Opinion
NOT TO BE PUBLISHED
Sup. Ct. No. 05AS01501
MORRISON, J.
The California Highway Patrol (CHP) arrested Julieanne Shull for conspiring to demonstrate without a permit, based on her apparent actions in concert with a “tree sitter” in Capitol Park. She was taken to the Sacramento County Jail where deputies allegedly abused her. Shull sued the CHP and Sacramento County and their employees on a number of theories. The trial court (Balonon, J.) denied her summary judgment motion and granted the CHP’s summary judgment motion and Shull timely appealed as to the CHP defendants.
At trial against the Sacramento County defendants, Shull won a jury verdict. When the trial court (Hersher, J.) denied her motion for attorney fees, she filed another appeal, still pending. (Shull v. Sacramento County, C056456.)
We shall affirm summary judgment in favor of the CHP defendants because the undisputed facts show that the CHP officers had probable cause to arrest Shull, they were under no obligation to cite her and release her, instead of transporting her to jail, and her subsidiary claims lack merit.
I. Standard of Review
In reviewing summary judgment motions we normally apply a three-step test in which we first describe the pleadings to determine the relevant issues, then determine whether the movant showed a prima facie case—meaning the opponent cannot prove a necessary element or that all the elements of a defense exist— and finally determine whether the opposition raises triable factual issues. (Lackner v. North (2006) 135 Cal.App.4th 1188, 1196 (Lackner); Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 229.) We construe the movant’s evidence narrowly and the opponent’s evidence broadly. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
Because Shull, as the appellant, must show reversible error, we limit our review to issues properly presented. (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116.)
In this case both parties moved for summary judgment and in part cross-incorporated their papers, leading the trial court to address the two motions as an omnibus motion. In view of this procedure we will slightly modify the normal three-step test. We will first describe the pleadings. Then we will describe the CHP’s undisputed facts and the disputes to those facts raised by Shull, as well as the facts she raised in her motion. Then we will examine each of Shull’s legal claims to determine if any triable issue of fact remains, whether raised in opposition to the CHP’s motion or raised in Shull’s motion.
II. The Trial Court Papers
A. Pleadings
The complaint confuses causes of action with legal theories and remedies and packs multiple theories into captioned claims, all of which makes it less understandable. (See Uhrich v. State Farm Fire & Cas. Co. (2003) 109 Cal.App.4th 598, 605; Smyth v. USAA Property & Casualty Ins. Co. (1992) 5 Cal.App.4th 1470, 1473.)
The complaint names as defendants CHP employees Mark [sic] Shaw, James Mann, and Greg Daniels. On appeal Shull does not contest the dismissal of other employees, though in her summary judgment papers she moved to substitute Dave Wilson and Doug Lyons as Doe defendants. It is not clear from the record on appeal whether her substitution motion was granted.
The complaint states that on February 5, 2004, Shull’s “acquaintance” climbed a tree in Capitol Park, “and unfurled a banner [] to draw attention to legislation that would protect California’s last remaining old growth forests and habitat. The demonstration drew the attention of media, police, fire officials, and members of the public.”
Shull videotaped “the protest, fielded some inquiries from press, police, and members of the public, and provided some police and media with the cell phone number of the man in the tree so they could communicate directly with him.”
In purported “retaliation for her exercise of free expression,” the CHP falsely arrested her “on charges of felony conspiracy to commit misdemeanor(s)—to wit, the ‘crimes’ of demonstrating without a permit and trespass carried out not by her, but by the man in the tree.”
Shull was “rendered” to “personnel in the [Sacramento County Jail], who strip-searched her, assaulted and injured her, and then held her for approximately five days, . . . until a court mercifully set her free.”
Shull’s first claim (false arrest and imprisonment), as to the CHP alleges she was falsely arrested “and falsely imprisoned in County Jail,” and the CHP wrongfully failed “to cite and release” her. It also alleges “unreasonable conditions” of detention, but only as to Sacramento County.
Her third claim (retaliation and abuse of process) alleges the above wrongful acts were done in order to retaliate against Shull for exercising her expressive rights.
Her sixth claim (Bane Act) alleges the above acts were based on “threats, intimidation and coercion.”
Her seventh claim (infliction of emotional distress) alleged the above acts were outrageous, “including without limitation” “the strip search” and the “unnecessarily long pre-arraignment imprisonment of her.”
Her tenth claim (negligence) included allegations of improper training, resulting in the above acts.
Although not stated as a separate claim, the complaint also alleged entitlement to injunctive relief.
In the trial court Shull conceded her second claim (strip-searching) as to the CHP, and conceded that her eleventh claim (respondeat superior) is merely “a theory of liability[.]” On appeal, she has abandoned her fourth (religious freedom), fifth (trespass to chattels), eighth (failure to intervene), and ninth (conspiracy) claims.
Shull failed to include the CHP’s answer in the record, thus violating her duty, as the appellant, to provide an appropriate record. (See Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043, 1051, fn. 9.) The answer is a critical document because the first step of any summary judgment analysis is to define the pleaded issues. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.) However, in this case we will overlook this problem and assume the CHP denied Shull’s allegations and pleaded appropriate defenses.
B. Facts from the CHP’s Motion
The following facts were not disputed except as noted:
On February 5, 2004, a man named Lewis (sometimes referred to as “Bear,” or as Wessel Patrick Lewis in the record) climbed a tree in Capitol Park. CHP Officer Mann saw Shull videotaping “and communicating with the male suspect in the tree, using ‘hooting’ and other non-verbal sounds,” and speaking to the media; he also heard Shull “tell the media that she had driven down with the male suspect from Arcata, California.” Shull disputed that she told Mann that she was “not with” Lewis, but conceded that she communicated with Lewis “with ‘hooting’ and ‘chirping’ sounds,” videotaped the tree and gave Lewis’s cell number to the media; she also conceded that Mann knew she had driven with Lewis from Arcata that day.
In her dispute to the claimed fact that she told Officer Mann that she was not “with” Lewis, Shull asserted in part:
“[D]efendants acknowledge that plaintiff informed defendant [CHP] Officer Teel that Mr. Lewis had a cell phone with him; that she knew the man in the tree as ‘Bear’; that he was her friend and had positioned himself there in protest; and that she shouted up to him ‘[t]hey are calling you on your phone!’”
Thus, although Shull disputed that she misled the CHP about her relationship with “Bear,” she confirmed she knew him well enough to use bird calls to communicate with him, knew his cell number, and helped him communicate with the media.
Shull conceded that State Capitol groundskeepers “observed [Shull] help Lewis by passing a duffel bag to him in the tree.” She also conceded that the groundskeepers told the CHP that she “had helped Lewis in the tree by passing him his personal property[,]” but raised a discovery claim, not relevant now, and disputed the implication that she had been seen helping Lewis get into the tree.
Shull did not dispute that she and Lewis had been seen by a grounds keeper as they “walked around Capitol Park together . . . looking at trees,” but she alleged Capitol Park was a place designed for people to look at trees and disputed the implication that she had been casing the park with Lewis to find a suitable tree for him to climb.
The CHP alleged Shull was arrested for a misdemeanor conspiracy charge and Shull did not dispute this.
C. Facts from Shull’s Motion
Shull’s statement of purported undisputed facts was explicitly designed to establish two things: First, “Defendants falsely subjected Ms. Shull to custodial arrest, in violation of plainly settled California law which requires them to have cited and released her,” and second, “Defendants lacked probable cause to arrest Ms. Shull, who broke no laws, and was engaged in protected First Amendment activity at the time of her arrest.”
The CHP did not warn Shull before arresting her and after the arrest “obtained proof” of her identity from her Washington driver’s license. She did not struggle or resist arrest. The CHP did not cite and release her because it thought she would continue the offense if released.
The CHP disputed whether Shull falsely told officers she “‘was not with Bear.’”
Shull tendered the following fact and later alleged that CHP Officer Mann saw this behavior when he “arrived on the scene” at about 2:37 that afternoon:
“Ms. Shull supported Bear by taking video and still photos of the scene, explaining to observers and members of the media why he was in the tree, handing out literature, providing Bear’s cell phone number in the tree to the media, and communicating with him verbally, including by periodically asking if he was OK and responding to his bird calls.”
Shull alleged she did not trespass and “remained behind the yellow caution tape which the C.H.P. strung up[,]” and the only dispute raised by the CHP was that although Shull did not personally trespass, she helped Lewis to trespass by helping him get his belongings into the tree.
Shull was peacefully arrested at 4:23 p.m. on the orders of CHP Deputy Chief Wilson. Officer Daniels took her “to the [CHP] station . . . rather than citing and releasing her in the field, or transporting her directly to the County Jail,” and she was kept at the CHP station “for approximately five hours” before she was taken to the Sacramento County Jail.
In particular, Shull alleged: “The C.H.P. (Officer Lyons) detained Ms Shull at the [CHP Station] for approximately five hours before causing her to be transported to County Jail.” The CHP’s dispute was narrow: “Officer Lyons ‘watched’ plaintiff while she was being detained and he did not ‘cause’ her to be transported to the County Jail.”
Shull’s supporting evidence regarding her detention by the CHP merely showed the time she was arrested (“1623”) and the time she was booked into the jail (“21:40”), about five hours later. It did not discuss the circumstances of her detention. In support of a related undisputed fact, Shull cited evidence (the arrest report and discovery responses), showing that after her arrest Officer Daniels was ordered to take her to the CHP station, where Officer Lyons “was charged with watching her and making sure that all of her needs were met.”
Shull’s declaration describes her confinement by the CHP before she was taken to the Sacramento County Jail. Although this portion of her declaration is not tied to any of the undisputed facts, we include it for completeness. Shull was taken to a “briefing room,” where a television was turned on, showing “news coverage of Bear in the tree.” Shull was kept in handcuffs and repeatedly asked that they be taken off or loosened. “At one point, to try to get some relief from the uncomfortable handcuffing, I put my feet up on another chair and leaned back. But [Officer Lyons] took the chair away from me and made me put my feet back down, still without loosening or removing the handcuffs. The only time I was not in handcuffs at the station was when I asked to go to the bathroom, and a very nice officer escorted me there, removed my handcuffs, and waited outside the bathroom. I was then re-handcuffed and returned to the briefing room.” Officers went through her property in front of her, making notes, and asked her for her address, which she gave, and her Social Security Number, which she did not give. When an officer asked what had happened, Shull invoked her rights to silence and counsel.
A number of other facts tendered by Shull are not linked to the knowledge of the officers, such as how she and Bear spent the day before he climbed the tree. Because, as we shall explain, we must look at what the officers knew at the time of the arrest, we omit these facts. Shull also makes reference to a purported fact from her deposition, but this court previously denied her request for judicial notice of that document.
D. Trial Court Ruling
The trial court found the arrest was lawful because facts known to the officers showed probable cause to arrest Shull “for misdemeanor violation of Penal Code section 182(a), conspiracy to commit a misdemeanor—protesting in Capitol [Park] without a permit.” Other facts tendered by Shull that tended to negate probable cause, such as the claimed fact that she objected to Bear’s conduct and tried to dissuade him, were not known to the officers at the time of arrest.
The trial court impliedly viewed the decision not to cite Shull and release her as unreviewable, because the officers identified a statutory exception to that procedure.
The trial court concluded there was no civil action for the violation of expressive rights identified by Shull’s complaint, under existing precedent. The trial court found no triable issue of fact as to trespass to chattels, and Shull does not contest that ruling on appeal.
The trial court concluded that Shull’s other claims hinged on an unlawful arrest or detention and therefore also fell. Shull timely appealed.
III. Wrongful Arrest
In this section we state the rules regarding probable cause to arrest, describe the specific charge on which Shull’s arrest was based, and conclude the facts show CHP had probable cause to arrest her; we also reject Shull’s view that the First Amendment requires application of a different probable cause standard.
Although false arrest “‘is but one way of committing a false imprisonment’” (Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 752, fn. 3 (Asgari)) we address Shull’s two claims of false imprisonment separately, in Part IV, infra.
A. Probable Cause Standards
A warrantless arrest is presumed to be unlawful, therefore the defendant has the burden to show that the arrest was lawful. (Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 592.)
Penal Code section 836 provides in relevant part:
“(a) A peace officer . . . without a warrant, may arrest a person whenever any of the following circumstances occur:
“(1) The officer has probable cause to believe that the person to be arrested has committed a public offense in the officer’s presence.
“(2) The person arrested has committed a felony, although not in the officer’s presence.
“(3) The officer has probable cause to believe that the person to be arrested has committed a felony, whether or not a felony, in fact, has been committed.”
The complaint alleged the arrest was for a felony, but the summary judgment papers purport to show it was a misdemeanor arrest. We later explain (part IV, infra) why this is incorrect as a matter of law, and Shull was arrested for a felony, as she pleaded. This does not change our probable cause calculus because for purposes of this appeal the only difference between a felony and misdemeanor warrantless arrest is whether the conduct was committed in the officer’s presence. (But see Beauregard v. Wingard (1965) 237 Cal.App.2d 760, 763-764 [Pen. Code § 836 seems to allow arrest without cause if felony actually committed]; 4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Pretrial Proceedings, § 24, pp. 221-222 [issue open].)
“Probable cause means that the arresting officer was aware of facts that would lead a person of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that an individual is guilty of a crime.” (Johnson v. Lewis (2004) 120 Cal.App.4th 443, 452 (Johnson).) “When . . . the facts known to an officer are sufficient to constitute probable cause to arrest, the possibility of an innocent explanation does not vitiate probable cause and does not render an arrest unlawful.” (Id. at p. 453.) “[T]he validity of an arrest is measured by whether the facts known to the officer support a reasonable suspicion of criminal activity, not whether the facts are sufficient to convict.” (Ibid.; see Coverstone v. Davies (1952) 38 Cal.2d 315, 321-322 [officers must “be allowed to act without fear of being held liable upon the facts as they see them, provided such facts would lead a reasonable person to conclude that he was witnessing the commission of a public offense by the person arrested”]; People v. Thompson (2006) 38 Cal.4th 811, 820 [sufficient probability, not certainty, is touchstone of reasonableness].)
“Probable cause is measured by an objective rather than subjective standard. . . . Where . . . an officer has probable cause to make an arrest, we will not inquire into his subjective motivations.” (Johnson, supra, 120 Cal.App.4th at p. 454.)
The inquiry is based on the facts known at the time of arrest. (Hamilton v. City of San Diego (1990) 217 Cal.App.3d 838, 844 (Hamilton); White v. Martin (1963) 215 Cal.App.2d 641, 650 (White).) The defendant cannot rely on after-acquired incriminating evidence, and the plaintiff cannot rely on after-acquired exculpatory evidence, nor on the ultimate disposition of any criminal charges. (Johnson, supra, 120 Cal.App.4th at p. 456; Hamilton, supra, 217 Cal.App.3d at p. 844; White, supra, 215 Cal.App.2d at p. 651.)
Reliable hearsay may show probable cause. (Humphrey v. Appellate Division (2002) 29 Cal.4th 569, 573; see People v. Ramey (1976) 16 Cal.3d 263, 268-269 [citizen informants presumed reliable]; Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1045 (Gillan) [rule stated in tort case].) The arresting officer may act based on the collective knowledge of the police. (See People v. Gomez (2004) 117 Cal.App.4th 531, 540-541.)
B. Conspiracy to Demonstrate without a Permit
Government Code section 14685, subdivision (c)(1) authorizes the CHP to adopt regulations to protect state property, “including, but not limited to, the issuance of permits concerning the use of state buildings, properties, and grounds.” “A violation of any rule or regulation adopted pursuant to paragraph (1) is a misdemeanor.” (Gov. Code, § 14685, subd. (c)(2).)
A regulation so adopted states: “No person shall hold or conduct any demonstration or gathering in or upon any state buildings or grounds unless a permit has been issued . . . .” (Cal. Code Regs., tit. 13, § 1860, subd. (a).) “‘Demonstration’ includes the parading, picketing, selling of non-commercial printed matter or materials, marching, moving in procession, holding of vigils, and engaging in other like forms of activity which involve the communication of views or grievances, orally or by conduct and which has the effect, intent or propensity to draw a crowd or onlookers.” (Id., § 1851, subd. (c).) Other regulations govern how to apply for a permit and appeal if one is denied or revoked. (Id., §§ 1855-1857.)
An agreement to commit a crime, coupled with an overt act, is a conspiracy. (Pen. Code, §§ 182, 184.) “Conspiracy requires two or more persons agreeing to commit a crime, along with the commission of an overt act, by at least one of these parties, in furtherance of the conspiracy. [Citations.] A conspiracy requires (1) the intent to agree, and (2) the intent to commit the underlying substantive offense. [Citation.] These elements may be established through circumstantial evidence. [Citation.] ‘They may . . . “‘be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy.’”’” (People v. Bogan (2007) 152 Cal.App.4th 1070, 1074 (Bogan).)
Putting aside whether conspiracy to demonstrate without a permit is a misdemeanor or felony, as addressed infra, it requires an agreement and intent to demonstrate without a permit, and an overt act towards demonstrating without a permit.
C. Probable Cause to Arrest Shull
It is apparent that “Bear” committed the misdemeanor of unlawfully demonstrating by climbing the tree without a permit and communicating his views with the effect and intent to draw a crowd. (Gov. Code, § 14685, subd. (c)(2); Cal. Code Regs., tit. 13, § 1851, subd. (c).) His acts met the overt act requirement. (See People v. Robinson (1954) 43 Cal.2d 132, 139-140 [overt act may be done by one conspirator] (Robinson); People v. Jurado (2006) 38 Cal.4th 72, 121 [target offense can be overt act].)
The issue is whether the facts known to the CHP at the time of the arrest would lead the CHP to entertain a strong suspicion that Shull conspired with “Bear”, that is, she agreed to aid him with the intent that he engage in an unlawful demonstration.
The CHP knew the following facts, either from collective observations or from reports of groundskeepers, presumptively reliable informants: Shull drove with “Bear” from Arcata to Sacramento. She helped him get his duffel bag into the tree. She communicated with him through bird calls and helped him communicate with the media, by giving out his cell phone number, and she videotaped him. She conceded she handed out literature supporting his political cause.
This evidence shows the CHP “was aware of facts that would lead a person of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion” (Johnson, supra, 120 Cal.App.4th at p. 452) that Shull had agreed to help “Bear” accomplish the goal of demonstrating without a permit. Her travel with him from Arcata, her help in getting his duffel bag into the tree, her use of bird calls to communicate with him, her distribution of literature and her facilitation of discourse between “Bear” and the police and media would lead any reasonable officer to conclude that she was an integral part of a planned demonstration, and that the two had planned the “tree sitting” from the beginning.
On appeal Shull points to facts not known to the officers, and draws innocent inferences from the facts known to them, but as stated, that is not the proper inquiry when evaluating whether probable cause exists. (Johnson, supra, 120 Cal.App.4th at pp. 453-456.) For example, as she says, a jury might conclude she helped “Bear” get the duffel bag into the tree “because she was concerned for his safety, and wanted to make sure he had whatever he needed to climb safely.” Assuming that could qualify as an innocent explanation, the CHP was not obliged to draw that inference from the facts.
Shull asserts there were material disputes about whether the CHP knew a groundskeeper had seen her walking with “Bear,” whether a groundskeeper saw her hand “Bear” his duffel bag, and whether she mislead the CHP by telling an officer she was not with “Bear.” The first two facts were not disputed in the summary judgment papers; as stated earlier, Shull simply disputed the implications that she was casing the park for trees to climb and that she helped “Bear” get into the tree. We accept Shull’s view that whether she misled the CHP is disputed and therefore cannot be used to bolster probable cause, but that purported fact is not necessary to a finding of probable cause.
In the reply brief Shull asserts there is a dispute about whether a groundskeeper told the CHP about the duffel bag before or after she was arrested. As stated above, her only dispute to this tendered fact was to the implication that she helped “Bear” into the tree. The CHP’s declaration supporting that fact shows the groundskeeper reported the duffel bag incident “as California Highway Patrol officers arrived at the scene,” and Shull does not dispute that Officer Mann arrived at 2:37 and she was not arrested until 4:23 that afternoon. If there was any evidence the groundskeeper did not tell the CHP about the duffel bag until after her arrest, Shull should have raised that dispute in her response to the CHP’s undisputed facts. She did not: Her purported “dispute” did not cite any evidence, it merely raised a discovery issue, not now relevant. Because Shull did not properly dispute when the groundskeeper relayed his information to the CHP, we accept that he did so “as” CHP officers arrived, which was long before the arrest. (Cal. Rules of Court, rule 3.1350(f) [opponent must state “nature of the dispute”]; see Cheviot Vista Homeowners Assn. v. State Farm Fire & Casualty Co. (2006) 143 Cal.App.4th 1486, 1493-1494, fn. 5.)
D. First Amendment
Shull’s principal claim is that a different legal standard of probable cause must be applied in this case. In her view, because “Bear” was engaged in political expression, direct evidence of an agreement is necessary to showprobable cause to arrest her for conspiring with him. We disagree for three reasons: Longstanding precedent holds that circumstantial evidence may be used to show an agreement, the cases Shull relies on are concerned with a planned lawful demonstration that may become unlawful, and in any event her authority involves the amount of evidence needed to convict, but probable cause does not require the same quantum of evidence.
First, the California Supreme Court has repeatedly held that circumstantial evidence may be used to show a conspiracy agreement. (People v. Osslo (1958) 50 Cal.2d 75, 94-95 (Osslo); Robinson, supra, 43 Cal.2d at p. 136; People v. Steccone (1950) 36 Cal.2d 234, 237-238; People v. Donnolly (1904) 143 Cal. 394, 398 [“From the secrecy with which unlawful undertakings are adopted it would be generally impossible to make such proof by direct testimony”]; see also Bogan, supra, 152 Cal.App.4th at p. 1074; 1 Witkin & Epstein, supra, Elements, § 75, p. 286.)
Second, the root of Shull’s claim is a fractured and inapposite decision that at best is concerned about chilling lawful demonstrations. The case arose when high school students protested poor school conditions. (Castro v. Superior Court (1970) 9 Cal.App.3d 675, 678-679 & fn. 1 (Castro).) The court issued a writ of prohibition to restrain prosecution of counts alleging conspiracy to commit the misdemeanors of disturbing the peace (Pen. Code, § 415) and disturbing a public school (former Ed. Code, § 16701, current Ed. Code, § 32210). (Id. at p. 708.)
In discussing conspiracy to disturb the peace, then-Court of Appeal Presiding Justice Otto Kaus stated that applying the ordinary conspiracy rule allowing the use of circumstantial evidence to show an agreement could chill free expression, because organizers of a lawful demonstrationmight not be able to judge when the demonstration would turn unlawful:
“Therefore, unless one is prepared to say that anyone who organizes a demonstration by high school students assumes the risk of their misbehavior, it must be that the First Amendment prohibits conspiracy prosecutions in this area where the People’s case that the demonstrations, as planned, involved illegal means, rests entirely on circumstantial evidence.” (Castro, supra, 9 Cal.App.3d at pp. 693-694.)
Justice Stephens concurred in the result as to this count, on the ground no substantial evidence in the grand jury transcript supported this charge. (Castro, supra, 9 Cal.App.3d at p. 708.) Justice Reppy dissented, rejecting the view that circumstantial evidence could not be used to show an agreement in conspiracy cases. (Id. at pp. 712-719.) Thus, the quoted part of Castro does not reflect the holding of the case. Further, as stated, Justice Kaus was concerned with the nature of the evidence of the lawfulness or unlawfulness of the demonstration as planned. (Id. at pp. 693-694.) In this case “Bear” engaged in a demonstration that was unlawful from the beginning. This is not a case where there is a risk of chilling a planned lawful demonstration that might become unlawful.
To bolster the perceived precedential value of Castro, Shull points to Long v. Valentino (1989) 216 Cal.App.3d 1287, another unusual and divided case. Long, a peace officer, sued the ACLU and its agents for violation of his civil rights. He attended a public meeting about police conduct and was singled out by a speaker (Valentino) and then publicly ordered to leave by an ACLU attorney (Lloyd), who threatened the officer. (Id. at pp. 1291-1292.) The majority reversed a monetary judgment against Valentino because all she did was ask the officer to identify himself. (Id. at p. 1294.) The majority acknowledged that there was “the most meager circumstantial evidence to sponsor the notion that she acted in concert or conspired with” the attorney to eject the officer, but concluded the jury had based liability on the theory that she “incited the ejection,” and found no evidence to support that finding. (Id. at pp. 1294-1295.) But in a footnote the majority accepted Justice Kaus’s view, quoted above, that direct evidence of conspiracy was necessary to impose liability where First Amendment rights are implicated. (Id. at p. 1294, fn. 4.) A dissent found sufficient evidence that Valentino “aided, incited, or conspired in ejecting” the officer. (Id. at pp. 1300-1302.)
We note that the Long majority drew no distinction between criminal conspiracy and civil conspiracy, which is simply a theory of joint liability. (See Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511; 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, §§ 45-47.) In any event, if Long was correct on this point it, too, was concerned with lawful expressive conduct, and merely because “Bear’s” unlawful demonstration was his way of communicating his political views does not make his conduct less criminal.
Third, even if the Long majority and Justice Kaus’s view in Castro are correct, at best that view would require direct evidence of an agreement to sustain a conviction or uphold tort liability for conspiracy in the First Amendment context. But probable cause analysis has never required that an officer know sufficient evidence to convict, that is, sufficient evidence of all elements of a crime. (People v. Ingle (1960) 53 Cal.2d 407, 413; Johnson, supra, 120 Cal.App.4th at p. 453.)
Shull claims that in order to have probable cause an officer must know the elements of the crime and know that a person could be prosecuted for that crime: “[N]o objectively reasonable officer could ‘honestly’ have believed that Ms. Shull was ‘guilty’ of a conspiracy offense, as probable cause requires, where she obviously could not even be prosecuted for it.[fn.]” This argument overlooks the fact that an arrest is usually the beginning, not the end, of a criminal investigation, and officers often make arrests with the expectation that further evidence will be revealed. In the footnote to this argument, and elsewhere, Shull makes assertions like this: “[I]t stands to reason that if prosecutors could not even charge Shull with conspiracy under Castro/Long, then the C.H.P. had even less basis to arrest her.” But the Castro view, even as interpreted by Shull, was not that it was improper to charge conspiracy to disturb the peace, it was that a review of the grand jury transcript revealed insufficient evidence to convict because, at least in Justice Kaus’s view, there was no direct evidence of an agreement. Nothing in Castro, supra, 9 Cal.App.3d 675, far less Long, supra, 216 Cal.App.3d 1287, speaks to the issue of probable cause to arrest a person for conspiracy.
Here, as stated, the facts known to the CHP were such as to cause a person of “ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion” (Johnson, supra, 120 Cal.App.4th at p. 452) that Shull conspired with “Bear” to demonstrate without a permit.
IV. False Imprisonment
Even where an arrest is lawful, a claim may be stated for the failure to promptly release an arrestee as required by law. (See 1 Dobbs, Law of Torts (2002) False Imprisonment, § 38, p. 73 [liability is for “the failure to present the plaintiff with legal opportunities for release”].) Shull raises two claims of false imprisonment. First, she claims the CHP should have used a statutory cite-and-release procedure. Second, she claims the detention between her arrest and her delivery to the Sacramento County Jail is actionable. We disagree.
A. Cite-and-Release Procedure
Penal Code section 853.6 partly provides:
“(a) In any case in which a person is arrested for an offense declared to be a misdemeanor . . . and does not demand to be taken before a magistrate, that person shall, instead of being taken before a magistrate, be released according to the procedures set forth by this chapter. If the person is released, the officer or his or her superior shall prepare in duplicate a written notice to appear in court, . . . If, pursuant to subdivision (i), the person is not released . . . and the officer in charge of the booking or his or her superior determines that the person should be released, the officer or his or her superior shall prepare a written notice to appear in a court.
[¶] . . . [¶]
“(i) Whenever any person is arrested by a peace officer for a misdemeanor, that person shall be released according to the procedures set forth by this chapter unless one of the following is a reason for nonrelease, in which case the arresting officer may release the person, or the arresting officer shall indicate, on a form to be established by his or her employing law enforcement agency, which of the following was a reason for the nonrelease:
[¶] . . . [¶]
“(7) There was a reasonable likelihood that the offense or offenses would continue or resume, or that the safety of persons or property would be imminently endangered by release of the person arrested.”
Thus, apart from exceptions not here relevant, unless a misdemeanor arrestee exercises the right to be taken promptly before a magistrate, she or he “may” be released by the arresting officer. (Pen. Code, § 853.6, subds. (a) & (i).) But, “There is no requirement that a person arrested for a non-Vehicle Code misdemeanor violation must be released without bail nor without booking. It is a matter within the discretion of the arresting officer or the booking officer.” (People v. Superior Court (1973) 30 Cal.App.3d 257, 264.)
The arrest form used by the CHP lists the statutory reasons for nonrelease of misdemeanants, and reason “7,” preprinted with language tracking subdivision (i)(7) of the statute just quoted, was selected by means of a checked box on the form.
Shull initially asserted that there is no evidence supporting this reason, therefore the CHP did not meet its burden on summary judgment on her claim that she should have been cited and released, not placed in formal custody.
By its terms the cite-and-release statute applies to misdemeanor arrests. (Pen. Code, § 853.6, subds. (a) & (i).) Despite the purported “undisputed” fact that Shull was arrested for a misdemeanor, and despite the arresting officer’s evident belief that he arrested her for a misdemeanor, it appeared to this court, as a matter of law, that she was arrested for a wobbler, a crime that may be punished as a felony or as a misdemeanor. (See People v. Williams (2005) 35 Cal.4th 817, 820.) The purported “fact” in the summary judgment papers that it was a misdemeanor is instead a legal conclusion. As a general rule, with exceptions, a conspiracy to commit a misdemeanor is a wobbler. (1 Witkin & Epstein, supra, Elements, § 68(d), p. 279; id., supra, Jurisdiction and Venue, § 15, pp. 104-105.) Because a wobbler is treated as a felony until it is designated as a misdemeanor as provided by statute (Pen. Code, § 17; see 1 Witkin & Epstein, supra, Introduction to Crimes, § 72, pp. 117-118) it seemed that the cite-and-release procedure would not apply as a matter of law. Because of this tentative view, we ordered supplemental briefing on these issues.
Shull contends conspiracy to demonstrate without a permit is a misdemeanor, because it would violate either “Wharton’s Rule” or frustrate legislative intent to treat it as a felony. She also contends that if it is a wobbler, the arresting officer’s act of treating it as a misdemeanor was sufficient to trigger application of the cite-and-release procedure. Finally, she reiterates her claim that the CHP failed to carry its burden on summary judgment to show that the reason it gave for not releasing her was reasonable. We reject her claims.
1. Wharton’s Rule
Penal Code section 182, subdivision (a) defines criminal conspiracy. When two persons conspire to “commit any crime,” (subd. (a)(1)) commonly referred to as the “target” crime, the punishment differs, depending on what target crime they agreed to commit. The statute defines some target crimes, including crimes against officials and “any other felony,” and then states that where the conspiracy is to commit “any of the other acts described in this section,” including misdemeanors (“any crime”), the punishment is imprisonment in the county jail or state prison, meaning that, as a general rule, the crime of conspiracy to commit a misdemeanor is a wobbler. (See Osslo, supra, 50 Cal.2d at pp. 97-98; Doble v. Superior Court (1925) 197 Cal. 556, 565 [“any crime” in section 182 refers to “all felonies and misdemeanors known to the law of this state”].)
Shull claims the target crime in this case takes two to agree, and thereby invokes Wharton’s Rule. That rule, really a guide to legislative intent, states that when the elements of a target crime include an agreement, that agreement cannot be used to charge a conspiracy. (People v. Mayers (1980) 110 Cal.App.3d 809, 815-816 (Mayers); Iannelli v. United States (1975) 420 U.S. 770, 773-786 [43 L.Ed.2d 616, 620-628].)
The target crime was demonstrating without a permit. The regulation defining “demonstration,” quoted earlier, does not require an agreement of any kind. The crime can be committed by a person who, while in Capitol Park and lacking a permit, engages in “parading, picketing, selling of non-commercial printed matter or materials, marching, moving in procession, holding of vigils, and engaging in other like forms of activity which involve the communication of views or grievances, orally or by conduct and which has the effect, intent or propensity to draw a crowd or onlookers.” (Cal. Code Regs., tit. 13, § 1851, subd. (c).) For purposes of this appeal we accept that “parading” and “moving in procession” imply more than one person and perhaps imply the existence of an agreement, but a single person can picket, march, hold a vigil and so forth, with the purpose and intent of drawing a crowd. Indeed, Shull’s complaint alleges “Bear” engaged in a “demonstration” and even without her assistance his actions would have drawn a crowd.
In contrast, the regulations define “gathering” in part to mean “the assemblage of more than two persons . . . having the effect, intent or propensity to draw a crowd or onlookers.” (Id., § 1851, subd. (e).) Thus, the CHP, as drafter of these regulations, knows how to specify when a category of conduct requires more than one person, and nothing in the definition of “demonstration” requires either an agreement or more than one person. Thus, Wharton’s Rule has no application here.
2. Legislative Intent
Shull points to the rule that even where conduct fits the definition of a felony conspiracy to commit a misdemeanor, if the Legislature intended that conduct to be treated as a misdemeanor, such intent precludes felony conspiracy treatment. This rule overlaps, but is not coextensive with, Wharton’s Rule. (See Williams v. Superior Court (1973) 30 Cal.App.3d 8, 14 [“it would defeat the legislative classification to permit a prostitute to be charged with conspiracy in a case in which the alleged co-conspirator is either a pimp or panderer”]; People v. Pangelina (1981) 117 Cal.App.3d 414, 422-424 [“the use of the conspiracy law to impose felony punishment upon persons merely residing in a house of prostitution in our view directly violates an affirmative legislative intent to punish those parties as misdemeanants”] (Pangelina); 1 Witkin & Epstein, supra, Elements, § 70, pp. 282-283 [distinguishing this from Wharton’s Rule]; Mayers, supra, 110 Cal.App.3d 809 [treating the rules separately].) It is an application of the rule that a special statute controls over a general statute. (See In re Williamson (1954) 43 Cal.2d 651, 653-654 [statute defined the particular kind of conspiracy as a misdemeanor]; People v. Proctor (1993) 18 Cal.App.4th 1055, 1060-1063.)
As stated, the target crime does not require any agreement between persons. It states “No person shall hold or conduct any demonstration or gathering in or upon any state buildings or grounds unless a permit has been issued,” and a single person can violate this regulation. (Cal. Code Regs., tit. 13, § 1860, subd. (a); see People v. Jones (1964) 228 Cal.App.2d 74, 82-85 [target crime forbade “Every person” from proposing a lottery, therefore felony conspiracy charge was proper].)
Contrary to Shull’s view, she was not arrested for demonstrating, or aiding a demonstration, but for the perceived unlawful agreement to demonstrate. “A conspiracy to commit a misdemeanor does not elevate the misdemeanor to a felony. It is the unlawful agreement to commit a criminal offense that constitutes a felony.” (People v. Tatman (1993) 20 Cal.App.4th 1, 8.) The authorities relied on by Shull acknowledge that conspiracy to commit a misdemeanor is more serious than the target misdemeanor, because it carries a greater risk of harm:
“Such a rule is based upon the notion that a conspiracy increases the likelihood that the criminal object will be successfully attained, and makes more likely the commission of crimes unrelated to the original purpose for which the combination was formed. [Citation.] ‘Thus wrongful conduct by such combination should be criminally punished even when the same acts would be excused or receive a lesser punishment when performed by an individual; group criminal conduct calls for enhanced punishment, and society has a justifiable right and obligation to intervene at an earlier stage.’” (Pangelina, supra, 117 Cal.App.3d at p. 420, original italics.)
Notwithstanding the legislative solicitude for prostitutes, we recently held that a pimp could be convicted of conspiracy to solicit prostitution, where the uncharged co-conspirators were prostitutes, because treating such a person as a felon comports with the policy behind the conspiracy statute:
“The rationale for making conspiracy a crime, independent from the underlying substantive offense, is that ‘“collaborative criminal activities pose a greater potential threat to the public than individual acts.”’ [Citations.] In Williams, the court expressly rejected the defendant’s argument that conspiracy to commit prostitution is no more serious than the actual act of prostitution. (Williams, supra, 30 Cal.App.3d at p. 11.) Said Williams: ‘Some of the sordid aspects of the commercial exploitation of prostitutes are too well known to require the citation of any authority.’ (Ibid.)
“In the instant case, an agreement between defendant and his prostitutes made it more likely that they would commit the underlying offense. The group could pressure a reluctant individual into going through with the plan, and it would be difficult for that individual to convince the rest of the group to abandon their plans. The increased danger posed by this type of collaborative criminal activity reasonably justifies upholding the conspiracy conviction in the present case.” (Bogan, supra, 152 Cal.App.4th at p. 1077.)
We see nothing in the authorizing statute or CHP regulation that evidence an intention that persons who agree to demonstrate without a permit should be punished only as misdemeanants. Two or more people who plan to demonstrate illegally present a greater risk to society, both a greater risk that the demonstration will take place and a greater risk that the injurious effects of the demonstration will be more severe.
In part, Shull points to another portion of the Castro case, where Justice Stephens expressed the following view:
“I concur in the result because the act of the several defendants, though committed by plan and design, is by its very nature one which constituted a low-grade misdemeanor and which is more consistent with what is now classified as an infraction in the Penal Code: i.e., the disturbance caused by the walkout. Further, there being no danger of enlarging the crime by conspiratorial planning, it remains but the act prohibited. Any conspiracy which raises such a violation to a more onerous status is encompassed within the more serious charge of breach of the peace (Pen. Code, § 415), . . . It is unconscionable to create a felony from the cooperative commission of this misdemeanor by two or more persons. . . . To my mind, it seems only reasonable to hold that where, as in the instant case, the prohibited act itself cannot become more heinous because of the planned action of two or more persons, the gravity of the violation does not increase to the extent of warranting a felony classification.” (Castro, supra, 9 Cal.App.3d at pp. 710-711, original italics.)
Apart from the fact that this was not a holding in Castro, it is unpersuasive for two reasons. First, the Legislature generally defines a conspiracy to commit a misdemeanor as a wobbler and the courts have long upheld that treatment. Second, as stated, the act of demonstrating without a permit does become “more heinous” when planned by two or more persons.
Accordingly, we reject Shull’s claim that conspiracy to demonstrate without a permit is a misdemeanor; it is a wobbler.
3. Wobblers
Shull next claims that if conspiracy to demonstrate without a permit is a wobbler, it was converted into a misdemeanor when the CHP officer treated it as a misdemeanor. We disagree. The Legislature has carefully defined when a wobbler is treated as a misdemeanor and it is not done by a constable on patrol.
A wobbler is treated as a felony for all purposes unless and until a statutorily defined event happens. (Pen. Code, § 17, subd. (b); see People v. Banks (1959) 53 Cal.2d 370, 380-383; People v. Walker (1969) 272 Cal.App.2d 252, 254; People v. Graff (1956) 144 Cal.App.2d 199, 206 [for purposes of probable cause to arrest, wobbler treated as felony]; People v. Soto (1985) 166 Cal.App.3d 770, 774-775; 1 Witkin & Epstein, supra, Introduction to Crimes, § 72, pp. 117-118.)
In particular, Penal Code section 17 defines a felony as a crime “punishable with death or by imprisonment in the state prison”, and states that all other crimes are misdemeanors, unless specified to be infractions. (Pen. Code, § 17, subd. (a).) Because wobblers are crimes “punishable” by imprisonment in state prison, they are felonies unless otherwise stated. Subdivision (b) of section 17 exclusively defines the circumstances under which wobblers are not treated as felonies:
“When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:
“(1) After a judgment imposing a punishment other than imprisonment in the state prison.
“(2) When the court, upon committing the defendant to the Youth Authority, designates the offense to be a misdemeanor.
“(3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.
“(4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his or her arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint.
“(5) When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.”
Thus, a wobbler is a felony unless and until one of the listed events occurs, making the crime no longer “punishable” by imprisonment in state prison and therefore no longer falling within the general definition of a felony. Those events are taken upon “determination by the official who, at the particular time, possesses knowledge of the special acts of the individual case and may, therefore, intelligently exercise the legislatively granted discretion.” (People v. Clark (1971) 17 Cal.App.3d 890, 898; see Malone v. Superior Court (1975) 47 Cal.App.3d 313, 316-317 [purpose “to permit the selection of offenders who merit more lenient treatment, to encourage guilty pleas by limiting the potential penalty and to save court time and expense”]; Necochea v. Superior Court (1972) 23 Cal.App.3d 1012, 1015-1016 [“to benefit the offender and to encourage misdemeanor filings where such appear to be warranted”].)
As stated, the cite-and-release procedure provided by Penal Code section 853.6 are applicable to any offense “declared to be a misdemeanor,” and Shull asserts that the arresting officer has the power so to “declare.” We disagree because such a construction would subvert the legislative scheme of Penal Code 17. Instead, the phrase “any case in which a person is arrested for an offense declared to be a misdemeanor,” (Pen. Code, § 853.6, subd. (a), italics added) means offenses declared by the Legislature to be a misdemeanor. That reading is harmonious with section 17 and makes sense. Penal Code section 17 provides discretion to designated officials to determine when a wobbler is no longer punishable in state prison and thus no longer a felony. (See People v. Statum (2002) 28 Cal.4th 682, 689 [prosecutorial discretion as to wobblers]; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 976-980 [judicial discretion as to wobblers].) It does not provide any way that a peace officer can reduce a wobbler to a misdemeanor: Even if an officer calls a wobbler a misdemeanor in an arrest report, the prosecutor retains discretion to file felony charges, and the crime is still “punishable” in state prison. This reading of the statute makes sense because a peace officer lacks the training and prosecutorial discretion to judge when a person committing a wobbler should be treated more leniently than other offenders committing that crime. The confusion and uneven enforcement Shull’s view would cause further militates against her construction. (See People v. Catelli (1991) 227 Cal.App.3d 1434, 1449-1450 [statutes read to avoid absurd results].) The circumstance, partly relied on by Shull, that section 853.6 is a newer statute than section 17 is irrelevant, absent some textual or other indication the one was intended to modify the other. Because the cite-and-release statute by its terms applies to and only to misdemeanors, the cite-and-release procedure was not applicable to Shull’s arrest.
In so holding we adopt the reasoning of a thoughtful opinion issued by the California Attorney General, which we provided to the parties in this case. That opinion examines the principles we have just discussed and concludes:
“Because those crimes which are punishable either as felonies or misdemeanors can be treated as a misdemeanor only when so charged by the district attorney or a magistrate before trial or by the judge at the time of sentencing, the police officer at the time of arrest does not have the discretion to make that determination. [Citation.] Therefore, peace officers are not authorized by Penal Code section 853.6 to issue misdemeanor citations where the crime could be charged as either a misdemeanor or a felony.” (58 Ops.Cal.Atty.Gen. 886, 888 (1975).)
Because, as a matter of law, Shull was arrested for a felony, the officer had no discretion to release her by giving her a citation, therefore it does not matter what reason the officer gave for not doing so.
B. Prolonged Detention at the CHP Station
Shull claims the officers detained her too long before turning her over to Sacramento County officials.
No such claim is pleaded in the complaint. As we recounted above, Shull’s declaration stated that she had been kept handcuffed, except for a bathroom break, for about five hours. But that claim was not tethered to any undisputed fact and her complaint does not plead prolonged or harsh detention as to the CHP, it explicitly ties such claims to Sacramento County defendants, based on conduct in the Sacramento County Jail. Her claim that the CHP was liable “to the same extent as” the Sacramento County defendant was solely on the theory that “the strip search was a proximate and foreseeable result of [the CHP’s] false arrest and failure to cite and release.” If Shull wanted to press claims of prolonged or harsh detention by the CHP, she should have moved to amend her complaint. (Lackner, supra, 135 Cal.App.4th at p. 1201, fn. 5; Couch v. San Juan Unified School Dist. (1995) 33 Cal.App.4th 1491, 1500.)
“A ‘moving party need not “. . . refute liability on some theoretical possibility not included in the pleadings.”’ . . . ‘“[A] motion for summary judgment must be directed to the issues raised by the pleadings. The [papers] filed in response to a defendant’s motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings.”’” (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.)
Second, “Although a public employee, and his or her public entity employer (Gov. Code, § 815, subd. (a)), can be liable for false imprisonment, the recoverable damages are limited to damages for injuries caused by conduct that occurred during the period of false imprisonment. Government Code section 821.6 precludes the recovery of damages for injuries caused by conduct that occurred after the false imprisonment had ended, even if that conduct was causally related to the false imprisonment.” (Gillan, supra, 147 Cal.App.4th at p. 1049; see Asgari, supra, 15 Cal.4th at pp. 757-758.) Although the rule stated in those cases is driven by the fact that any postarraignment imprisonment is not false imprisonment, but perhaps malicious prosecution, the point we infer is that liability for different periods of imprisonment must be assessed separately. Here, because the CHP is not liable for conduct by Sacramento County officers after they took custody of Shull, Shull’s claim is limited to the alleged five hour detention at the CHP station.
Although some cases have imposed liability for short but unreasonable detentions, there is nothing about this detention which is actionable. The fact that it was five hours long does not, of itself, show it was unreasonable. The cases upholding or assuming liability for short detentions involve detentions that were going to end after that time, whereas here, the detention was merely a prelude to a further detention. In other words, if the CHP had transported Shull more quickly to the jail, she would still have been detained, albeit not by the CHP.
The usual fact pattern involves an unreasonable delay in taking a person arrested without a warrant before a magistrate. For example, in Vernon v. Plumas Lumber Co. (1925) 71 Cal.App. 112, we upheld liability when private citizens arrested the plaintiff and took him to jail instead of to a magistrate, and used the time to further investigate their reasons for arresting him. (Id. at pp. 115-117; see Dragna v. White (1955) 45 Cal.2d 469, 472-473; Youngblood v. Gates (1988) 200 Cal.App.3d 1302, 1319; 5 Witkin, Summary of Cal. Law, supra, Torts, § 445, pp. 664-665; cf. Ogulin v. Jeffries (1953) 121 Cal.App.2d 211, 217 [upholding defense judgment where arrestee held overnight, but did not ask to be taken before a magistrate, who was located some distance away].) A magistrate may release an arrestee, ending the confinement, or may order continued confinement, in which case the confinement is no longer caused by the person who made the arrest, but by the judicial officer. Thus, unreasonable delay in such cases causes tangible harm.
Here, in contrast, Shull has not claimed the CHP prolonged her total period of detention. She pleaded—as against Sacramento County defendants only—that she was held for five days in the Sacramento County Jail. There is nothing to indicate an earlier entry into that jail would have changed her total period of confinement. She claims that because she had refused to talk to the CHP officers her confinement at the CHP was unnecessary, but this assumes that she would otherwise have been released, instead of more quickly “rendered,” in her words, to the Sacramento County Jail.
Further, we are unaware of any general cause of action for “discomfort” that can be shoehorned into a claim alleging an unduly prolonged detention. In her supplemental brief Shull relies on two cases which on careful reading do not support her view. Robinson v. City and County of San Francisco (1974) 41 Cal.App.3d 334 discussed the immunity, now provided by Civil Code section 43.55, subdivision (a), for an officer who makes an arrest under a warrant “without malice and in the reasonable belief that the person arrested is the one referred to in the warrant.” The defense sought summary judgment, in part arguing that reasonable belief should be determined as a matter of law. The court rejected that view, finding it was a factual question, stating, “The tort standard of ‘reasonableness’ presents a different question from the criminal standard of ‘probable cause.’” (Id. at p. 337.) Shull quotes that line in support of her claim that an “unreasonable” detention is actionable. Read in context, the quoted line does not mean what Shull says it means. Shull also cites a portion of Scofield v. Critical Air Medicine, Inc. (1996) 45 Cal.App.4th 990, which speaks of the use of duress to accomplish a detention. (Id. at pp. 996, 1000-1002.) The case says nothing about duress during a detention, as she implies.
V. Miscellany
Shull concedes that if we sustain the trial court’s conclusions regarding false arrest and wrongfully taking her into custody, various other claims fall (e.g., negligence, intentional infliction of emotional distress).
However, she maintains that her complaint states a viable claim under the Bane Act (Civ. Code, § 52.1), “predicated on the C.H.P.’s ‘interference with and retaliation for [her] exercise of free speech, assembly, and petition.’” However, because the officer did not improperly arrest and detain her, she has no way to prove interference with her expressive rights. The Bane Act provides, whether or not the defendant acted under color of law (cf. 42 U.S.C.A. § 1983) “a civil remedy for persons whose exercise of constitutional rights has been interfered with by ‘threats, intimidation or coercion.’” (O’Toole v. Superior Court (2006) 140 Cal.App.4th 488, 501-502, quoting Civ. Code, § 52.1.) It does not make actionable otherwise lawful conduct, such as a lawful arrest or detention. (See Venegas v. County of Los Angeles (2007) 153 Cal.App.4th 1230, 1239-1240 & fn. 15, 1247-1248; Ritschel v. City of Fountain Valley (2006) 137 Cal.App.4th 107, 123-125.)
In particular, Shull claims:
“Ms. Shull’s evidence of retaliation for and interference with free speech and assembly includes the following: (a) the C.H.P. arrested her for supporting Bear’s protest, by handing out literature, talking to bystanders and reporters, and offering words of encouragement to Bear; (b) they allowed her to engage in these activities for an hour and forty-five minutes before the orders came on high to arrest her; (c) she was literally talking to a reporter when they arrested her; (d) they arrested her without probable cause, and in violation of established law; and (e) they outlandishly subjected her to custodial arrest, rather than citing and releasing her, in flagrant violation of California law.”
We have addressed items (d) and (e) and concluded the arrest and detention were lawful. Item (a) is literally true: The CHP arrested her for “supporting Bear’s protest,” that is, for aiding him in his unlawful protest. (See People v. Morante (1999) 20 Cal.4th 403, 417 [acts of any conspirator in furthering plan are imputed to all].) Item (b) has no apparent relevance. Item (c) would have no relevance absent evidence the CHP arrested her because she was talking to a reporter, but more importantly, this purported fact is not in the record on appeal, it was in Shull’s previously denied request for judicial notice. Therefore, Shull’s factual showing does not support her claim of actionable “coercion” under the Bane Act.
Shull also maintains that she has a viable claim for declaratory and injunctive relief. Because she has failed to demonstrate any wrongful conduct by the CHP, she is not entitled to any further relief. (See Savient Pharmaceuticals, Inc. v. Department of Health Services (2007) 146 Cal.App.4th 1457, 1464 [party seeking declaratory relief not entitled to remand where the declaration is that no rights were violated, as appellate opinion memorializes that circumstance].)
DISPOSITION
The judgment is affirmed. Shull shall pay the CHP’s costs of this appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
We concur: BLEASE , Acting P.J. HULL , J.