury on
the elements of a section 647(f) violation and the jury made
no finding on the elements of that crime.
Defendants cite In re William G., supra, 107 Cal.App.3d
210. That case does not assist them. There, a deputy sheriff
saw William G., a juvenile, “walking precariously along a public
road,” “ ‘staggering very badly.’ ” The appellate court noted
the officer had “grounds . . . to conclude [the minor] was unable
to exercise care for his own safety.” (Id. at p. 214.) Here, none
of the arrestees was “walking precariously along a public road.”
Instead, they were sitting in a legally parked van (Hales),
standing on a curb talking with passengers in the van (January),
and sitting in a parked car (Carcamo). Billoups testified Hales
was “slightly . . . off balance” and Carcamo was “swaying” as she
got out of the car. Billoups testified under oath that Carcamo
13
But C.M.C. section 4201 is a void law. In the trio of
1963 cases we have cited, our Supreme Court held any and all
city ordinances criminalizing acts related to public drunkenness
are preempted because they conflict with section 647(f), which
preempted the field. (Koehne, supra, 59 Cal.2d at p. 649;
Zorn, supra, 59 Cal.2d at pp. 651–652; Lopez, supra, 59 Cal.2d
at pp. 653–654.) The arrests of plaintiffs were justified only if
defendants can meet their burden to show the arresting officer
had probable cause, which is objectively reasonable cause
to believe plaintiffs committed a crime. (Gillan, supra, 147
Cal.App.4th at pp. 1044–1045; Roberts v. City of Los Angeles
(1980) 109 Cal.App.3d 625, 629.) “California courts speak
of ‘reasonable cause’ and ‘probable cause’ interchangeably.”
(Cornell v. City and County of San Francisco (2017) 17
Cal.App.5th 766, 786.) Can a law enforcement agency have
objectively reasonable cause to believe plaintiffs committed
a crime if deputies arrest them for violating a statute our
Supreme Court declared void more than half a century ago?
The answer is no.
In People v. McNeil (2002) 96 Cal.App.4th 1302 (McNeil),
Oakland police officers arrested Charnaye McNeil for violating
a city ordinance that prohibited standing in the roadway in a
manner that interferes with traffic. When the officers searched
her, they found a significant amount of cocaine base. McNeil
was charged with possession for sale and moved to set aside
was not a danger or “safety concern” to herself or anyone else,
nor was Hayes. When asked if January was a danger to himself
or anyone else, Billoups answered, “I didn’t have any contact with
January. So I have no idea.” He testified all three plaintiffs were
arrested for violating the ordinance.
14
the information. The trial court granted the motion, ruling the
municipal ordinance was preempted by state law and therefore
void. (Id. at p. 1304.) The arrest and search were unlawful
because “decades-old appellate decisions [held] virtually identical
city ordinances to be void,” a conflicting state Vehicle Code
section preempted the Oakland municipal code section,
and “the officers had no probable cause to arrest defendant
for violating it even if they believed in good faith that the
ordinance was enforceable.” (Id. at p. 1305.)
The McNeil court agreed. The California Supreme Court
had invalidated “essentially identical” ordinances many decades
earlier when it held the Vehicle Code reserved the subject of
pedestrian conduct exclusively to the state, thus preempting
all local ordinances regulating pedestrians. (McNeil, supra,
96 Cal.App.4th at pp. 1306–1307.) Because under long-standing
controlling precedent the Oakland ordinance was unenforceable,
the court distinguished the United States Supreme Court’s
holding in Michigan v. DeFillippo (1979) 443 U.S. 31, 37–38
that the exclusionary rule does not apply to evidence obtained
as a result of an arrest made in good faith reliance on a statute
later found to be unconstitutional. (McNeil, at p. 1305.) That the
controlling precedent did not specifically mention the Oakland
ordinance did not matter. (Id. at p. 1307.) “The relevant case
law did not turn on the particular wording of the local ordinances
in question. It construed the statewide Vehicle Code, holding
that it preempts and super[s]edes all local ordinances purporting
to regulate the same subject matter.” (Ibid.)
McNeil also rejected the contention that the local ordinance
was still in the municipal code at the time of the arrest and so
was presumptively valid from the point of view of the arresting
15
officers, who “could not reasonably be expected to know that tort
cases arising in distant counties had undermined the ordinance’s
legal foundation.” (McNeil, supra, 96 Cal.App.4th at p. 1307.)
“Fourth Amendment jurisprudence does not sanction blind
enforcement of any statute that happens to appear on the
books. . . . [T]he test in Fourth Amendment cases is not the
good faith of the individual officer in the field, but the good faith
of the law enforcement agency of which he or she is a part.”
(Id. at p. 1308.) Forty years was enough time for the police
department to learn that state law preempted the ordinance and
to educate its officers. “That conclusion did not depend on any
fine legal parsing or guesswork, but on the plain language of the
state Vehicle Code, a body of law with which police officers are
expected to be thoroughly conversant. Any possible doubt about
the application of that language to the ordinance in question
was settled decades ago.” (Id. at p. 1309.)
People v. Cox (2008) 168 Cal.App.4th 702 (Cox) agreed.
The defendant was arrested for violating a Sacramento city
ordinance that prohibited walking in the middle of the road
if there was a sidewalk. Like the Oakland ordinance in McNeil,
it was preempted by the state Vehicle Code. The defendant’s
conduct was lawful under the state statute, and so it could not
be the basis for a lawful arrest. (Cox, at pp. 708–709.) The
officer’s good faith belief that the city ordinance was enforceable
did not render the detention objectively reasonable. (Id. at
p. 710.) “[T]he officers here failed to comprehend the California
Vehicle Code, something they are reasonably expected to know.”
(Ibid.) Although the officer believed the local ordinance was good
law, “neither the reasonableness of his belief nor the fact that
16
his belief was held in ‘good faith’ is relevant in establishing
the legality of defendant’s detention.” (Id. at p. 711.) 4
As in McNeil and Cox, the deputies here arrested plaintiffs
for violating a local ordinance essentially identical to ordinances
our Supreme Court invalidated many decades ago because
a conflicting state statute preempted them. The municipal
ordinance remained—and may still remain—in the code. But
even if Deputy Billoups believed C.M.C. section 4201 still was
valid, his good faith belief is irrelevant to our determination of
whether the arrests were legal. 5 The sheriff’s department cannot
4 The Cox court concluded the arrest was illegal but,
because the defendant then made the independent decision
to flee and resist arrest, the taint was dissipated, and the trial
court properly denied his motion to suppress the evidence that
he resisted arrest. (Cox, supra, 168 Cal.App.4th at pp. 711-712.)
5 While any good faith belief on Billoups’s part does not
render plaintiffs’ arrests reasonable or supported by probable
cause, it may be relevant to Billoups’s personal liability for false
arrest. Plaintiffs refer in their briefing to Government Code
section 820.6. It provides, “If a public employee acts in good
faith, without malice, and under the apparent authority of an
enactment that is unconstitutional, invalid, or inapplicable, he is
not liable for an injury caused thereby except to the extent that
he would have been liable had the enactment been constitutional,
valid, and applicable.” (Gov. Code, § 820.6; see generally
Gov. Code, § 820.4 [granting public employees immunity for
nonnegligent acts in executing or enforcing laws but specifically
exempting false arrest and false imprisonment from immunity];
Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 715,
717, 719–721; Gillan, supra, 147 Cal.App.4th at pp. 1048–1049
[Government Code section 820.4 preserved common law rule
that public employee can be liable for false imprisonment].)
It appears there was litigation about governmental immunity
17
meet its burden to show its deputies had probable cause to arrest
plaintiffs by relying on a void statute.
The trial court rejected plaintiffs’ preemption argument
in part because this is a civil rather than a criminal case. But
probable cause for arrest in a criminal proceeding is the same
as probable cause in a civil case for damages alleging false arrest.
In McGowan v. City of San Diego (1989) 208 Cal.App.3d 890(McGowan), McGowan was tried and convicted for driving under
the influence. The municipal court had denied his motion to
suppress on the ground his arrest was unlawful. McGowan then
filed a civil complaint for damages against the city for false arrest
and imprisonment, assault and battery, and violation of his civil
rights (the latter two claims based on excessive force in taking
his blood sample). The trial court granted the city’s motion for
summary judgment, finding collateral estoppel barred the entire
complaint. (Id. at pp. 893–894.)
The McGowan court agreed the denial of the suppression
motion in the criminal case justified summary adjudication
on the false arrest claim in the civil action: “The finding of
probable cause by the municipal court for the stop and arrest
is dispositive of and conclusive on the issue of the false arrest
since the probable cause in the criminal proceeding is identical
to the probable cause required in a later civil complaint.” 6
in the trial court. None of that litigation is before us. The parties
are of course free to litigate any governmental immunity issues
on remand to the trial court.
6 The causes of action based on the continued detention
and the taking of the blood sample survived, however, because
the suppression motion made no findings on those issues.
(McGowan, supra, 208 Cal.App.3d at pp. 895–896.)
18
(McGowan, supra, 208 Cal.App.3d at p. 896; see also Ayers v.
City of Richmond (9th Cir. 1990) 895 F.2d 1267, 1271 [“threshold
issue” in both arrest and later civil rights case was whether
arrests were constitutional]; Levin, supra, 158 Cal.App.4th at
pp. 1017–1018 [discussing reasonable or probable cause in civil
action for false arrest interchangeably with Fourth Amendment
authorities].)
Defendants do not argue we should not follow McNeil
and Cox because probable cause has a different meaning in the
civil context, nor do they explain how McGowan is wrong. They
point out the Vehicle Code contains a section specifically stating
its provisions apply throughout the state, so local authorities
may not enact their own ordinances on matters the code covers.
(Veh. Code, § 21.) And, they say, Penal Code section 647(f) is
silent on preemption. But McNeil relied not on the Vehicle Code
itself, but on Pipoly v. Benson (1942) 20 Cal.2d 366, 372. That
case held local vehicle ordinances were preempted. McNeil
cited what is now Vehicle Code section 21 only as evidence of
the Legislature’s intent to preempt the field. (McNeil, supra,
96 Cal.App.4th at p. 1306.) The holdings in Koehne, Zorn,
and Lopez that the Legislature intended to preempt the field
of regulation of public drunkenness are no less controlling.
A local ordinance of the kind the California Supreme Court
held in 1963 was void as preempted by state law cannot meet
law enforcement’s burden to show probable cause to defeat a
plaintiff’s civil action for false arrest. As defendants insisted
plaintiffs’ arrest was based solely on the preempted ordinance,
the trial court erred when it instructed the jury that, if Billoups
proved plaintiffs were “drunk in public, in violation of Carson
Municipal Code section 4201, [this] would establish that
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Deputy Billoups had reasonable cause to believe that each
of the plaintiffs had committed a crime in his presence, [and]
then Deputy Billoups had the authority to arrest the plaintiffs
without a warrant.”
2. The erroneous instruction was prejudicial
In determining whether instructional error was prejudicial,
a reviewing court evaluates “ ‘(1) the state of the evidence, (2) the
effect of other instructions, (3) the effect of counsel’s arguments,
and (4) any indications by the jury itself that it was misled’ ”
to determine whether it is “reasonably probable” that erroneous
instructions misled the jury. (Red Mountain, LLC. v. Fallbrook
Public Utility Dist. (2006) 143 Cal.App.4th 333, 359; Soule v.
General Motors Corp. (1994) 8 Cal.4th 548, 581, fn. 11; Bowman,
supra, 186 Cal.App.4th at p. 304.) “A ‘reasonable probability’
in this context ‘does not mean more likely than not, but merely
a reasonable chance, more than an abstract possibility.’ ”
(Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 682; College
Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.)
It is reasonably probable in this case that the erroneous
instruction prejudicially affected the jury’s finding that Deputy
Billoups had reasonable cause to arrest plaintiffs. As the trial
court tacitly acknowledged, the evidence was more than sufficient
to establish the elements of false arrest and “the only issue in
[the] case [was] whether or not [Deputy Billoups] had probable
cause to arrest.” Indeed, the jury found, consistent with the
undisputed evidence, that Billoups arrested plaintiffs without
a warrant. For his part, Billoups testified Carcamo was not a
danger to herself or others, she was not blocking any public way,
she did not obstruct traffic when she crossed the street, and,
therefore, he did not arrest her for a violation of section 647(f).
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Instead, Billoups was clear that he arrested plaintiffs for
violating the preempted Carson ordinance. Consistent with
that testimony, the court gave the jury the erroneous instruction,
and the special verdict form asked the jury to decide whether
“Deputy Billoups observe[d] each of the Plaintiffs drunk in public
in violation of Carson Municipal Code [s]ection 4201 [which],
if proved, would constitute reasonable cause to believe each of the
Plaintiffs had committed a crime in Deputy Billoups’s presence?”
Because the instruction and special verdict form afforded
no other basis to find Billoups had reasonable cause to arrest
plaintiffs without a warrant, the erroneous instruction was
plainly prejudicial and the judgment rendered on the jury’s
special verdict findings must be reversed. 7 (See Bowman,
supra, 186 Cal.App.4th at pp. 304–305, 332.)
7 Because we have concluded the instruction erroneously
stated a violation of the preempted Carson ordinance affords
a basis for a reasonable cause finding, we need not address
plaintiffs’ arguments challenging the admission of the defense
expert’s testimony.
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DISPOSITION
The judgment is reversed and the matter is remanded
to the trial court for further proceedings consistent with this
opinion. Plaintiffs are entitled to their costs.
CERTIFIED FOR PUBLICATION
EGERTON, J.
We concur:
LAVIN, Acting P. J.
KALRA, J. ∗
∗
Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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