Posted on July 31, 2015

California Penal Code § 69: Resisting an Executive Officer

In California, resisting an executive officer is a wobbler offense which means the prosecutor holds discretion to charge you with a violation of this offense as a felony or a misdemeanor. Factors the prosecutor will consider are: 1) your prior criminal history; 2) severity of the circumstances; 3) whether the police officer was injured and if so the level of injury. Prosecutors treat all crimes against police officers very seriously because they want officers to feel safe as they’re performing their duties in the field. Resisting an executive officer is similar to resisting arrest allegations only more severe. The difference between the two is that under this statute (P.C. § 69), a suspect used force or violence against the police officer whereas resisting arrest only requires an obstruction or delay however slight without the use of force or violence. If arrested under this statute, chances are the police will allege additional charges against you – i.e., assault and/or battery on a police officer, obstruction of justice, and disorderly conduct. If you have been arrested for resisting an executive officers, contact a Los Angeles Criminal Defense Lawyer at the earliest juncture. Early intervention by an attorney can mean the difference of being charged with a misdemeanor or felony, and/or county jail versus state prison.

Resisting an Officer Defined

In California, resisting an executive officer is defined under Penal Code § 69 which states, “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 under this statute.”

Elements of the Offense

In order for someone to be found guilty of resisting an executive officer, the prosecutor must prove each element beyond a reasonable doubt:

1. Defendant unlawfully used force or violence to resist an executive officer

2. When the defendant acted, the officer was performing their lawful duty

3. Defendant knew the executive officer was performing their duty

Legal Defenses

• The police officers did not have any probable cause or reasonable suspicion to detain you in the first place. The Fourth Amendment requires that law enforcement must be armed with reasonable suspicion or probable cause that you committed a crime in order for them to legally detain you for any reason. If the police did not have any suspicion, then the detention was illegal and a viable defense against this charge.

• The police officer was not lawfully acting within their permissible scope. In other words, the police officer may have been engaged in using excessive force against you and you were merely responding in self-defense against the officer’s unlawful force.

• You did not have a reasonable belief that the person was a police officer. Perhaps they were in plain clothes and working undercover and they never identified themselves as law enforcement and never showed you their badges. In order to be convicted under this charge, you must have knowledge, or reasonably should know, that the person who is effectuating your arrest is a police officer.

• The police officers are lying or exaggerating the circumstances. This is a common defense where if the police use excessive force against you, they will claim their force was justified because you were using “force or violence” against them. This is usually fabricated in order to avoid any civil liability against the police department or officers personally.

• You were not acting violently or using the degree of force required under this statute. Instead the incident could be a misunderstanding or perhaps the officers are fabricating the circumstances.

• The individual who you are accused of using force or violence against is not a law enforcement officer. In other words, the individual could be a security guard with no legal arresting power.

Penalties

If you are convicted of a misdemeanor under this offense, it is punishable by:

• Imprisonment in the county jail not exceeding 1 year

• Up to $10,000 in fines and fees

If you are convicted of a felony under this offense, it is punishable by:

• Imprisonment in California state prison for 16, 2, or 3 years

• Up to $10,000 in fines and fees

Preservation of Evidence

Do not always assume the police officers will collect all the evidence in the case and/or report the circumstances of your arrest accurately. The preservation of evidence is critical to defending against resisting arrest charges. One should not wait, but act quickly because evidence is susceptible to being deleted or lost over time. When physical injury occurs against a suspect, the police officers generally fabricate reasons to justify using such force. Consequently, all video and/or audio recording seems to disappear or “does not exist” according to the police officers. Therefore, the entire case rests on the police officers testimony versus any corroborating evidence. Below are some points critical to defending against resisting arrest charges:

• Photograph all injuries as early as possible. It’s best to show the judge or prosecutor fresh injuries versus older injuries that have long been healed. For instance, handcuff marks, scratches, scraps, bruises, dislocated arms / legs, etc. More often than not, the police officer will not take pictures if the arrest resulted in an injury in fear of a potential excessive force claim or lawsuit.

• Document all witnesses who were present at the location of the incident to allow a private investigator or attorney to contact those individuals to determine if they witnessed the incident and get their side of the story.

• Submitting notices to all neighboring businesses to preserve any audio or video recording surveillance which may have captured the event. With technology today, most people record incidences with their mobile device.

• Names and descriptions of any police officers involved in the incident. Sometimes police officers fabricate that they were alone or with a partner versus saying that there were 4 to 5 police officers effectuating your arrest or detention resulting in injury.

Los Angeles Defense Investigation

Defeating accusations of resisting a police officer with force or violence should require nothing less than a full detailed investigation of the circumstances. The Law Offices of John D. Rogers has access to numerous defense experts that will conduct their own independent investigation which law enforcement either intentionally omitted gathering or testing, or erroneous missed. Defense experts may include: private investigators with a prior background in law enforcement, former police officer training and tactics experts, medical doctors to examine any injuries received. Additionally, Mr. Rogers will file a motion in court in an effort to review the acting officer’s personnel record which consists of possible citizen complaints. Also known as a Pitchess Motion, any complaints made by persons who have fallen victim by the police officer’s excessive force may not only be substantially relevant, but exculpatory to defeating resisting a police officer accusations. For instance, if you were a victim of excessive force by a single or multiple police officers which ultimately led to your arrest for resisting an executive officer, there may be complaints made by individuals who have also fallen victim by the same police officer(s). This would show that the police officer(s) have a propensity to use excessive force against individuals arrested. The Law Offices of John D. Rogers will contact these individuals for their testimony in court to assist in getting the case dismissed or acquitted at trial.

Reduction to a Misdemeanor

If you were convicted of resisting an executive officer with force or violence as a felony, then hope is not lost. Fortunately, you may be eligible to reduce your felony to a misdemeanor pursuant to California Penal Code § 17(b). This requires a specific petition to be filed with the court, and if granted, then the conviction will be a misdemeanor “for all purposes” restoring all your rights including firearm ownership. Reducing a felony to a misdemeanor is a highly discretionary motion and you will need to present a valid reason for seeking reduction. Common examples of reasons for reduction are military, child custody, employment, and immigration. There are limitations and conditions that must be fulfilled prior to seeking reduction. For instance, if you were sentenced to state prison for this offense then you are not eligible for reduction. Additionally, if you suffered from any probation violations then that may decrease your chances of obtaining reduction. For more information, contact the Law Offices of John D. Rogers to discuss your eligibility to reduce your felony conviction of resisting an executive officer to a misdemeanor.

Expungement

If you suffer from a misdemeanor or felony conviction of resisting an executive officer then you may be eligible to expunge your record. Obtaining an expungement in California is made pursuant to Penal Code § 1203.4 where after a specific petition is filed with the court, the judge reopens the case and thereafter dismisses the conviction. From that moment forward, you will be released from “all liabilities and disabilities” as a result of the conviction. However, eligibility for obtain relief depends on a number of factors such as whether you have any probation violations, did you spend any time in state prison, have you paid all your fines and fees, and whether there are any outstanding / pending cases against you. For more information to discuss your eligibility to expunge your resisting an executive officer conviction, contact the Law Offices of John D. Rogers today for a free consultation.

Examples

Dan was at a group gathering at a Los Angeles park with approximately 100 people. Individuals in this crowd were drinking alcohol and having a good time. The LAPD arrives due to a noise complaint. The police officers exit their vehicles and begin to approach the 100 person crowd. While doing so, they inform everyone to leave the scene and go home. Dan, noticing the police officers were attempting to disperse the crowd, throws his can of beer over his head in the direction of the approaching police officers. The beer can nearly strikes a police officer. One of the officers observed Dan throw the can of beer and arrests him and charges Dan with a violation of P.C. § 69. In this case, Dan would arguably be liable for resisting an executive officer because he used force, the means of throwing the can in the direction of the approaching officers, to disrupt their duties of dispersing a disorderly crowd. The issue however is that Dan did not use this force to prevent the officers from detaining him.

Don was walking down the street in downtown Los Angeles when he was approached by police officers. The police officers observed Don to “look suspicious” and decided to detain him to see what he was up to. As they detained Don, the conversation became heated, and Don began to walk away from the officers. The officers yelled for Don to stop but he continued to walk. A police officer grabbed his baton and struck Don in the back. Don fell to the floor, but kicked the police officer in an effort to prevent the officer from striking Don again. The police officers immediately arrest Don for resisting an executive officer while using force. In this case, Don’s defense lawyer would argue that the police did not have enough probable cause or reasonable suspicion to detain Don in the first place as “looking suspicious” is not a crime, therefore, Don’s detention was illegal. Additionally, Don’s attorney would argue that Don only kicked the officer as a preventative measure to stop the officer from hitting him again even though Don posed no threat. Therefore, Don would not be guilty of resisting an executive officer.

Related Offenses

P.C. § 148: Resisting Arrest

P.C. § 245: Assault on a Police Officer

Contact Us for a Free Consultation

If you have been arrested, charged, or under investigation for resisting an executive officer with force or violence then contact Los Angeles Criminal Defense Attorney John Rogers at the Law Offices of John D. Rogers. Call 877-888-9820 for a free confidential consultation concerning your rights and defenses.

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