Tip on Dealing with Resisting Executive or Police Officer - Penal Code section 69 in California

Sometimes an interaction with a police officer becomes heated and you find yourself or someone you know charged with resisting an executive officer under Penal Code section 69, which can be charged as a felony or  misdemeanor in California.

PC 69

Penal Code section 69 states, in relevant part, " 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 guilty of a crime. (Pen. Code, § 69.)

How PC 69 is violated 

Thus, the plain language of Section 69 indicates it may be violated in two separate ways. The first way it can be violated is when a person is accused of "attempts by means of any threat or violence to deter or prevent an executive officer form performing any duty imposed upon such officer by law." The second method it can be violated is by someone "who knowingly resists, by the use of force or violence, such officer in the performance of his duty." (Pen. Code, § 69.)

The Jury Instruction for resisting arrest, CALCRIM No. 2652, indicates the state must prove beyond a reasonable doubt these three elements:

1. The defendant [unlawfully] used force [or violence] to resist an executive officer;

2. When the defendant acted, the officer was performing (his/her) lawful duty;

AND

3. When the defendant acted, (he/she) knew the executive officer was performing (his/her) duty.

Ways to defend against a PC 69 Charge

Thus, to defend against this charge, a defendant or his or her criminal defense attorney must persuade the fact finder, usually a jury, that the state has not proven at least one of the three essential elements listed above. This can be done in a variety of ways.

(1) Lawful self-defense

Perhaps, the person was not resisting the officer, but instead, the person was using force or attempting to use force as an act of self defense. For example, in People v. Superior Court (Anderson) (1984) 151 Cal.App.3d 893, the Court of Appeal held that Penal Code section 69 only applies to threats of unlawful violence and not to threats of lawful conduct.

(2)  First-Amendment 

 Verbal disagreement over how an officer is performing job duties, even when delivered in a "belligerent" manner, is protected speech under the First Amendment (See, People v. Quiroga (1993) 16 Cal.App.4th 961, 966. )

(3)  Establish Officer was NOT performing a lawful duty at the time

 Also, if this was an encounter with a police officer, the state must establish that the officer was "performing a lawful duty. " (See, In re Manuel G. (1997) 16 Cal.4th 805, 816; People v. Gonzalez (1990) 51 Cal.3d 1179, 1217.)

(4)  Defendant did not know that person was an executive officer 

Also, if the officer was in plain clothes at the time of the encounter, an experienced criminal defense
lawyer might convince a jury that the person accused of resisting arrest was not aware that the person was an executive officer.

If Defendant Is Not a Citizen, Hire an Immigration Attorney 

In Flores-Lopez v. Holder (2012) 685 F.3d 857, the Ninth Circuit held that resisting arrest under Penal Code section 69 is not a categorical crime of violence which would make a person removable for an aggravated felony, specifically a crime of violence for which the term of imprisonment is at least one year. See 8 U.S.C. §§ 1227(a)(2)(A)(iii);1101(a)(43)(F). But the case was remanded to allow the Board of Immigration Appeals (BIA) to determine whether under the modified categorical approach, documents within the record establish whether a petitioner’s plea " ‘necessarily’ rested on the fact identifying the [offense] as generic." Shepard v. United States, 544 U.S. 13, 21 (2005.) Thus, there could be serious Immigration consequences to entering a plea to this charge and an Immigration attorney should be consulted.

Punishment for violating PC 69

In addition to any applicable Immigration consequences, a person who is found guilty of violating Section 69 is subject to "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, Pen. Code, § 69) This means that the prosecution has discretion to charge this crime as a felony or a misdemeanor.  If charged as a misdemeanor, the person faces up to a one thousand dollar fine and/or up to one year in county jail.  If charges as a felony, the person can be fined up to ten thousand dollars and/or punished by 16 months, 2 years or 3 years in a county jail.

Because this charge is a wobbler, a crime that can be charged as a felony or misdemeanor, if you are charged with a felony, you or your attorney can submit a motion to the court to ask the court to reduce this charge to a misdemeanor while the charge is pending.

Hire An Experienced Criminal Defense Attorney 

Of course, for all misdemeanors and felonies, we highly recommend that you hire an experienced criminal defense attorney or ask for the assistance of the Public Defender if you cannot afford to hire a lawyer.
　

copyright © 2016 by Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney- client relationship is only established when a written retainer has been signed.

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