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Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Appellant, v. Robert Lewis GRAHAM, Defendant and Respondent.

Cr. 18426.

Decided: March 08, 1971

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Evelle J. Younger, Dist. Atty., of Los Angeles County, Harry Wood, Head, Appellate Division, Eugene D. Tavris, Deputy Dist. Atty., for appellant. Robert L. Roberson, Los Angeles, for respondent.

Following defendant Robert Graham's preliminary hearing he was bound over to the Superior Court upon the alternative charges of (1) battery upon a peace officer in violation of Penal Code, section 243; (2) assault upon a peace officer by means of force likely to produce great bodily injury in violation of Penal Code, section 245, subdivision (b); and interfering with an officer in the performance of his duties in violation of Penal Code, section 69. The People appeal from the order subsequently made dismissing the information filed herein upon defendant's motion under Penal Code, section 995. The People correctly contend that the Superior Court's expressed disagreement with the controlling law is not an authorized ground for dismissal.

The evidence presented to, and accepted by, the committing magistrate establishes that on December 20, 1969, at 2:30 a.m., Deputy Sheriffs Chester Newman and Robert Webb advised defendant that he was under arrest for violating Penal Code, section 597 proscribing cruelty to animals. Defendant's conduct on the occasion in issue also warranted his arrest on several other charges but inasmuch as the trial court quite properly did not indicate its dissatisfaction with the sufficiency of the evidence to justify defendant's arrest upon the ground stated, we need not extend this decision by detailing the facts that preceded the incident in question.

When the officers sought to effectuate their announced arrest, defendant responded by striking Officer Webb in the face with his right arm driving him backwards several feet. Recovering, the officer again approached defendant who then kicked him ‘in the groin area with his foot’ once more sending the officer staggering backwards. With ‘Job—like’ self-control the officer again approached defendant, neither striking him nor drawing a weapon, and once more his restraint was rewarded by another kick in the groin. Thereupon both officers seized defendant and, after falling to the ground with him as he continued kicking and struggling, they ultimately succeeded in subduing him. Officer Webb's injuries sustained in this encounter were sufficient to require hospital treatment.

Although apparently recognizing the unquestionable sufficiency of the evidence to supply reasonable and probable cause for defendant's commitment on the offenses charged, the court nevertheless dismissed the information for the following expressed reasons:

‘I must admit that this doesn't sound like five years to life to me. It certainly isn't a felony. Have you people over at the District Attorney's office heard of a misdemeanor? * * * I think it should have been filed in the Municipal Court and I am going to throw them out until you learn to file them in the Municipal Court. * * * I hope you take an appeal on it. We have got enough work to do up here. I am not blaming the D.A., but I am blaming the police officers. Part of the job of being a police officer is getting roughed up once in a while when he makes an arrest or he gets into trouble with a party. I am getting sick and tired of these crummy cases that come in here. I hope the word gets around the county as to the way I feel about it. I am not blaming you boys here. They are going downtown to the head office and acting like their life had been endangered. I have a great respect for police officers and I appreciate the tough job that they have, but they can't make felonies out of these junky cases.’ (Emphasis added.)

Ignoring the intemperate and unbecoming nature of the language employed by the court, it is clear that such a cavalier disregard for the consequences of being kicked in the groin could be expressed only by one whose duties had never subjected him to this experience. Moreover, we fail to perceive what charges might legally have been lodged against defendant in the municipal court. If defendant is guilty at all, he is guilty of the offenses against a peace officer as charged; these are offenses that our Legislature has seen fit to proscribe either as felonies or as alternative felony-misdemeanors dependent upon the sentence ultimately imposed.

Of course, the trial court's recognition that a policeman's lot is not a happy one is neither a novel observation nor a basis for depriving our officers of the law's protection. It is only too easy for those not afflicted to endure with stoic indifference the sufferings of others. As noted in Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889, fn. 21:

‘Fifty-seven law enforcement officers were killed in the line of duty in this country in 1966, bringing the total to 335 for the seven-year period beginning with 1960. Also in 1966, there were 23,851 assaults on police officers, 9,113 of which resulted in injuries to the policemen.’

It is tragically true that ‘part of the job of being a police officer’ includes assuming the risk of being killed, maimed, or ‘roughed up once in a while’ in the line of duty, but this most regrettable fact should never serve as a reason for granting judicial immunity to those who perpetrate such wrongs. Certainly no judicial officer should ever presume to set himself above the law and attempt to deny its protective aegis to those very men whom society has selected to enforce its provisions. There is not, and we trust that there will never be, an ‘open season’ on peace officers.

The order under review is reversed.