Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both such fine and imprisonment.
Penal Code 69 is similar to Penal Code 148(a)(1), misdemeanor resisting arrest, but it is more serious. It can be charged as felony, whereas resisting arrest is just a misdemeanor. Penal Code 69 criminalizes two separate types of conduct:
(1) Attempting, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law; and
(2) Actually resisting, by force or violence, such officer in the performance of his/her duty. People v. Hines (1997) 64 Cal. Rptr.2d 594
The first type of conduct deals with threatening or attempting to use violence on an executive officer. The executive officer does not actually have to be engaged in the performance of his duties.In Re Manuel G. (1997) 66 Cal.Rptr.2d 701, while the second type of conduct focuses on the actual use of force or violence. The discussion below should clarify the elements of this statute.
What is an executive officer? – Aar executive officer is defined as a government official who may use his or her own discretion in performing his or her job duties. Calcrim 2652. Examples include: police officers, judges, elected officials, district attorneys and public defenders.
What level of intent – current case law distinguishes which level of intent is required by which prong the case deals with. When the defendant is accused of merely making threats, it has been ruled that it is a specific intent crime.People v. Patino (App. 2 Dist. 1979) 156 Cal.Rptr. 815 ) When the conduct at issue actually deals with resisting by force or violence, it has been ruled to be a general intent crime. People v Rasmussen (App. 1 Dist. 2010) 117 Cal.Rptr.3d 588
Threats – the threat must be a threat of violence. (Beck v City of Upland (Cal.) 2008, 527 F.3d 853 ) A threat alone is sufficient, it does not have to be acted upon. (In Re Manuel) But it should be noted that one court has ruled that a threat, with no accompanying violence, constitutes a misdemeanor violation of this section, not a felony. (In re M.L.B. (110 Cal.App.3d 501)
Force or violence – this standard does not require that any injury actually occurred, merely a touching. It is the same standard used to prosecute for a Penal Code 242, the section that deals with battery.
Lawful Performance of duties – as seen in the resisting arrest statute, the main requirement is that the executive officer is actually in lawful performance of his/her duties. If the executive officer is acting unlawfully, then the defendant is not guilty. (In re Manuel) Under the first prong of this statute, it is important to note that the executive officer does not actually have to be engaged in the performance of lawful duties when the threat was made, as long as the threat was meant to deter the officer from performing a future duty. (In re Manuel)Examples of when an officer is not engaged in a lawful duty include excessive force, an unlawful arrest, or accepting a bribe.
Defenses – the defense are similar to those used in Penal Code 148 resisting arrest cases. These include:
(1) Unlawful arrest;
(2) Excessive force;
(3) Police Misconduct;
One court has even ruled that voluntary intoxication can be a defense. People v. Lopez (App. 6 Dist. 2005) 20 Cal.Rptr.3d 586
Penalties – Penal code 69 is a “wobbler offense,” meaning that it can be charged as a misdemeanor or a felony. It is generally in the prosecutor's discretion which level it will be. As discussed earlier, one court specifically stated that prosecution under the threats prong of this statute constitutes misdemeanor level conduct. In re M.L.B. (110 Cal.App.3d 501)
The statute itself states that Penal Code 69 “, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both such fine and imprisonment.” See the section on Penal Code 1170(h) for more information on this penalty.