Filed 9/3/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

LASHUN CARCAMO et al.,

Plaintiffs and Appellants,

v.

LOS ANGELES COUNTY 

SHERIFF’S DEPARTMENT et al.,

Defendants and Respondents.

B296666

Los Angeles County

Super. Ct. No. TC028076

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Mark C. Kim, Judge. Reversed and 

remanded.

Law Office of Erik C. Alberts and Erik C. Alberts for

Plaintiffs and Appellants.

Harold G. Becks & Associates, Harold G. Becks and 

Valorie Ferrouillet for Defendants and Respondents.

_________________________
2

Some 58 years ago, our Supreme Court held California 

had “adopted a general scheme for the regulation of the criminal 

aspects of being intoxicated in a public place.” (In re Koehne

(1963) 59 Cal.2d 646, 648 (Koehne).) That general scheme 

is encompassed in Penal Code section 647, subdivision (f)

(section 647(f)). Stating, “Whenever the Legislature has seen 

fit to adopt a general scheme for the regulation of a particular 

subject, the entire control over whatever phases of the subject 

are covered by state legislation ceases as far as local legislation 

is concerned,” the high court invalidated a city ordinance that 

prohibited being or appearing “ ‘in a state of drunkenness or 

intoxication’ ” “ ‘in any public place.’ ” (Koehne, at pp. 647–648.)

Notwithstanding decades of clear Supreme Court authority, 

as of at least February 2014 the City of Carson had on its books 

a “public intoxication” ordinance that purports to criminalize

conduct that is not unlawful under the Penal Code. Los Angeles

County Sheriff’s Department deputies arrested plaintiffs

LaShun Carcamo, Anthony January, and Kirby Hales for 

public intoxication under that ordinance, Carson Municipal Code 

section 4201 (C.M.C. section 4201). The arrestees spent a night 

and the better part of the next day in jail. They were never 

charged.

Plaintiffs sued the sheriff’s department and Deputy Larry 

Billoups for wrongful arrest. The trial court declined to address 

the preemption issue, instructing the jury that, if deputies saw 

plaintiffs drunk in public, they had reasonable cause to arrest 

them under the Carson ordinance. The jury found in defendants’ 

favor and plaintiffs appeal. We reverse.
3

BACKGROUND

Plaintiffs filed a third amended complaint on March 22, 

2016, alleging false imprisonment and battery.1 They dismissed 

their battery cause of action at trial.

On the night of February 15, 2014, Carcamo and January, 

who were dating at the time, had dinner at the Olive Garden 

in Carson. Both testified they had nothing to drink that night. 

Their receipt showed a free sample of wine but no alcoholic drink 

order.

In February 2014 Hales and his half-brother Kelton Jolly 

were living at their mother’s house in Carson. Jolly and January 

were longtime friends. On February 15, Hales and Jolly had 

gone to a car show and then to visit a friend. When they got 

back to the house, Hales parked his van at the curb outside; Jolly 

was in the passenger seat. They had not been drinking and there 

was no alcohol or food in the van. Hales was taking medication 

to stabilize his heart for surgery, and alcohol would “throw 

everything off.”

January had called Jolly to say he was coming over, and 

Hales and Jolly waited for him in the van for 10 or 15 minutes. 

The Jolly home was about five minutes away from the Olive 

Garden; January drove there so he could stop in and say hello 

to Hales and Jolly. January parked across the street and walked 

to the passenger side of the van to talk. Carcamo stayed in the 

1 Plaintiffs have not included any of the versions of the 

complaint in the appellate record. We use the term “false arrest,” 

as false arrest and false imprisonment are not separate torts; 

false arrest is one way of committing a false imprisonment. 

(Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 752, fn. 3.)
4

car. January stood upright talking to Jolly. According to Jolly, 

January did not smell of liquor or seem intoxicated in any way.

After January and Jolly had been talking for about five 

or 10 minutes, a patrol car pulled up behind the van with its 

lights flashing. Two deputies jumped out. They told January 

to step away from the van. The deputies pulled him back toward 

the patrol car.

Hales started to get out of the van. One of the deputies 

told him to shut the door, then to exit slowly with his hands over 

his head and to step backwards toward the patrol car. Hales 

complied, and the deputy handcuffed him and put him in the 

back of the patrol car. No one asked him if he had been drinking.

The deputies pulled Jolly out of the van, took him to the 

patrol car, frisked and cuffed him, and put him in the back of 

the patrol car. They never asked him if he had been drinking 

that night. Jolly gave the deputies a false name, but they ran 

his prints and found his outstanding warrants, one of which 

was for failure to appear in a DUI case.

The deputy later identified as Billoups said they had 

been getting calls that someone had been breaking into vans 

in the area. January explained they were just talking and asked, 

“ ‘Why are you harassing us?’ ” Billoups asked January if he 

had been drinking. January said no. Billoups asked his partner, 

Chad Holland, to take January back to the patrol car. Holland 

never asked January if he had been drinking.

When Carcamo saw deputies taking January to the patrol 

car, she got out of January’s car, locked it, and walked across 

the street. The deputies told her to stop and she stood behind 

the van. Billoups asked Carcamo if she had been drinking and 

she said no. Billoups told her he didn’t believe her. A female 
5

deputy arrived and patted Carcamo down, emptied her pockets, 

handcuffed her, and put her in a patrol car.

Deputies took Carcamo, Hales, January, and Jolly to the 

sheriff’s station. Carcamo, Hales, and January were released 

the next evening around 7:00 p.m.2 Hales felt weak and noticed 

a little pain because he had not been able to take his heart 

medication.

Called by plaintiffs as a witness, Billoups testified he had 

arrested Carcamo and Hales, and Holland had arrested January 

and Jolly. Billoups had been with the sheriff’s department for 

eight years, and he was Holland’s training officer at the time. 

Billoups made the call that Carcamo, Hales, and January were 

drunk in public, and that was the only reason for their arrests.

Billoups had been briefed that night on burglaries in the 

area. Around 11:05 p.m. he saw Hales’s van parked on the street 

with someone leaning his torso inside the passenger window. 

Billoups turned on his lights and stopped his patrol car behind 

the van. He approached the driver’s side and told Hales and 

Jolly to show him their hands, because Hales was opening the 

car door. They complied, while Holland “contact[ed]” January 

on the passenger side.

Billoups testified he could smell alcohol on Hales’s breath, 

and his eyes were bloodshot and watery. An open beer can was 

on the front center console. Billoups didn’t collect the beer can 

because he didn’t see anyone drinking from it. But he told 

Holland he’d seen it.

2 Jolly stayed in custody for 18 days to serve time on his 

warrants.
6

Billoups asked Hales if he’d been drinking and Hales 

answered yes, he was sitting there drinking and eating with 

Jolly. Hales was slurring his words. When Holland came back 

from putting January in the patrol car, Billoups ordered Hales 

out of the van to investigate possible intoxication in public. He 

put Hales’s hands behind his back, and noticed he was walking

“slightly . . . off balance.” Holland patted Hales down and put 

him in the back seat of the patrol car.

Billoups saw Carcamo “swaying” as she got out of the 

car parked on the other side of the street. She walked across 

the street to the sidewalk behind the patrol car. Carcamo knelt

on the sidewalk and rested her back against the brick wall. 

Billoups twice asked her if he could help her and she said no. 

From three feet away, he could smell alcohol on her breath. He 

asked her to stand up and put her hands on the hood. Billoups 

asked Carcamo if she had been drinking and she answered she 

had had a few beers or a few drinks with her boyfriend at dinner. 

Billoups decided to arrest Carcamo and waited for a female 

deputy to arrive and pat her down.

Billoups testified Carcamo was not a danger to herself 

or others, she was not blocking any public way, and she did 

not obstruct traffic when she crossed the street. Billoups 

acknowledged those were the elements for a violation of section 

647(f), but he didn’t arrest plaintiffs for violating the Penal Code; 

he arrested them for violating the Carson ordinance. A violation 

of C.M.C. section 4201 required only that a person be intoxicated 

in public in the City of Carson. Sobriety tests were required 

for an arrest for driving under the influence, but not for being 

intoxicated in public.
7

Billoups’s partner, Holland, likewise testified plaintiffs 

were arrested for violating C.M.C. section 4201. He explained 

that, while section 647(f) referred to being unable to care for 

yourself, C.M.C. section 4201 was a “lighter range. Anyone who 

is intoxicated in public.” Holland testified none of the plaintiffs 

was belligerent; they were just intoxicated, and “under [the] 

Carson Municipal Code, if you’re intoxicated and you’re 

displaying the objective symptoms of being intoxicated, it’s 

a crime.” The incident report he prepared back at the station 

stated all three plaintiffs were arrested for “drunk in public” 

under C.M.C. section 4201.

Clarence Chapman testified as an expert in police policy, 

training, tactics, and procedures. The department did “pretty 

intense” training on intoxication. C.M.C. section 4201 included 

being drunk in public in a vehicle. To violate section 647(f) one

would have to be “falling down drunk” and ready “to walk out

into traffic” or “fall off the roof,” and need “to go to jail for your 

own good.” A different level was required for C.M.C. section 

4201, which prohibited being outside in an intoxicated condition.

After reading the incident report, Chapman opined the 

deputies’ initial contact was reasonable and justified under 

the department’s policy and training, because they were aware 

of vehicle burglaries in the neighborhood and saw behavior 

consistent with burglarizing the van. Anything in plain sight 

the deputies then observed that “approximate[d]” another crime 

allowed them to proceed to the next step. Here, the deputies 

saw objective symptoms of intoxication in individuals on a public 

street and in a car, and under C.M.C. section 4201 that was a 

violation of the law. They could proceed to ask the individuals 

to get out of the car and to ask questions, and—if they had 
8

a reasonable suspicion of a violation—they could arrest the 

individuals. No sobriety test or breath or blood tests were 

required under C.M.C. section 4201. The deputies’ behavior 

was reasonable under department policy.

When recalled to the stand, Billoups testified he had been 

trained on the drunk-in-public ordinance, which he had enforced 

before, and on intoxication in general. January’s posture—

leaning into the van—was consistent with the burglaries Billoups

had learned about in briefing. When he went to the driver’s side, 

he could see Hayes was flushed, his eyes were red, and his breath 

smelled of alcohol. He had reviewed and approved Holland’s 

incident report, including the notation that plaintiffs were 

arrested for “drunk in public” under C.M.C. section 4201.

At the conclusion of their case in chief, plaintiffs moved 

for a directed verdict, arguing section 647(f) preempted C.M.C. 

section 4201 and, therefore, the Carson ordinance could not 

serve as reasonable cause to arrest. Their counsel emphasized 

Billoups’s testimony had made clear he arrested plaintiffs for 

violating the Carson ordinance, not the Penal Code. The court 

responded, “[W]hat it sounds like you are saying is, even if 

that was the basis for the arrest, that’s not the basis because 

you believe the Penal Code preempted that charge.” Counsel 

confirmed that was indeed plaintiffs’ argument.

The court said,

“That would be more persuasive if it was a 

criminal case, but this is a civil case. Meaning, 

if an officer believed that there was a crime 

based on the statutory violation—in this 

instance, the Carson Code municipal violation

—even if the court is persuaded that criminally 
9

they could not be prosecuted for that particular 

charge but for public intoxication based on 

Penal Code 647(f), the officer acted in good 

faith based on the belief that the Carson 

Municipal Code had been violated.” 

The court then referred to search warrants and United States

v. Leon (1984) 468 U.S. 897. After hearing from defense counsel, 

the court stated,

“Directed verdict is denied because the Carson 

Municipal Code is still valid. It is still in the 

books. And, basically, the only contested issue 

in this case is whether or not Deputy Billoups 

had probable cause to arrest these plaintiffs 

based on that particular violation of the Carson 

City Municipal Code.”

Plaintiffs submitted 12 proposed special jury instructions.

The record on appeal does not include those requested 

instructions. From the reporter’s transcript, it appears one 

of those requests was that the court give the jurors CALCRIM 

No. 2966, setting forth the elements of a violation of section 

647(f). The court repeated, “[T]he only issue in this case is 

whether or not the deputy had probable cause to arrest based 

on the Carson Municipal Code. So why would I allow the Penal 

Code? Why would I allow this particular charge to come in 

when this is not the charge that the plaintiffs were arrested for?” 

The court refused to give any of plaintiffs’ 12 special instructions.

The court gave the jury a special verdict form. The jury 

answered “yes” to these questions: “Did Deputy Larry Billoups 

arrest [plaintiffs] without a warrant?” and “Did Deputy Billoups 

observe each of the Plaintiffs drunk in public in violation of 
10

Carson Municipal Code [s]ection 4201 that, if proved, would 

constitute reasonable cause to believe each of the Plaintiffs 

had committed a crime in Deputy Billoups’s presence?” 

The court entered judgment in favor of the sheriff’s department 

and Deputy Billoups.

Plaintiffs filed a timely appeal from the judgment. After 

oral argument, we ordered the parties to submit letter briefs 

under Government Code section 68081, addressing whether

section 647(f)’s preemption of C.M.C. section 4201 meant 

the deputies did not have probable cause to arrest plaintiffs

under People v. McNeil (2002) 96 Cal.App.4th 1302.

DISCUSSION

1. Because section 647(f) has preempted C.M.C. section 

4201, the trial court erroneously instructed the jury 

that a violation of the Carson ordinance, if proved, 

would establish reasonable cause to arrest

As the trial court instructed the jury, the elements of 

the tort of false arrest are: defendant arrested plaintiffs without 

a warrant, plaintiffs were harmed, and defendant’s conduct 

was a substantial factor in causing the harm. (City of Newport 

Beach v. Sasse (1970) 9 Cal.App.3d 803, 810; CACI No. 1401.) 

If plaintiffs prove those elements, defendant has the burden of 

persuasion to prove the arrest was justified. (Gillan v. City of 

San Marino (2007) 147 Cal.App.4th 1033, 1044 (Gillan).) As the 

court also instructed the jury, the arrest is justified if defendant 

had reasonable or probable cause to believe that each plaintiff 

committed a crime in his presence. (Ibid.; CACI No. 1402.)

The standard is objective, based on the information known to 

the arresting officer: “The arresting officer’s actual motivations 
11

or beliefs should play no role . . . .” (Gillan, at p. 1045; Levin v. 

United Air Lines, Inc. (2008) 158 Cal.App.4th 1002, 1018 (Levin).)

The court gave the jury the following instruction regarding 

Billoups’s asserted justification for the arrest: “Deputy Larry 

Billoups claims the arrest was not wrongful because he had 

the authority to arrest plaintiffs La[S]hun Carcamo, Anthony 

January, and Kirby Hales without a warrant. If Deputy 

Billoups proves that being drunk in public, in violation of 

Carson Municipal Code section 4201, would establish that 

Deputy Billoups had reasonable cause to believe that each 

of the plaintiffs had committed a crime in his presence, then 

Deputy Billoups had the authority to arrest the plaintiffs 

without a warrant.”

Plaintiffs contend the instruction misstates the law 

because section 647(f) preempted C.M.C. section 4201. “We 

review de novo whether a challenged instruction correctly states 

the law.” (Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 298

(Bowman).) For the reasons that follow, we agree the instruction 

was erroneous.

Carson Municipal Code section 4201 states: “It shall 

be unlawful for any intoxicated person, or any person in an 

intoxicated condition, willfully to appear, remain or be in or 

on any public highway, street, alley, way, park, playground or 

public place in the incorporated territory of the City of Carson, 

whether such person is or is not in or upon any automobile, 

street or interurban car, vehicle or conveyance.” Section 647(f) 

of the California Penal Code states that anyone “found in any 

public place under the influence of intoxicating liquor . . . in 

a condition that they are unable to exercise care for their own 

safety or the safety of others, or by reason of being under the 
12

influence of intoxicating liquor . . . interferes with or obstructs or 

prevents the free use of any street, sidewalk, or other public way” 

is guilty of disorderly conduct. The violation of the city ordinance 

and the violation of section 647(f) are both misdemeanors. 

(People v. Orozco (1968) 266 Cal.App.2d 507, 515, fn. 3.)

In enacting section 647(f), California adopted a general 

scheme for the regulation of the criminal aspects of being 

intoxicated in a public place, and local legislation has no control 

over what state legislation covers. (Koehne, supra, 59 Cal.2d 

at pp. 648–649 [Los Angeles ordinance that prohibited “be[ing] 

or appear[ing] in a state of drunkenness or intoxication” in any 

public place was “in conflict with the state law” and therefore 

void]; see also In re Zorn (1963) 59 Cal.2d 650, 651–652 (Zorn)

[same]; People v. Lopez (1963) 59 Cal.2d 653–654 (Lopez)

[affirming dismissal of misdemeanor prosecution under Pomona 

ordinance that punished “appear[ing] at or” being “in any public

place” “in a state of drunkenness or intoxication”].) As the 

Legislature intended to preempt the field, “a city ordinance 

attempting to make certain acts pertaining to intoxication in a 

public place criminal is in conflict with the state law and is void.” 

(Koehne, at p. 649.) A criminal charge or conviction under such 

a preempted municipal ordinance is therefore invalid. (Ibid.; 

Lopez at pp. 653–654; Zorn at pp. 651–652; see also People v. 

De Young (1964) 228 Cal.App.2d 331, 334–335, 337 [Santa 

Barbara ordinance prohibiting being in any public place or on any 

private premises in state of intoxication “ ‘to the annoyance of 

any other person’ ” was invalid; “Legislative enactments covering 

the criminal aspects of intoxication . . . are so extensive in their 

scope that they clearly show an intention by the Legislature 

to adopt a general scheme for the regulation of the subject.”].)
13

Plaintiffs contend C.M.C. section 4201 is preempted, and 

Deputy Billoups did not have reasonable cause to arrest them 

under section 647(f) because nothing in the record showed they 

were “unable to exercise care for [their] own safety or the 

safety of others,” or that they “interfere[d] with or obstruct[ed] 

or prevent[ed] the free use of any street, sidewalk, or other public 

way” as the state statute—but not C.M.C. section 4201—requires. 

We agree there is no evidence the deputies arrested plaintiffs for 

violating section 647(f). The deputies themselves admitted this, 

insisting Deputy Billoups arrested plaintiffs for violating C.M.C. 

section 4201.3

3 In their Government Code letter, as in their respondents’ 

brief, defendants assert, “The jury . . . impliedly did find, that 

the arrest of appellants had satisfied all elements of Penal Code 

section 647(f) under the authority of In re William G. (1980) 

107 Cal.App.3d 210, 214.” The sworn testimony of defendants’ 

own witnesses—most notably defendant Billoups himself—

flatly belies this assertion. As we have said, the trial court 

denied plaintiffs’ request that the court instruct the jury on 

the elements of a section 647(f) violation and the jury made 

no finding on the elements of that crime.

Defendants cite In re William G., supra, 107 Cal.App.3d

210. That case does not assist them. There, a deputy sheriff 

saw William G., a juvenile, “walking precariously along a public 

road,” “ ‘staggering very badly.’ ” The appellate court noted 

the officer had “grounds . . . to conclude [the minor] was unable 

to exercise care for his own safety.” (Id. at p. 214.) Here, none 

of the arrestees was “walking precariously along a public road.” 

Instead, they were sitting in a legally parked van (Hales), 

standing on a curb talking with passengers in the van (January), 

and sitting in a parked car (Carcamo). Billoups testified Hales 

was “slightly . . . off balance” and Carcamo was “swaying” as she 

got out of the car. Billoups testified under oath that Carcamo 
14

But C.M.C. section 4201 is a void law. In the trio of 

1963 cases we have cited, our Supreme Court held any and all

city ordinances criminalizing acts related to public drunkenness 

are preempted because they conflict with section 647(f), which 

preempted the field. (Koehne, supra, 59 Cal.2d at p. 649; 

Zorn, supra, 59 Cal.2d at pp. 651–652; Lopez, supra, 59 Cal.2d 

at pp. 653–654.) The arrests of plaintiffs were justified only if 

defendants can meet their burden to show the arresting officer

had probable cause, which is objectively reasonable cause 

to believe plaintiffs committed a crime. (Gillan, supra, 147 

Cal.App.4th at pp. 1044–1045; Roberts v. City of Los Angeles 

(1980) 109 Cal.App.3d 625, 629.) “California courts speak 

of ‘reasonable cause’ and ‘probable cause’ interchangeably.” 

(Cornell v. City and County of San Francisco (2017) 17 

Cal.App.5th 766, 786.) Can a law enforcement agency have 

objectively reasonable cause to believe plaintiffs committed 

a crime if deputies arrest them for violating a statute our 

Supreme Court declared void more than half a century ago? 

The answer is no.

In People v. McNeil (2002) 96 Cal.App.4th 1302 (McNeil),

Oakland police officers arrested Charnaye McNeil for violating 

a city ordinance that prohibited standing in the roadway in a 

manner that interferes with traffic. When the officers searched 

her, they found a significant amount of cocaine base. McNeil 

was charged with possession for sale and moved to set aside 

was not a danger or “safety concern” to herself or anyone else, 

nor was Hayes. When asked if January was a danger to himself 

or anyone else, Billoups answered, “I didn’t have any contact with 

January. So I have no idea.” He testified all three plaintiffs were 

arrested for violating the ordinance.
15

the information. The trial court granted the motion, ruling the 

municipal ordinance was preempted by state law and therefore 

void. (Id. at p. 1304.) The arrest and search were unlawful 

because “decades-old appellate decisions [held] virtually identical 

city ordinances to be void,” a conflicting state Vehicle Code 

section preempted the Oakland municipal code section, 

and “the officers had no probable cause to arrest defendant 

for violating it even if they believed in good faith that the 

ordinance was enforceable.” (Id. at p. 1305.) 

The McNeil court agreed. The California Supreme Court 

had invalidated “essentially identical” ordinances many decades 

earlier when it held the Vehicle Code reserved the subject of 

pedestrian conduct exclusively to the state, thus preempting 

all local ordinances regulating pedestrians. (McNeil, supra,

96 Cal.App.4th at pp. 1306–1307.) Because under long-standing 

controlling precedent the Oakland ordinance was unenforceable, 

the court distinguished the United States Supreme Court’s

holding in Michigan v. DeFillippo (1979) 443 U.S. 31, 37–38 

that the exclusionary rule does not apply to evidence obtained 

as a result of an arrest made in good faith reliance on a statute 

later found to be unconstitutional. (McNeil, at p. 1305.) That the 

controlling precedent did not specifically mention the Oakland 

ordinance did not matter. (Id. at p. 1307.) “The relevant case 

law did not turn on the particular wording of the local ordinances 

in question. It construed the statewide Vehicle Code, holding 

that it preempts and super[s]edes all local ordinances purporting 

to regulate the same subject matter.” (Ibid.)

McNeil also rejected the contention that the local ordinance

was still in the municipal code at the time of the arrest and so 

was presumptively valid from the point of view of the arresting 
16

officers, who “could not reasonably be expected to know that tort 

cases arising in distant counties had undermined the ordinance’s 

legal foundation.” (McNeil, supra, 96 Cal.App.4th at p. 1307.) 

“Fourth Amendment jurisprudence does not sanction blind 

enforcement of any statute that happens to appear on the 

books. . . . [T]he test in Fourth Amendment cases is not the 

good faith of the individual officer in the field, but the good faith 

of the law enforcement agency of which he or she is a part.” 

(Id. at p. 1308.) Forty years was enough time for the police 

department to learn that state law preempted the ordinance and 

to educate its officers. “That conclusion did not depend on any 

fine legal parsing or guesswork, but on the plain language of the 

state Vehicle Code, a body of law with which police officers are 

expected to be thoroughly conversant. Any possible doubt about 

the application of that language to the ordinance in question 

was settled decades ago.” (Id. at p. 1309.)

People v. Cox (2008) 168 Cal.App.4th 702 (Cox) agreed. 

The defendant was arrested for violating a Sacramento city 

ordinance that prohibited walking in the middle of the road 

if there was a sidewalk. Like the Oakland ordinance in McNeil,

it was preempted by the state Vehicle Code. The defendant’s 

conduct was lawful under the state statute, and so it could not 

be the basis for a lawful arrest. (Cox, at pp. 708–709.) The 

officer’s good faith belief that the city ordinance was enforceable 

did not render the detention objectively reasonable. (Id. at 

p. 710.) “[T]he officers here failed to comprehend the California 

Vehicle Code, something they are reasonably expected to know.” 

(Ibid.) Although the officer believed the local ordinance was good 

law, “neither the reasonableness of his belief nor the fact that 
17

his belief was held in ‘good faith’ is relevant in establishing 

the legality of defendant’s detention.” (Id. at p. 711.)4 

As in McNeil and Cox, the deputies here arrested plaintiffs

for violating a local ordinance essentially identical to ordinances 

our Supreme Court invalidated many decades ago because 

a conflicting state statute preempted them. The municipal 

ordinance remained—and may still remain—in the code. But 

even if Deputy Billoups believed C.M.C. section 4201 still was 

valid, his good faith belief is irrelevant to our determination of 

whether the arrests were legal.5 The sheriff’s department cannot 

4 The Cox court concluded the arrest was illegal but,

because the defendant then made the independent decision 

to flee and resist arrest, the taint was dissipated, and the trial 

court properly denied his motion to suppress the evidence that 

he resisted arrest. (Cox, supra, 168 Cal.App.4th at pp. 711-712.)

5 While any good faith belief on Billoups’s part does not 

render plaintiffs’ arrests reasonable or supported by probable 

cause, it may be relevant to Billoups’s personal liability for false 

arrest. Plaintiffs refer in their briefing to Government Code 

section 820.6. It provides, “If a public employee acts in good 

faith, without malice, and under the apparent authority of an 

enactment that is unconstitutional, invalid, or inapplicable, he is 

not liable for an injury caused thereby except to the extent that 

he would have been liable had the enactment been constitutional, 

valid, and applicable.” (Gov. Code, § 820.6; see generally

Gov. Code, § 820.4 [granting public employees immunity for 

nonnegligent acts in executing or enforcing laws but specifically 

exempting false arrest and false imprisonment from immunity]; 

Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 715, 

717, 719–721; Gillan, supra, 147 Cal.App.4th at pp. 1048–1049 

[Government Code section 820.4 preserved common law rule 

that public employee can be liable for false imprisonment].) 

It appears there was litigation about governmental immunity 
18

meet its burden to show its deputies had probable cause to arrest 

plaintiffs by relying on a void statute.

The trial court rejected plaintiffs’ preemption argument

in part because this is a civil rather than a criminal case. But 

probable cause for arrest in a criminal proceeding is the same 

as probable cause in a civil case for damages alleging false arrest. 

In McGowan v. City of San Diego (1989) 208 Cal.App.3d 890

(McGowan), McGowan was tried and convicted for driving under 

the influence. The municipal court had denied his motion to 

suppress on the ground his arrest was unlawful. McGowan then 

filed a civil complaint for damages against the city for false arrest 

and imprisonment, assault and battery, and violation of his civil 

rights (the latter two claims based on excessive force in taking 

his blood sample). The trial court granted the city’s motion for 

summary judgment, finding collateral estoppel barred the entire 

complaint. (Id. at pp. 893–894.)

The McGowan court agreed the denial of the suppression 

motion in the criminal case justified summary adjudication

on the false arrest claim in the civil action: “The finding of 

probable cause by the municipal court for the stop and arrest 

is dispositive of and conclusive on the issue of the false arrest 

since the probable cause in the criminal proceeding is identical 

to the probable cause required in a later civil complaint.”6 

in the trial court. None of that litigation is before us. The parties 

are of course free to litigate any governmental immunity issues 

on remand to the trial court.

6 The causes of action based on the continued detention 

and the taking of the blood sample survived, however, because 

the suppression motion made no findings on those issues. 

(McGowan, supra, 208 Cal.App.3d at pp. 895–896.)
19

(McGowan, supra, 208 Cal.App.3d at p. 896; see also Ayers v. 

City of Richmond (9th Cir. 1990) 895 F.2d 1267, 1271 [“threshold 

issue” in both arrest and later civil rights case was whether 

arrests were constitutional]; Levin, supra, 158 Cal.App.4th at 

pp. 1017–1018 [discussing reasonable or probable cause in civil 

action for false arrest interchangeably with Fourth Amendment 

authorities].)

Defendants do not argue we should not follow McNeil 

and Cox because probable cause has a different meaning in the 

civil context, nor do they explain how McGowan is wrong. They 

point out the Vehicle Code contains a section specifically stating

its provisions apply throughout the state, so local authorities 

may not enact their own ordinances on matters the code covers.

(Veh. Code, § 21.) And, they say, Penal Code section 647(f) is 

silent on preemption. But McNeil relied not on the Vehicle Code 

itself, but on Pipoly v. Benson (1942) 20 Cal.2d 366, 372. That 

case held local vehicle ordinances were preempted. McNeil 

cited what is now Vehicle Code section 21 only as evidence of 

the Legislature’s intent to preempt the field. (McNeil, supra, 

96 Cal.App.4th at p. 1306.) The holdings in Koehne, Zorn, 

and Lopez that the Legislature intended to preempt the field 

of regulation of public drunkenness are no less controlling.

A local ordinance of the kind the California Supreme Court 

held in 1963 was void as preempted by state law cannot meet 

law enforcement’s burden to show probable cause to defeat a 

plaintiff’s civil action for false arrest. As defendants insisted 

plaintiffs’ arrest was based solely on the preempted ordinance, 

the trial court erred when it instructed the jury that, if Billoups 

proved plaintiffs were “drunk in public, in violation of Carson 

Municipal Code section 4201, [this] would establish that 
20

Deputy Billoups had reasonable cause to believe that each 

of the plaintiffs had committed a crime in his presence, [and]

then Deputy Billoups had the authority to arrest the plaintiffs 

without a warrant.”

2. The erroneous instruction was prejudicial

In determining whether instructional error was prejudicial, 

a reviewing court evaluates “ ‘(1) the state of the evidence, (2) the 

effect of other instructions, (3) the effect of counsel’s arguments, 

and (4) any indications by the jury itself that it was misled’ ” 

to determine whether it is “reasonably probable” that erroneous 

instructions misled the jury. (Red Mountain, LLC. v. Fallbrook 

Public Utility Dist. (2006) 143 Cal.App.4th 333, 359; Soule v. 

General Motors Corp. (1994) 8 Cal.4th 548, 581, fn. 11; Bowman, 

supra, 186 Cal.App.4th at p. 304.) “A ‘reasonable probability’ 

in this context ‘does not mean more likely than not, but merely 

a reasonable chance, more than an abstract possibility.’ ”

(Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 682; College 

Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.) 

It is reasonably probable in this case that the erroneous 

instruction prejudicially affected the jury’s finding that Deputy 

Billoups had reasonable cause to arrest plaintiffs. As the trial 

court tacitly acknowledged, the evidence was more than sufficient 

to establish the elements of false arrest and “the only issue in 

[the] case [was] whether or not [Deputy Billoups] had probable 

cause to arrest.” Indeed, the jury found, consistent with the 

undisputed evidence, that Billoups arrested plaintiffs without 

a warrant. For his part, Billoups testified Carcamo was not a 

danger to herself or others, she was not blocking any public way, 

she did not obstruct traffic when she crossed the street, and,

therefore, he did not arrest her for a violation of section 647(f). 
21

Instead, Billoups was clear that he arrested plaintiffs for 

violating the preempted Carson ordinance. Consistent with 

that testimony, the court gave the jury the erroneous instruction, 

and the special verdict form asked the jury to decide whether 

“Deputy Billoups observe[d] each of the Plaintiffs drunk in public 

in violation of Carson Municipal Code [s]ection 4201 [which], 

if proved, would constitute reasonable cause to believe each of the 

Plaintiffs had committed a crime in Deputy Billoups’s presence?”

Because the instruction and special verdict form afforded 

no other basis to find Billoups had reasonable cause to arrest 

plaintiffs without a warrant, the erroneous instruction was 

plainly prejudicial and the judgment rendered on the jury’s 

special verdict findings must be reversed.7 (See Bowman, 

supra, 186 Cal.App.4th at pp. 304–305, 332.)

7 Because we have concluded the instruction erroneously 

stated a violation of the preempted Carson ordinance affords 

a basis for a reasonable cause finding, we need not address 

plaintiffs’ arguments challenging the admission of the defense 

expert’s testimony.
22

DISPOSITION

The judgment is reversed and the matter is remanded

to the trial court for further proceedings consistent with this 

opinion. Plaintiffs are entitled to their costs.

CERTIFIED FOR PUBLICATION

EGERTON, J.

We concur:

LAVIN, Acting P. J.

KALRA, J.∗

∗ Judge of the Los Angeles County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.