People v. Perkins

Opinion

GARGANO, J.

Defendant was convicted of two counts, I and III, of battery on a police officer in violation of section 242 and 243 of the Penal Code. He was also convicted of a battery committed on his wife, count IV. Counts I and III were merged pursuant to section 654 of the Penal Code, and with regard to these counts defendant was sentenced to state prison for the term prescribed by law. As to count IV, defendant was sentenced to the county jail for a period of six months, the term to run concurrently with the sentence imposed on counts I and HI. Defendant has appealed.

On September 1, 1968, appellant and his wife, Teresa, while attending a drive-in mdvie with another couple, became involved in a family argument. After they returned to their apartment, the argument resumed and defendant struck his wife several times. Teresa went into the kitchen, pulled a butcher knife from a drawer and threw it at appellant. Appellant called the police.

[1050]

About five minutes later, Deputies Benson, Crawshaw and Paugh of the Stanislaus County sheriff’s office arrived at the apartment and found appellant outside. Benson asked appellant not to leave and proceeded to talk with appellant’s wife, who was also outside. The officer noticed that Mrs. Perkins’ eye was black and blue and cut and puffed out; he asked her to sign a citizen’s arrest document, which she did. Then, appellant’s wife and the three deputies followed appellant, who had gone into the house, and informed him that he was under arrest and asked him to come peaceably.

At this point the respondent’s and appellant’s versions as to what occurred differ sharply. According to respondent, after appellant was informed of the citizen’s arrest, he told the officers that they could not arrest him without a warrant and that if they tried to take him there would be trouble; he said the town would bum down before morning “just like Watts.” Then, he retreated into the bedroom and challenged the officers to “come and get me.” Deputy Paugh got on top of the bed and tried to get in between the night stand and appellant. Appellant swung at Deputy Paugh but missed him. Deputy Benson took a step toward appellant but was struck on the chest by the side of defendant’s hand and knocked against the wall. Benson then hit defendant on the head with a pocket sap. Appellant lunged at Deputy Crawshaw, and the two men rolled into the living room. After a brief struggle, appellant was subdued and placed under arrest.