Filed 9/3/21 CERTIFIED FOR P UBLI CATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

L A SHUN CARCAMO et al.,

Plaintiff s and Appellant s ,

v.

LOS ANGELES COUNTY SHERIFF ’ S DEPARTMENT et al.,

Defendant s and Respondent s

. B296666

Los Angeles County Super. Ct. No. TC028076

APPEAL from a judgment of the Superior Court of
Los Angele s Count y, Mark C. Kim, Judge. Reversed and
remanded

.

Law Office of Erik C. Alberts and Erik C. Alberts for
Plaintiffs and A ppellants.

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 crimi nal aspects of being intoxicated in a public place .” ( In re Koehne (1963) 59 Cal.2d 646, 64 8 ( Koehne ).) That general scheme
is encompassed in Penal Code section 647, subdivision (f) (section 647(f))

. Stating, “Whenever the Legislature has seen
fit to ad opt 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 proh ibited being or appearing “ ‘ in a state of drunkenness or
intoxication ’ ” “ ‘ in a ny public place .’ ” ( Koehne, at p p . 64 7

– 648

. ) Notwithstanding decades of clear Su preme Court authority,
as of at least February 2014 the City of Carson had on its books

a “pu blic intoxication” ordinance that purport s to criminal ize
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 intoxicat ion unde r 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 plaintif fs appeal. We reverse

.3 BACKGROUND
P laintiffs 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 t he 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 201 4 Hales and his half

- brother Kelton Jolly

wer e 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 no t 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 Ang eles (1997) 15 Cal.4 th 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 . T wo 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 deputie s 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 prin ts 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 t alking 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.
W hen 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 female5 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 Hol land 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 r eason 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 sm ell 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 c ar, Billoups ordered Hales

out o f the van to investigate po ssible 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

c ar parked on the other side of the street

. S he walked across
the street to the sidewalk behi nd 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

a sked Carcamo if she had been drinking and she answered she
had had a few beers or a few drinks with her boyfriend at dinner.
Billou ps 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. B illoups acknowledged those were the elements for a violation of section 647( f ) , but he didn’t arrest p laintiffs for violating the Penal Code;
he arrested them for violating the Carson ordinance. A violation
of C.M.C. s ection 4201 required only that a pers on be intoxicated in public in the C ity 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 n one of the plaintiffs was belligerent ; t hey we re 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 arres ted 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. s ection 4201 included being drunk in p ublic in a vehicle. To violate section 647(f) one

wo uld 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 read ing 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 i n the neighborhood and saw behavior consistent with burglarizing the van. Anything in plain sight
the deputies then observed that “approximate [ d ] ” an other crime
allowed them to proceed to the next step. Here

, the deputies

saw obje ctive symptoms of intoxi cation 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 had8 a reasonable suspicion of a violati on

— 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 se e 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 c ounsel emphasized Billoups’s testimony had made c lear 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 viol ation

— in this instance, the Carson Code municipal violation

— even if the court is persuaded that criminally9 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 base d on the belief that the Carson Municipal Code had been violated.”
The court then referred to search warrants and U nited S tates

v. Leon (1984) 468 U.S. 897. After hearing from defense counsel, the court stated, “Directed verdict is denied because the Ca rson 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 Muni cipal 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 th ese quest ions : “Did De puty Larry Billoups arrest [ plaintiffs] without a warrant?” and “Did Deputy Billoups observe each of the Plaintiffs drunk in public in violation of10 Carson Municipal Code [ s ] ection 4201 that, if proved, would
constitute reas onable cause to believe each of the Pla i ntiffs
had committed a crime in Deputy Billoup s ’s presence?”
The court entered judgment in favor of the sheriff’s department and Deputy Billoups.
P laintiffs filed a timely appeal from the judgment. After oral argu ment, 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.4 th 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 cou rt 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 th e 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 motivations11 or beliefs should play no role . . . .” ( Gillan, at p. 1045; Levin v.
United Air L ines , Inc. (2008) 158 Cal.App.4th 1002, 1018 ( Levin ) .)
T he court gave the jury the following instruction regarding Billoups’s asse rted 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 drun k 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 pl aintiffs
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 p erson, 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 te rritory of the City of Carson, whether such person is or is not in or upon any automobile,

street or interurban car , vehicle or conveyance.” Sec tion 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 the12 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.)
I n 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 cover s . ( 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] ; s ee 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
L egislature 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 ; s ee 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 the ir scope that they clearly show an intention by the Legislature

to adopt a general scheme for the regulation of the subject

. ”]. )13 P laintiffs contend C.M.C. section 4201 is preempted, and Deputy Billoups did not have reasonable cause to arrest them
under se ction 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 p laintiffs 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 . . . impli ed ly did find, that the arrest of app ellants 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 unabl e to exercise care for his own safety.” ( Id . at p. 214.) Here, none of the arrestees was “walking precariously along a public road.” Instead, t hey were sitting in a legally parked van (Hales), standing on a curb talking with passengers in the van (Janua ry), 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 Carcamo14 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 p p

. 653

– 654 .) The arrests of plaintiffs were justified only if
defendants can meet their burden to show the arresting offi cer had probable cause, which is objectively reasonable cause

to believe plaintiffs committed a crime. ( Gillan

, supra , 147 Cal.App.4 th at p p

. 1044

– 1045 ; Roberts v. City of Los Angeles (1980) 109 Ca l.App.3d 625, 629 .) “California courts speak
of ‘reasonab le 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?
T he 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 prohibit ed 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 anyon e 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 gra nted 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 confli cting 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 M cNeil 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 ordinance s regulating pedestrians. ( McNeil , supra, 96 Cal.App.4th at p p . 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. DeFill ippo (1979) 443 U.S. 31, 37

– 38 that the exclusionary rule d oes 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. 130 5 .) T hat the controlling precedent did n ot specifically mention the Oakland
ordin ance 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 supe r [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 arresting16 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
fin e legal parsing or guesswork, but on the plain la nguage 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.) Peopl e v. Cox (2008) 168 Cal.App.4th 702 ( Cox ) agreed.
The defendant was arrested for violating a Sacramento city
ordinance that prohibit ed walking in the middle of the road
if there was a sidewalk . L ike the Oakland ordinance in McNeil

, it was preempted by th e 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 det ention 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 that17 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 . B ut even if Deputy Billoups believed C.M.C

. section 4201 still was valid, his good faith belief is irrelevant to our determination of
whe ther the arrest s were legal. 5 The sheriff’s department c an not

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.4 th 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 ref er in their briefing to Government Code section 82 0 .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 inju ry caused thereby except to the extent that he would have been liable had the enactment been constitutional, valid, and applicable. ” (Gov

. Code, § 820.6 ; s ee generally Gov. Code, § 820.4 [granting public employees immunity for nonnegligent acts in executi ng 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.4 th at pp. 1048

– 1049 [Government Code section 820.4 pr eserved common law rule that public employee can be liable for false imprisonment].) It appears there was litigation about governmenta l immunity18 meet its burden to show its deputies had probable cause to arrest plaintiffs by relying on a void statute. The trial court rejected plaintiff s ’ 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 . T he municipal court had denied his motion to suppress on the ground his arrest was unlawful. McGowan then
file d 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 f orce in taking
his blood sample )

. The trial court granted the city’s moti on 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 civi l 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 ca u se in the criminal proce e ding 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 gov ernmental 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 , 20 8 Ca l.App.3d at pp. 895

– 896.)19 ( McGowan , supra, 208 Cal.App.3d at p. 896 ; s ee also Ayers v. City of Richmond ( 9 th Cir. 1 990) 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.4 th at

pp. 1017

– 1018 [discussing reasonable or probable cause in civil
action for false arrest interchangeably with Fourth Amendment authorities] .)
D efendants do not argue we should not follow McNeil
and Cox because probable cause has a diff erent meaning in the
civil context

, n or 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 mat ters the code cover s

. (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. 130 6

. ) The holding s in Koehne

, Zorn,
and Lopez that the Legislature intended to preempt the field
of regulation of public drunk enness 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 pla intiff’s civil action for false arrest. As defendants insisted plaintiffs’ arrest was based solely on the preempted ordinance

, t he t rial court erred when it instructed the jury that, if Billoups proved plaintiffs were “drunk in public, in violation of Car son Municipal Code section 4201, [this] would establish that20 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,

an d (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.
Ge neral 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.’ ” ( Kinsm an 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 re asonable 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 ar rest.” 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, t he 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, woul d 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 witho ut 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 t he defense expert ’s testimony.22 DISPOSITION The judgment is reverse d and the mat ter is remand ed

to the trial court for further proceedings consistent with this opinion

. P laintiffs 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.