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

Cynthia MUNOZ, Individually and as guardian ad litem for Tracie Munoz and Kristie Munoz, minors, Plaintiffs and Respondents, v. Derek OLIN, Gerald D. Halstead, and City of Los Angeles, Defendants and Appellants.

Civ. 50451.

Decided: December 20, 1977

Manuel Lopez, Los Angeles, and Fielder & Fielder, North Hollywood, for plaintiffs and respondents. Burt Pines, City Atty., John T. Neville, Senior Asst. City Atty., Daniel U. Smith, Deputy City Atty., for defendants and appellants.

In the early morning hours of May 19, 1973, Derek Olin, an arson investigator for the Los Angeles City Fire Department, shot and killed William Munoz, a 20 year old man. The latter's widow on behalf of herself and two children filed a wrongful death action against Olin, his partner Gerald Halstead and the City of Los Angeles. (Since the liability, if any, of the three defendants rests on the actions of Olin we will refer throughout to defendant in the singular except where otherwise indicated.)

The case went to a jury trial on a theory which was a mixture of intentional tort and comparative negligence. Basing its finding of liability on negligence and after reducing the award by 35% because of Munoz' own negligence, the jury returned a verdict in favor of plaintiffs for $336,000. The defendant appeals from the judgment entered on the verdict contending, among other things, that the evidence was insufficient to support the judgment and that the trial judge misinstructed the jury. We reverse.

Because of the rather unique nature of the evidence we will, after describing the locale of the incident, set forth the facts in two parts, (1) the plaintiff's evidence, and (2) the defendant's evidence.


The incident occurred in an area near the intersection of Alhambra and Warwick in the eastern part of Los Angeles. Alhambra is a lighted four-lane thoroughfare which runs generally east and west. Along the south side of the street are a number of commercial buildings housing various small businesses. A few houses are interspersed with the commercial establishments.

Behind the buildings which front on Alhambra there is a 20 foot wide alley which parallels Alhambra. Most of the buildings have common walls. There are, however, two or three passages or walkways which, although fenced along the alley, permit access from the alley to Alhambra Street. It is approximately 100 feet from the alley to Alhambra.

One of these passages runs alongside the building in which Munoz and his wife resided. One of the businesses located in the area at the time in question was the Royal Upholstery Co. at 5444 Alhambra Avenue. The latter location was about 200 feet east of Munoz' residence. Along the alley at the rear of the different businesses there were various doors providing access to the alley and the alley contained the usual trash receptacles. The alley was illuminated by lights on the rear of the buildings.


William Munoz and his wife, Cynthia, resided in a small house behind a grocery store at 54221/2 Alhambra Avenue.1 Cynthia's parents, Mr. and Mrs. Lee, owned the grocery store and they resided in an apartment at the rear thereof.

During the evening of May 18, 1973, at about 7:00 or 8:00 p. m., Cynthia dropped William off at the home of a friend, one Alex Sanchez, on Compton Avenue, which too is located in the general neighborhood. William remained there until about 9:30 p. m. when he was driven by his brother to his parents' home. He remained there until about 1:00 a. m., when he again returned to the Sanchez' residence, leaving the latter location to go home at about 2:30 a. m.

Munoz walked with another friend, one Carrera, to the corner of Warwick and Alhambra where Carrera lived. The walk took about five minutes. The two then separated and Munoz walked south on Warwick to the alley, turned west and proceeded into the alley. At that point he was about 500 feet from his residence. In traversing that distance he would have passed the rear of the Royal Upholstery Company.

Cynthia testified that at some time thereafter she was dozing on the divan in her home and was awakened by Munoz tapping on the window and calling her name. This, according to Cynthia, was usual because Munoz did not carry a key to the residence. As she got up and walked through the livingroom into the kitchen to open the door she heard five or more shots fired.

About five minutes later she went to her parents' home to find out what had happened. She walked through the market to where she could see out on Alhambra Avenue and saw her husband's body lying in the street.

The parents, who were awakened, testified they heard more than four or five shots. Other neighbors heard several shots. Various of plaintiff's witnesses testified that they saw no indication of a fire nor heard any siren in the neighborhood that morning although they did see fire engines arrive. The loading door at the rear of the Royal Upholstery shop had been burned in the past. Fires had occurred in the neighborhood both before and after May 1973.

Two young men, who were driving east on Alhambra, ran over Munoz' body without seeing it. They were only made aware of its presence by the bump that it occasioned. They had not seen any activity along the street prior to that.

Cynthia produced a watch which was taken from her husband's body. It was broken and stopped at 2:42.


Defendants Halstead and Olin were arson investigators for the Los Angeles City Fire Department and in that capacity they enjoyed the status of “ peace officer,” although their basic employment was in the fire service. (Pen.Code, s 830.3, subd. (k).)

The location involved here was within the area served by Fire Station 16 which is located at Valley and Eastern, about a mile west of the Munoz' residence. Station 16 had reported a number of fires occurring in the area which appeared to have been deliberately set and which had a pattern as to time and place.

One of these fires had occurred at 5470 Alhambra Avenue. These fires all occurred around 3:00 a. m. on days in late April and early May. All involved the use of scrap wood to start them.

Additionally, two automobiles had been set on fire in the alley in early April. The defendants had information that these latter two fires had been started by the ex-partner of the proprietor of the Royal Upholstery Company and the cars had belonged to the latter. The ex-partner was reported to be armed and dangerous.

On the morning in question at about 2:30 a. m., Halstead and Olin took up a position in the alley behind 5470 Alhambra Avenue, which is at the southeast corner of Warwick and the alley. They were seated in an unmarked car from which they had a view of the alley to the west.

After the elapse of about 15 minutes they observed Munoz walk south on Warwick and turn west into the alley. He walked to the rear of 5444 Alhambra, which was the Royal Upholstery Company, located about 300 feet from the defendants' point of observation.

They next observed Munoz pick up a bundle of material of a dimension of about two feet by three feet from a large trash receptacle, place the material against the rear portion of the Royal Upholstery Company and ignite it. The flames quickly reached a height of two to three feet.

Olin radioed a report of the fire to Station 16. Halstead activated the headlights of the vehicle and the siren and drove forward rapidly toward Munoz. Munoz commenced to run. Defendants pulled alongside of Munoz and yelled to him that they were police officers and ordered him to stop. Munoz ignored their commands and continued to run.

Halstead, who was the driver of the vehicle, headed the car into a wall to his right attempting to trap Munoz, but the latter slipped between the fender and the wall and ran up the walkway alongside the Munoz residence. Olin exited the vehicle with his gun drawn while Halstead drove the vehicle around to the front of the buildings on Alhambra to head off Munoz in case he ran to that location.

Olin continued to chase Munoz shouting “Halt, Police.” When Munoz again ignored the command Olin fired a warning shot over Munoz' head. Munoz stopped in a small courtyard, turned and made a flinging motion with his arms. Olin said, “Stand still, don't move.”

Munoz, however, turned and ran toward a gate which led to Alhambra. He climbed the gate and Olin fired two more shots. Munoz went over the gate and out of sight. Olin climbed the gate and continued to Alhambra where he observed the body in the street. He observed the car run over the body.

The captain in charge of Fire Station 16, who was called as plaintiff's witness, testified that four fire units responded to Olin's radio report at 2:54 a. m., observed the fire burning at the rear of the Royal Upholstery Company. The fire had burned through and up the height of the rear door and was impinging on the ceiling of the building. The firemen from Station 16 put out the fire.


From the meshing of the parties' evidence certain facts emerge as undisputed. There had previously been considerable arson activity in the alley and area involved. The two arson investigators were there seeking to apprehend an arsonist.

Munoz, when walking westerly in the alley on the morning of May 19, was at one point at the rear of the Royal Upholstery Company. He did proceed from that point to the walkway to Alhambra Avenue. He was shot by defendant Olin at a point along that walkway and he fell mortally wounded in the street near where the walkway exited on Alhambra. Olin made a report of a fire and fire engines responded.

Contrary to plaintiff's assertion on appeal, there was no real dispute in the evidence as to whether a fire did in fact occur at the Royal Upholstery Company that morning.

Plaintiff's contention that there was no fire is based upon statements by some of her witnesses that they did not see any fire. These witnesses, however, did not testify that they looked for any fire nor were they in a position to have seen it if it occurred. Understandably most of plaintiff's witnesses were attracted to the front part of the buildings where Munoz' body was found.

Both Mr. and Mrs. Lee, Cynthia's parents, testified that they did not go into the alley that night but instead remained in the front part of the store. Mrs. Lee testified that the following morning she observed that the loading door at the Royal Upholstery Company had been burned through.

Mrs. Lee further testified that she had been vaguely aware of a fire in the alley possibly some six months previously. She did not know just what had been burned.

Pictures of the door taken shortly after the incident and offered by defendant showed that the loading door had been burned completely through so that the interior framing was exposed and that the interior of the building was visible through the opening. Pictures of the door offered by plaintiff were taken on May 25, 1973, or six days later. They showed the burned area had been recently patched over by a new unpainted plywood panel. This alone would negate any inference that the damage to the door had occurred some six months prior thereto, an inference plaintiff attempts to draw from Mrs. Lee's testimony.

Finally, as noted, plaintiff's own witness, the captain of Fire Station 16, testified to the fire as it occurred on the morning of May 19, 1973, and although plaintiff called two experts who carefully examined the alley and the buildings for bullet holes and signs of ricochet, she produced no expert evidence to dispute the captain's testimony.

Negative testimony of witnesses to the effect that they simply did not see the fire, because they were not in a location from which they could have seen it, was legally inadequate to support any finding that the fire did not occur.

Finally it must be observed that the jury's finding that Munoz, the deceased, was 35% responsible for the result could only have been based on the finding that he was the individual who ran from the area of the fire to the place where he was shot. If, as plaintiff contends, Munoz at the time he was shot, was simply standing by the window of his house calmly seeking entrance, the jury could not have possibly found him to be culpable in any degree.


The trial court's instructions to the jury were a curious mixture of the rules applicable to both intentional tort and negligence. Under the facts of this case the doctrine of ordinary negligence and comparative negligence were inapplicable.

Negligence is conduct and not a state of mind. The negligent individual does not desire the consequences but simply acts in a manner which creates the risk of such consequences. Knowledge or awareness of the risk is not the equivalent of intent. (Prosser on Torts (4th ed.) pp. 32, 145.)

In the case at bench Olin admittedly intended to shoot the deceased. He claims that his actions were justified. The tort, if any, was the intentional tort of battery. The principles of negligence and comparative negligence had no place in the instructions. (Jones v. Shears, 143 Cal.App.2d 360, 299 P.2d 986; Lowry v. Standard Oil Co., 63 Cal.App.2d 1, 146 P.2d 57.)

The Restatement of Torts casts this type of case in terms of intentional tort and privilege. (See Rest., 2d Torts, §§ 13, 118.) The conditions of the privilege are the authority to make a valid arrest and the absence of excessive force in attempting to accomplish the arrest. (Rest., 2d Torts, §§ 121, 133.)

A peace officer, insofar as is relevant here, may arrest without a warrant (1) whenever he has reasonable cause to believe the person to be arrested has committed a public offense in his presence, or (2) when he has reasonable cause to believe that the person to be arrested has committed a felony, whether or not a felony has in fact been committed. Such an arrest may be made in the day or night. (Pen.Code, §§ 836, 840.)

Use of deadly force is justifiable when necessarily committed in arresting suspected felons who are fleeing from or resisting arrest. (Pen.Code, § 196, subd. (3).) Case law has modified the broad sweep of that statute by declaring that the necessity for using deadly force does not exist unless the felony of which proposed arrestee is suspected is of a violent nature and one which perils human life. (People v. Ceballos, 12 Cal.3d 470, 116 Cal.Rptr. 233, 526 P.2d 241; People v. Piorkowski, 41 Cal.App.3d 324, 115 Cal.Rptr. 830.)

People v. Ceballos, supra, involved the situation where defendant set a “trap gun” to protect his garage from unlawful entry. The gun wounded an unarmed 16 year old boy who attempted to enter the garage in the daylight hours. People v. Piorkowski, supra, involved a shooting of a fleeing unarmed burglar who had stolen a wallet and a dollar bill from a commercial establishment during daylight hours. Neither of these cases approximates the facts of this case.

In Long Beach Police Officers Assn. v. City of Long Beach, 61 Cal.App.3d 364, 132 Cal.Rptr. 348, members of the Long Beach Police Department challenged the city's authority to prescribe limitations on the use of a firearm by police officers in the city, which regulation modified the literal language of Penal Code section 196. Division Five of this court in upholding the city's authority observed that the regulations were consistent with case law modification and that the regulation in question was drawn from the ALI's Model Penal Code section 3.07.

That section provides that the actor may use deadly force when he believes that (1) “ ‘the crime for which the arrest is made involved conduct including the use or threatened use of deadly force; or (2) there is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed.’ ” (Long Beach, supra, at p. 375, 132 Cal.Rptr. at p. 354.)

Arson has traditionally been considered a violent, life-endangering crime. (R. Perkins, Perkins on Criminal Law 983 2d ed. 1969.) It is one of the felonies enumerated in Penal Code section 189, which fixes at first degree a murder committed in their perpetration. The willful burning of a shop, factory or other commercial type building is a felony. (Pen.Code, § 448a.) Penal Code section 448a is contained in the chapter entitled “Arson” and it has been held that a violation of that section is arson within the meaning of that term as used in Penal Code section 189. (In re Bramble, 31 Cal.2d 43, 187 P.2d 411; People v. Chavez, 50 Cal.2d 778, 329 P.2d 907.)

Setting fire to a commercial building at night in a mixed commercial and residential neighborhood in close proximity to persons such as is the case here, does imperil human life and constitutes the type of crime for which deadly force may be used in apprehending the perpetrator.

The buildings here were rather old. They were close together, many with common walls. The potential for a fast spreading conflagration and its attendant danger was very real.

Plaintiff, in support of the judgment, argues first that the burning of an apparently unoccupied commercial building does not threaten bodily harm. This argument as we have already indicated overlooks the potential for injuries to persons which, because of the nature and location of the buildings, existed here and further ignores the danger to firemen who must respond and fight the fire.

Next plaintiff contends that because Munoz was fleeing rather than resisting or threatening the defendants, he posed no threat or danger to anyone. This contention is contrary to the very criteria upon which plaintiff so heavily relies. (Long Beach Police Officers Assn. v. City of Long Beach, supra.) That criteria as stated is in the disjunctive one part stating that deadly force may be used where delay in apprehension would create a substantial threat of death or serious bodily harm. The escape of an unidentified arsonist raises the possibility that he might in the future be successful in starting a more serious fire, and thus creates a substantial threat of bodily harm.

Thus, if defendant had reasonable cause to believe that Munoz had committed arson he would have been justified in attempting to arrest him and to use deadly force if necessary to prevent his escape. If he did not have reasonable cause to so believe, then his actions were not justified. In other words, the privilege either existed or it did not.

If Munoz' actions gave rise to the reasonable cause to arrest and to believe it was necessary to employ deadly force to effect that arrest then there was no liability, and if his actions did not there was full liability and there would be no room for the operation of the concept of comparative fault. The doctrine of comparative negligence (Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226) was adopted as a substitute for the all or nothing rule of contributory negligence previously followed in this state, it was not a substitute for the defense of privilege to commit an intentional tort. The jury's verdict which found Munoz 35% responsible is fatally inconsistent with a finding of liability in the defendant.

We turn now to the issue of the burden of proof and the sufficiency of the evidence. The crucial question was, as we have indicated, whether the defendant had reasonable cause to believe that Munoz was a fleeing arsonist.

Plaintiff had the burden of proof throughout the case as to her allegations of wrongful death. (Evid.Code, § 500, Witkin, Cal.Evidence (2d ed. 1966) Burden of Proof and Presumptions, §§ 194-197, pp. 178-181.) How that burden is to be carried is not totally resolved by the cases. There is a split of authority in the United States as to whether plaintiff in such a case must prove the wrongfulness to the point of negating justification. (43 Cal.L.Rev., pp. 119-124, Evidence: Wrongful Death: Self-Defense: Burden of Proof, by Robert S. Daggett.)

Inherent in plaintiff's theory of liability is that defendant was guilty of conduct which would at least amount to the crime of manslaughter (Pen.Code, § 192) and Evidence Code section 520 provides that the party claiming that a person is guilty of crime has the burden of proof on that issue. In other words, the presumption of innocence obtains in civil cases as well as criminal. (Guidera v. Lapiana, 52 Cal.App. 460, 199 P. 557; Witkin, Cal.Evidence (2d ed. 1966) Burden of Proof and Presumptions, § 199, pp. 183-184.)

On the other hand there is no presumption that the intentional infliction of bodily injury is justified. (Marriott v. Williams, 152 Cal. 705, 93 P. 875; Hardy v. Schirmer, 163 Cal. 272, 124 P. 993.) Penal Code section 1105 states that in prosecutions for murder, upon proof that the defendant committed a homicide, the burden of establishing mitigation or justification devolves on the defendant. That burden has been described as one of producing evidence sufficient to create a reasonable doubt. The burden of proving the defendant's guilt beyond a reasonable doubt remains with the prosecution.

We conclude that in the present case plaintiff initially carried her burden by establishing that Olin intentionally shot and killed the deceased. The burden of going forward and producing evidence of justification then devolved on the defendant. Since the burden of proof in a civil case is to prove an affirmative by the preponderance of the evidence, it follows that defendant's burden was to produce evidence which would at least balance that offered by plaintiff.

It is readily apparent that Munoz was also entitled to the presumption of innocence as represented by Evidence Code section 520. The effect of that presumption is not as beneficial to Munoz, however, as to the defendant since defendant's burden was to produce evidence of his reasonable belief that Munoz was an arsonist and not that Munoz was in fact an arsonist.

Defendant carried his burden by producing evidence that he saw Munoz set the fire at the Royal Upholstery Company and then flee upon becoming aware of his presence and their attempt to arrest him.

Plaintiff then countered this claim of privilege and justification with the opinion of an expert on two matters. The expert testified that in his opinion more shots were fired than the three claimed by Olin and that from the expert's reconstruction of trajectory, Olin had to be closer to the deceased when the shots were fired than the position in which he claimed to be. These opinions were controverted by an expert for defendant plus the testimony of the investigating police officer that when he examined the guns of both Halstead and Olin there were just three expended shells in Olin's gun and none in Halstead's gun.

The fact that the jury may have disbelieved defendant's testimony as to his exact location at the time he fired the fatal shots or even the number of shots fired did not create affirmative evidence that he lacked reasonable cause to believe that Munoz was a fleeing arsonist. (Oldenburg v. Sears, Roebuck & Co., 152 Cal.App.2d 733, 314 P.2d 33.) In view of the jury's finding that Munoz was 35% responsible for the consequences, we cannot assume that the jury, on the basis of the testimony of plaintiff's expert witness, disbelieved the entire testimony of Olin and Halstead. Plaintiff's own evidence established that a fire was set at the Royal Upholstery Company at a time when Munoz was in the alley in close proximity thereto.

The verdict appears to have been the result of the error in the instructions. That the trial court misconceived the law applicable to the case is evidenced by the giving of instructions on negligence and comparative negligence and by refusing certain of defendant's proffered instructions. Notes which the trial court made on three of the refused defense instructions gives further indication of this misconception.

On an instruction defining reasonable or probable cause to arrest the court in refusing to give the instruction noted “not applicable, victim was not arrested.” On another instruction based on Penal Code section 836, subdivisions (1) and (3) (arrest by peace officer without a warrant) the court in refusing to give that instruction noted “not applicable, arrest with or without a warrant not an issue in the case.” (Emphasis added.) On yet another instruction on the use of force by a peace officer in making an arrest the court noted “defendant is not a police officer.”

In summary, the case involved the issues of intentional tort and privilege. The defense of privilege was based upon the authority of a peace officer to use deadly force when necessary to apprehend and arrest a person who had committed a deadly felony. Defendant, who was a peace officer, was entitled to have the jury correctly instructed on the applicable principles of law. It appears that under proper instructions a different result was probable and that the error resulted in a miscarriage of justice. (Cal.Const., Art. VI, § 13.)

In view of our disposition of this matter we need not discuss defendant's other claims of error.

The judgment is reversed and the case remanded for a new trial.


1.  The defendants disputed the fact that Cynthia and William were actually living together and attempted to show that they were in fact separated but we recite the evidence in the light most favorable to the plaintiffs.

COMPTON, Associate Justice.

FLEMING, Acting P. J., and BEACH, J., concur.