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Penal Code 148(a)(1) – Resisting Arrest

Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.

The statute above deals with the crime of resisting arrest.  Resisting arrest in California is a misdemeanor, punishable by up to one year in jail, and/or a $1000 fine.

In order to be found guilty of this offense, the prosecutor must prove the following elements:

(1) A peace officer (police officer, emergency medical technician, etc.)

(2) Was lawfully performing his/her duties or attempting to

(3) The defendant willfully restricted, obstructed or delayed the officer in the performance or attempted performance of those duties

(4) The defendant knew, or reasonably should have known, that the peace officer was performing or attempting to perform his/her duties. CalCrim 2656

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(1) A peace officer – the jury has to determine whether it was actually a government law enforcement officer. (People v. Brown (1988) 46 Cal.3d 432).For the legal definition of a peace officer, see Penal Code 830.

  1. A loss prevention officer and security guard would not apply here.

(2) Was lawfully performing his/her duties or attempting to –

  1. A peace officer is not lawfully performing his or her duties if he or she is:
    1. i. Unlawfully arresting or detain someone
    2. ii. Using unreasonable or excessive force in his or her duties CalCrim2656
  1. A peace officer is lawfully performing his or her duties if he or she is:
    1. i. Legally detaining someone
    2. ii. Legally Arresting someone
    3. iii. Legally using reasonable force to arrest or detain someone, to prevent escape, to overcome resistance, or in self defense  CalCrim 2670

(3)   The defendant willfully restricted, obstructed or delayed the officer in the performance or attempted performance of those duties

  1. Willfulness – someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. CalCrim2656
  2. Restrict, obstruct or delay – Examples of what has been found to have constituted this element:
    1. i. Flight from the officer. (In re Culver (1968) 69 Cal. 2d 898)
    2. ii. A person who goes limp and “requires the officer to drag or bodily lift and carry him in order to effect his arrest.” In re Bacon (1966) 240 Cal.App.2d 34
    3. iii. Attempting to intimidate another person into not talking to police. (People v. Green (1997) 51 Cal.App.4th 1433
    4. iv. Physically attacking a police officer who is engaged in lawful duties. (People v. Powell (App.1950) 99 Cal.App.2d 178

–Examples where the conduct was not found to obstruct restrict or delay:

(a) Not allowing police into your home to search for a juvenile suspect when they asked permission. People v Wetzel (1974) 113 Cal.Rptr. 32

(b) Refusing to provide personal information after arrest for a misdemeanor or infraction. People v. Quiroga (App. 1 Dist. 1993) 20 Cal.Rptr.2d 446

(c) Speech—arrest under Penal Code 148(a)(1) must be applied with great caution to speech. People v. Robles(super.1996) 56 Cal.Rptr.2d 369

(d) Complying slowly with the officer's orders.People v. Quiroga (App. 1 Dist. 1993) 20 Cal.Rptr.2d 446

(4)   The defendant knew, or reasonably should have known, that the peace officer was performing or attempting to perform his/her duties –

  1. This element doesn't just apply to whether or not the defendant had knowledge about whether law enforcement was performing their duties, but whether the defendant actually had knowledge they were peace officers. (People v. Lopez (1986) 188 Cal.App.3d 592
    1. i. Example – if someone is being chased at night, the prosecution has to prove that the defendant actually realized it was a police officer, and not just someone running at them.  As simple as this might seem, it can be tough element to prove.
    2. ii. Example – a citizen attempts to break up a fight between two people, when in reality one is a police officer not in uniform. The citizen would be not guilty of resisting arrest.

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Defenses – Looking at the elements of the offense, the defense can become obvious. The major defenses used when charged with resisting arrest are as follows:

(1)   Unlawful Arrest – In order to be guilty of resisting arrest, the arrest had to have been a lawful one. People v Wilkins (App. 3 dist. 1993) 17 Cal. Rptr.2d 743

  1. This can apply if the arrest was based on a unlawful detention.

(2)   Self Defense—you have a right to defend yourself. This defense is used when the officer used excessive force.

(3)   Police misconduct – if the police have a history of misconduct, this can be vital in showing that the arrest was not lawful or excessive force was used.  Normally, the criminal defense attorney will file a Pitchess motion in court to examine the personnel file of the officer.

(4)   Lack of knowledge – either that it was a peace officer, or that the peace officer was engaged, or attempting to engage, in performing a lawful duty.

(5)   Multiple Violations – the judge or jury has to not only agree that the defendant resisted arrest, but they must all agree on the actual act.

Resources:

People v. Powell (App.1950) 99 Cal.App.2d 178

People v. Quiroga (App. 1 Dist. 1993) 20 Cal.Rptr.2d 446

People v. Lopez (1986) 188 Cal.App.3d 592

Penal Code 69

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