People v. Kelley12/30/1969
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FOUR
Crim. No. 15438
1969.CA.40009 ; 83 Cal. Rptr. 287; 3 Cal. App. 3d 146
December 30, 1969
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
CARL EDWARD KELLEY, DEFENDANT AND APPELLANT
Superior Court of Los Angeles County, Charles H. Woodmansee, Judge.
Michael R. Palley, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Gordon J. Rose, Deputy Attorney General, for Plaintiff and Respondent.
Opinion by Files, P. J., with Kingsley and Dunn, JJ., concurring.
Files
A jury found defendant guilty of two counts of the offense of battery (Pen. Code, § 242) committed against two peace officers engaged in the performance of their duties. Inasmuch as a battery committed under such circumstances is a felony (Pen. Code, § 243) the court sentenced defendant to state prison. He is appealing from the judgment.
Los Angeles Police Officers Fiderio and Ferrand, the victims of the offenses, testified to the following effect.
At about 6:30 a.m., January 7, 1968, the officers, in uniform, patrolling in a marked police vehicle, drove to 23d Street and Normandie Avenue in response to a radio call "man down in a white Pontiac." They found a white Pontiac standing in the traffic lane of 23d Street next to the center line. The lights were off and the motor was running. Defendant was sitting in the driver's seat, his head resting against the window, apparently asleep. A half-pint whiskey bottle, about four-fifths empty, was lying on the seat. Twenty-third Street is a four-lane street. Another vehicle was parked in the lane between the Pontiac and the curb.
Officer Fiderio knocked on the car window and, when defendant opened his eyes, pointed to his badge and announced he was a police officer. Fiderio then asked defendant to step out. Defendant said he would, but appeared to drift back to sleep. The officers then managed to pull defendant out of the vehicle. Defendant was 29 years of age, 6'3" tall and weighed 210 pounds. Fiderio was 5'8" tall and weighed 145 pounds; Ferrand was 5'8" and weighed between 155 and 160.
Defendant stood facing his vehicle while he was patted for weapons. Officer Fiderio informed defendant he was under arrest for driving a motor vehicle under the influence of alcohol, and "gave him his constitutional rights." Defendant responded, "'I ain't going anywhere,'" and turned around with his right fist cocked alongside the middle of his body. Believing defendant was about to attack him, Fiderio struck defendant with his wooden baton. Ferrand attempted a bar-arm hold under defendant's chin from behind. Defendant kicked at both officers, and then fell over backwards on top of Ferrand, who lost his hold. Defendant arose quickly, and, while Fiderio struck with the baton, defendant kicked him in the groin. As Fiderio doubled over, defendant seized him, threw him to the ground, took his baton and attempted to strike him with it, but Fiderio scrambled away. Then Officer Ferrand struck defendant with a baton and defendant returned the blow. At that point Fiderio drew his revolver and said, "'Stop or I will shoot.'" Defendant was then taken into custody without further violence.
Defendant testified that he was not drunk, although he had consumed "
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