Opinion

Plaintiff, Leroy Griffith, appeals from a judgment for defendant, City of Monrovia, in an action for damages for personal injuries. The appeal is on a settled statement.

On July 14, 1979, members of the Monrovia Police Department responded to a call of shots being fired. At the scene, suspicion attached to plaintiff, who was placed under arrest, handcuffed, and walked a dis *Supp. 8 tance of 25 or 30 feet by a police officer to the rear seat of a police car. When so placed, plaintiff “began to make inquiries as to what was going on and became vocal. Between five and ten minutes after he was placed in the police car plaintiff began to kick, yell, and writhe around in the back seat of the police car while still handcuffed. At that time plaintiff was sprayed by Mace from a Monrovia policeman.” The spraying caused injury to plaintiff’s head, face and scalp.

Plaintiff filed a complaint against the City of Monrovia, alleging causes of action for battery and false arrest. At the conclusion of plaintiff’s case, the trial judge dismissed the false arrest cause of action on the ground that in the criminal prosecution, in which the charges were dismissed, a specific finding of probable cause had been made. He also dismissed the cause of action for battery, ruling that under section 844.6 of the Government Code, 1 plaintiff was a “prisoner” at the time of his alleged injury and the city was immune from tort liability.

On appeal appellant challenges only the ruling dismissing the battery cause of action.

No reported decision has defined the status of a person under arrest as being included within the term “prisoner,” as that word is used in section 844 of the Government Code 2 or as being excluded from that section.

In Dátil v. City of Los Angeles (1968) 263 Cal.App.2d 655 [ 69 Cal.Rptr. 788 ], a public entity employer was held to be not liable for the death of an individual who had been arrested, taken to the central jail and booked, and from there transported to another jail facility, where he was attacked by a fellow prisoner and killed. In defining the term “prisoner,” the Court of Appeal noted that section 844 uses the word “includes” and construed that word as evidencing a legislative intent to give a broad meaning to “prisoner.” It noted that a popular meaning of prisoner is a “person ‘under arrest,’ ‘in custody,’ ‘in jail,’ ‘in prison’ . . . .” ( 263 Cal.App.2d 655 at p. 659 .) Similarly, in Jiminez v. *Supp. 9 County of Santa Cruz (1974) 42 Cal.App.3d 407 [ 116 Cal.Rptr. 878 ], the Court of Appeal, in holding a county immune from an action for the alleged wrongful death of a ward of the juvenile court placed in a camp facility, followed the approach of Dátil.

Conversely, in Larson v. City of Oakland (1971) 17 Cal.App.3d 91 [ 94 Cal.Rptr. 466 ], the Court of Appeal gave an expressly narrow construction of section 844 in a personal injury action by one who had been struck in the face by a police officer before being placed under arrest. And in Patricia J. v. Rio Linda Union Sch. Dist. (1976) 61 Cal.App.3d 278 [ 132 Cal.Rptr. 211 ], a similar strict construction was given in circumstances of a juvenile offender who had been released to the custody of her parents.

More recently, in Meyer v. City of Oakland (1980) 107 Cal.App.3d 770 [ 166 Cal.Rptr. 79 ], the city appealed from a judgment for plaintiff who had been injured in an assault by a fellow inmate while under civil commitment to a jail facility for alcoholism. In rejecting the contention that the city was immune from liability, the Court of Appeal stated:

Support for the view that the Legislature, in defining the term “prisoner” in sections 844 and 844.6 intended to limit it to inmates of jails and other correctional facilities incarcerated as a part of the penal process is provided by contrasting those sections with Government Code section 845.8, as amended in 1970. (Stats. 1970, ch. 1099, § 8, p. 1958.) That section now provides in pertinent part: “Neither a public entity nor a public employee is liable for:

Since plaintiff in the present case, although under arrest, had not yet been incarcerated in a penal facility, we believe he was not a “prisoner” within the meaning of sections 844 and 844.6 of the Government Code. It was error, therefore, to rule that the City of Monrovia was immune from liability.

*Supp. 11 The judgment is reversed, with directions to grant to plaintiff a new trial on the battery cause of action.

Bernstein, P. J., and Rothman, J., concurred.

Section 844.6 provides in pertinent part:

Section 844 provides: “As used in this chapter, ‘prisoner’ includes an inmate of a prison, jail or penal or correctional facility.”