California Penal Code 148(a)(1) PC describes the crime that is most commonly referred to as "resisting arrest." In fact, though, the law covers a much wider range of behavior than just fighting off an attempt to arrest you.
California's "resisting arrest" law prohibits you from willfully
- Delaying, or otherwise
a law enforcement officer or emergency medical technician (EMT) while s/he is performing (or attempting to perform) his/her duties.1
These duties can include arresting someone...but can also include a wide range of other activities as well, such as:
- Traveling to the scene of a crime or accident,
- Interviewing people to investigate a crime, and/or
- Monitoring a criminal suspect who is in custody.
So as you can see, the California crime of resisting arrest can encompass a wide range of behavior. Some examples are:
- Struggling with police officers who are attempting to put handcuffs on you,
- Jeering at police officers who are attempting to arrest a friend of yours, and
- Giving a false name to police officers who are questioning you about a crime.
The crime of California resisting arrest is a misdemeanor. The penalties for resisting arrest may include up to one (1) year in a county jail and/or a maximum one thousand dollar ($1,000) fine.2
Even though this may seem like a relatively minor offense, it is important to fight your "resisting arrest" charges. Having a Penal Code 148 PC conviction on your record is sure to turn any future police encounter into a negative one.
Possible legal defenses to resisting arrest charges include:
- Your arrest was wrongful and/or the police were engaged in
- You were acting in self-defense, and
- You were falsely accused.
In order to help you better understand Penal Code 148(a)(1) PC, California's resisting arrest statute, our California criminal defense attorneys3 will address the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
You may also find helpful information in our related articles on Legal Definition of a Misdemeanor in California Law; Explanation of California Probation Laws; Common Legal Defenses to California Crimes; Police Misconduct and Civil Rights Violations; Pitchess Motions: How it Works; California's Self-Defense Laws as a Legal Defense; Legal Definition of an Infraction in California Law; Penal Code 602 PC California's Trespassing Law; Penal Code 415 PC California's Disturbing the Peace Law; Penal Code 240 PC California Assault; Penal Code 243(b) PC Battery on a Peace Officer; California's "Resisting an Executive Officer" Law Penal Code 69 PC; Vehicle Code 2800.1 Misdemeanor Evading Arrest; Vehicle Code 2800.2 VC California's "Felony Reckless Evading" Law; California Penal Code 148.3 PC False Report of an Emergency; California Penal Code 148.4 PC Making a False Fire Alarm; California Penal Code 148.5 PC Making a False Report of a Crime; California Penal Code 148.9 PC False Identification to a Police Officer; Penal Code 185 PC Wearing a Mask to Evade Police; and Penal Code 402(a) PC Sightseeing at an Emergency.
The legal definition of California "resisting arrest" revolves around three facts (known as "elements of the crime"). For you to be guilty of this offense, the prosecutor must be able to prove all three elements of the crime of resisting arrest. These are:
- that there was a peace officer, public officer, or emergency medical technician ("EMT") lawfully performing or attempting to perform his/her duties,
- that you willfully resisted, obstructed, or delayed him/her in the performance or attempted performance of those duties, and
- that you knew or reasonably should have known that s/he was an officer or EMT engaged in those duties.4
Let's take a closer look at some of these terms and phrases to gain a better understanding of the legal definition of resisting arrest.
You act willfully when you commit an act willingly or on purpose. It doesn't matter if you don't intend to break the law or hurt someone else . . . as long as the act is intentional.5
Example: A police car is involved in a high-speed chase of a suspect's car. Will is driving his car in the area and playing his stereo very loud, so he doesn't hear the siren on the police car and fails to pull over as it approaches. But when he sees the police car coming up behind him, Will panics and brakes suddenly. This causes the police car to crash into his car.
Will has certainly obstructed the police in their pursuit of the suspect. But he did not do so willfully, and so he is not guilty of resisting arrest.
Resist, delay, or obstruct
A wide variety of activities can resist, delay, or obstruct an officer or EMT in the performance of their duties.
When most people think of "resisting arrest," they think of physical acts of resistance, such as
- Running away or hiding from police, or
- Struggling or physically resisting while being handcuffed or put into a police car or cell.
But verbal acts . . . and other less obvious things . . . can also result in Penal Code 148 PC resisting arrest charges.
Example: Store security guards catch Christopher shoplifting some clothing. The guards detain Christopher and call the police. When the police arrive, Christopher identifies himself by a false name and continues to give police that false name after he is taken the police station. The police discover his true identity only after they run his fingerprints.
The act of giving a false name to police officers is a form of obstructing them in the performance of their duties . . . and Christopher is therefore guilty of resisting arrest.6
Example: Richard is being arrested on drug charges. The police have put him in the back of a squad car, and they are engaged in processing Richard's car.
Muhammed is Richard's friend. He walks by the place where all this is occurring, goes up to the police car, and tries to talk to Richard. When the police tell him to step away, he ignores them and keeps talking to Richard. The officers who are working on processing Richard's car are forced to come intervene in the situation.
Muhammed has committed the crime of Penal Code 148(a)(1) "resisting arrest"...because his behavior delayed the police investigation of Richard and his car.7
Here is another example that illustrates how tricky the definition of the crime of "resisting arrest" can be.
Example: Armando is at a party that is raided by police. The police catch him with a vial of cocaine. The police place Armando under arrest, take him to the station in their police car, and book him. The entire time, Armando refuses to give them his name. Eventually someone at the police station recognizes him...and the officers find out his identity that way.
Armando is not considered to have obstructed the officers in their duties by refusing to give his name while he is in the police car being taken to the station.8 BUT he is guilty of resisting arrest for refusing to give his name once he was at the station and his arrest was being booked.9
The reasoning here is that the officers didn't actually need to know Armando's name until he was being booked. They didn't need it to arrest him or take him to the station. But once the booking process began, Armando's failure to give his name did delay or obstruct the law enforcement process.10
It is important to note that you are not guilty of "resisting arrest" if you merely criticize, swear at, or voice your displeasure with the police...as long as you are not using "fighting words" (words that pose an immediate threat of violence) in violation of California's "disturbing the peace" law .11
Engaged in the lawful performance of his/her duties
To be "engaged" in the performance of duties means the peace officer, public officer, or EMT is engaged in some activity that falls within their job description12 . . . AND is performing that activity in a "lawful" way.13
So an officer or EMT may be engaged in the lawful performance of his/her duties if s/he is:
- making (or attempting to make) a lawful arrest,
- detaining (or attempting to detain) a person for questioning,
- using reasonable force in an effort to (1) conduct a lawful detention, or (2) make an arrest,
- attempting to administer basic life support (in the case of an EMT), and/or
- responding to the scene of a law enforcement problem or an accident.
What if the officer was performing his/her duties in an unlawful way...for example, by using excessive force or engaging in police misconduct? In that case, you cannot be found guilty of resisting arrest if you obstruct the officer in those activities.14
We will discuss that scenario in more detail in Section 3 (Legal Defenses Against "Resisting Arrest" Charges) below.
Knew or reasonably should have known
You are not guilty of resisting arrest unless you knew . . . or reasonably should have known . . . that the person whose activities you delayed or obstructed actually was an officer or EMT performing his/her duties.15
Whether or not you "knew or reasonably should have known" this will be judged objectively. This means that the judge and/or jury will consider whether a "reasonable person" in your shoes...at the time of the offense...would have been aware of this fact.16
Some considerations that may help the court determine if this was the case include:
- whether the officer or EMT was in uniform,
- whether the officer was trying to handcuff you or another suspect, or
- whether the individual was driving in a recognized "official" car, such as a marked police car or ambulance.
Other subdivisions of Penal Code 148 PC
In addition to Penal Code 148(a)(1) PC - California's "resisting arrest" statute - there are actually several other subdivisions to California Penal Code 148 PC that define different crimes.
Penal Code 148 PC also makes it a crime to
- maliciously and knowingly interrupt or interfere with communication over a public safety radio frequency, or
- take a gun or other weapon from an officer while resisting arrest.17
If you commit the second of these two crimes, you may face felony.18
Penal Code 148 PC, California's resisting arrest law, is a misdemeanor in California law. If convicted on resisting arrest charges, you may face
- up to one (1) year in county jail,
- a maximum one thousand dollar ($1,000) fine,19 and/or
- probation under California's probation laws . . . which essentially authorize judges to impose any probation conditions that they see fit, as long as they are logically related to the circumstances of the offense.20
There are several legal defenses to a Penal Code 148 PC California "resisting arrest" charge that your criminal defense lawyer could present on your behalf. Some of the most common of these defenses include (but are not limited to):
The arrest was unlawful / police misconduct
If you physically resist, delay, or obstruct an unlawful law enforcement procedure, you are not guilty of this offense. This is because an officer is under no duty to perform an unlawful arrest...and isn't therefore "engaged in the performance of his/her duties" when s/he does so.21
Forms of unlawful behavior that police often engage in-otherwise known as police misconduct-include:
- Arresting someone without either an arrest warrant or probable cause to make an arrest,
- Entering someone's home without a warrant or permission to do so,
- Racial profiling, and
- Using unreasonable force.22
Example: Police break down Rick's door while he is home. They don't announce themselves, have no warrant, and begin ransacking Rick's home as they look for drugs. Nonetheless, they handcuff Rick and transport him to the station. Rick struggles with the officers physically and ends up breaking one of their ribs.
Because the officers were engaged in illegal activity and Rick was only resisting an unlawful arrest . . . he is not guilty of guilty of violating California's resisting arrest law.
When the officer you are supposed to have resisted is suspected of police misconduct, your California criminal defense lawyer may file what is known as a "Pitchess motion." A "Pitchess motion" is a request for information contained in the arresting officer's personnel file.23
As Whittier criminal defense attorney Nicole Valera24 explains:
"We file a Pitchess motion when we believe that you were wrongly arrested based on allegations that the officer either made up or enhanced. And when we find a history of complaints or misconduct against that officer, it can often result in a reduction of your charges or an outright dismissal of your case."
Similarly, if you resist an officer who is using excessive force against you, you are entitled to exercise your right to defend yourself.25
This legal defense against resisting arrest charges is due to California's self-defense laws. The legal defense of self-defense will protect your conduct as long as
- You used no more force than you believed was reasonably necessary to protect yourself from the officer, and
- You used no more force than a reasonable person in the same situation would have believed was necessary to protect him/herself.26
Example: Let's return to the example of Rick from above. Suppose one of the officers who is searching Rick's home begins beating Rick to force him into telling the officers where he keeps his drugs. Rick may then use whatever amount of force is reasonably necessary to protect himself without violating California's resisting arrest law.
But it's important to note that . . . if the officer or EMT's use of excessive force is in response to your unjustified physical acts of resisting, delaying, or obstructing an otherwise lawful procedure . . . then you may not rely on self-defense as a legal defense.27
Example: Let's return to Rick yet again. This time let's assume the police actually do have a warrant to enter his house. Once inside, they find illegal drugs and then place Rick under arrest. If Rick attacks the officer who is trying to handcuff him...which leads the officer to use more force than is necessary to subdue Rick...an "excessive force" claim would not prevent Rick from being convicted of resisting arrest.
A California "resisting arrest" allegation is often a trumped-up charge. You may be cited for California Penal Code 148(a)(1) PC because you were simply dismissive, uncooperative, or rude.
Police, like anyone else, experience anger and sometimes seek revenge. But unlike everyone else, police are in a position of authority where they can readily abuse that power.
Eyewitness accounts, tape recordings, and independent investigators are useful tools that help expose false allegations for what they really are. And our firm of former cops and prosecutors know the most effective ways to utilize these tools to help prove your innocence.
Charge reduction/plea bargaining
If the facts are simply too strong to overcome and none of the above defenses applies . . . your criminal defense attorney still may be able to at least reduce the charge to a lesser offense.
Given that California resisting arrest penalties involve no minimum fine or jail sentence...it may seem odd to negotiate for a lesser charge.
However, there are several charges that may be preferable because they
- carry a lower maximum jail sentence (instead of a one-year maximum),
- can be charged as misdemeanors or as less-serious infractions, and
- carry less of a social stigma than a "resisting arrest" conviction.
One lesser charge that might make sense as a reduction from "resisting arrest" is Penal Code 602 PC California's trespassing law. This law makes it a crime to enter or remain on someone else's property without authorization.28
Another possible charge reduction from "resisting arrest" charges is Penal Code 415 PC California's disturbing the peace law. This law prohibits behavior such as fighting in public, willfully making unreasonable noise, and using "fighting words"-that is, words likely to lead to a threat of violence.29
One nice thing about disturbing the peace as a charge reduction is that it carries a maximum jail sentence of only ninety (90) days.30
As a result, it is often advisable to plead guilty to these charges in lieu of a Penal Code 148 PC offense.
There are a variety of California criminal offenses that, depending on the circumstances, may coincide with a "resisting arrest" charge. In certain situations, you may end up facing charges both for Penal Code 148(a)(1) PC "resisting arrest" and for one of these other crimes.
If you are charged with resisting arrest for behavior that involves physical force, you may also find yourself facing charges for Penal Code 240 PC California assault.
The crime of assault can be a bit difficult to understand. Basically, it consists of an unlawful attempt...which you are presently capable of carrying out...to inflict violent injury on another person.31 There is no requirement that you actually inflict an injury or even make contact with the "victim."
For example, if you lunged at a police officer who was trying to arrest you, and his partner restrained you, you may be charged with both resisting arrest and California assault.
Assault in California is a misdemeanor. When it is committed against a police officer or EMT engaged in the performance of their duties, the maximum penalties are up to one (1) year in county jail and a maximum two thousand dollar ($2,000) fine.32
If physical force is involved in your resisting arrest case, you may also be looking at Penal Code 243(b) PC battery on a peace officer charges.
A battery is defined as any willful and unlawful use of force or violence on another person.33 The difference between assault and battery is that battery requires that you actually use force or violence against someone else...rather than simply attempting to do so.
When battery is committed against a peace officer or EMT, it is considered "battery on a peace officer," a misdemeanor offense. The maximum penalties are up to one (1) year in county jail, a fine of up to two thousand dollars ($2,000), or both.34
And if the "victim" suffers any kind of great bodily injury, then felony penalties, including a jail term of up to four (4) years, may apply.35
California's "resisting an executive officer" law Penal Code 69 PC makes it a crime to
- Use any threat or violence to attempt to prevent an "executive officer" from performing his/her duties, or
- Use force or violence to knowingly resist an executive officer in the performance of his/her duties.36
This offense is broader than California Penal Code 148(a)(1) PC in that it applies to all executive officers (which includes police officers). An "executive officer" is any employee who is responsible for enforcing the law. But it is narrower than "resisting arrest" in that it only applies to situations where threats, force, or violence were used.
California courts have held that California Penal Code 148 PC resisting arrest is a so-called "lesser included charge" of the second offense listed in Penal Code 69 PC above.37 This is important because it means that you can't be punished for both crimes . . . only one or the other.
Obstructing or resisting executive officers is a wobbler, which means that it can be charged as either a misdemeanor or a felony.38
The crime of evading arrest...also known as "evading an officer"...is actually two separate offenses.
The first is Vehicle Code 2800.1 VC misdemeanor evading arrest. This law makes it a crime to willfully flee a pursuing police officer in a car, with intent to avoid being apprehended. This form of evading arrest is a misdemeanor punishable by up to one (1) year in county jail.39
The second is Vehicle Code 2800.2 VC California's "felony reckless evading" law. This law forbids you from fleeing a police officer in your car and driving recklessly . . . that is, in a way that shows a serious disregard for the safety or property of others . . . as you do so.40 This offense can be charged as a misdemeanor . . . OR as a felony with a potential state prison sentence.41
If you willfully evade an officer in your car, you are arguably resisting, delaying, or obstructing the officer in the performance of his/her duties. Thus, you may be charged with either of these crimes along with Penal Code 148(a)(1) PC resisting arrest.
California Penal Code 148.3 PC false report of an emergency makes it a misdemeanor to falsely report to a government agency that an "emergency" exists.42
Similarly, California Penal Code 148.4 PC making a false fire alarm makes it a misdemeanor to tamper with any fire alarm equipment or to make a false report of a fire (either by setting off an alarm or otherwise).43
Plus, if great bodily injury or death occurs as a result of the defendant's actions, then these offenses become felonies.44
If you commit either of these offenses, you may be charged both with making a false report of an emergency or fire and with resisting arrest. This is because a false report of an emergency or fire could take police officers or EMTs away from their other duties...and so lead to a reasonable argument that you willfully delayed or obstructed them in the performance of their jobs.
A similar offense related offense is California Penal Code 148.5 PC making a false report of a crime. This law prohibits knowingly making a false report of a criminal matter to a
- Police or peace officer,
- Grand jury, or
- Other government employee whose job involves accepting such reports (such as a 911 operator).45
Falsely reporting a crime under Penal Code 148.5 PC is a misdemeanor.46
If you falsely report that a crime has occurred, or give the police false information about a crime, you may be charged both with this offense and with Penal Code 148(a)(1) PC resisting arrest. The reason, again, is that the police may argue that your false report obstructed them in the proper performance of their duties.
As we discussed above, falsely identifying yourself to a police officer can lead to charges of Penal Code 148 PC resisting arrest.
That same behavior can also lead to charges of the related offense of California Penal Code 148.9 PC false identification to a police officer. This statute makes it a misdemeanor to give a law enforcement officer a fake name in order to either
- evade court process, or
- avoid proper identification by the officer,
when you are being lawfully detained or arrested by the officer.47
So if you give someone else's name or a fake name to a police officer upon being lawfully detained...you may face charges for both this crime and resisting arrest.
If you wear a mask or personal disguise either to avoid recognition while or after you commit a crime, or to conceal your identity after you have been charged with or arrested for a crime, then you can be charged with Penal Code 185 PC wearing a mask to evade police.48
In situations where defendants are trying to avoid lawful detention for a crime using a disguise, they may find themselves facing charges under both PC 185 and PC 148(a)(1).
Penal Code 402(a) PC sightseeing at an emergency is the crime of going to or stopping at the scene of an emergency to see what is going on, and impeding police officers, firefighters, emergency medical personnel, etc., in the performance of their duties at the emergency.49
Sightseeing at the scene of an emergency is a misdemeanor, with a maximum county jail sentence of six (6) months.50
Because the maximum sentence is shorter, and because this crime probably carries less of a stigma on a criminal record, sightseeing at an emergency can be a helpful charge reduction from resisting arrest.
As we discussed in Section 3 above, you should not be criminally liable for Penal Code 148(a)(1) PC resisting arrest if you fought back against a police officer who was behaving unlawfully.
Unfortunately, this situation occurs in California every day: a police officer tries to detain someone unlawfully, or uses excessive force in making a lawful arrest...and, when the person tries to fight back, the officer adds insult to injury by slapping "resisting arrest" charges on them. One study found a significant pattern of police officers in San Jose filing resisting arrest charges after using force . . . often excessive force . . . on a suspect.51
If you are the victim of this sort of police misconduct, fighting the resisting arrest charge may be only half the battle. An experienced criminal defense and civil rights attorney can help you determine whether it also makes sense for you to file a complaint or even a civil rights lawsuit against the officer or the department he works for.
Call us for help...
If you or loved one is charged with Penal Code 148(a)(1) PC resisting arrest and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
For more information on Nevada's resisting arrest laws, visit our page on Nevada's resisting arrest laws.
1Penal Code 148(a)(1) PC - Resisting, delaying or obstructing officer or emergency medical technician [Resisting arrest]. ("(a)(1) 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.")
2 See same, Resisting arrest.
3 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
4 Judicial Council of California Criminal Jury Instructions ("CALCRIM") 2656 - Resisting Peace Officer, Public Officer, or EMT (Pen. Code, § 148(a)) [Resisting Arrest]). ("To prove that the defendant is guilty of this crime, the People must prove that: 1 <insert name, excluding title> was (a/an) (peace officer/public officer/emergency medical technician) lawfully performing or attempting to perform (his/her) duties as a (peace officer/public officer/emergency medical technician); 2 The defendant willfully (resisted[,]/ [or] obstructed[,]/ [or] delayed) <insert name, excluding title> in the performance or attempted performance of those duties; AND 3 When the defendant acted, (he/she) knew, or reasonably should have known, that <insert name, excluding title> was (a/an) (peace officer/public officer/emergency medical technician) performing or attempting to perform (his/her) duties.")
5 See same, Resisting Arrest. ("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.")
6 People v. Christopher, (2006) 137 Cal.App.4th 418, 428. ("Quiroga is distinguishable. Here, Christopher did not simply refuse to disclose his identity. The undisputed evidence shows that he, unlike the defendant in Quiroga, affirmatively and intentionally sought to mislead the law enforcement authorities in the discharge of their public duties by falsely identifying himself as Donald Christopher Brown from the time he was arrested at the department store until after he arrived at police headquarters. Such conduct may properly be characterized as a willful act of obstructing a peace officer in the discharge of his or her duties [i.e., resisting arrest] within the meaning of section 148(a)(1). The fact that the police succeeded in identifying Christopher through the use of fingerprints despite his willful attempt to obstruct the identification process following his arrest, both before and after his arrival at the police station, is immaterial.")
7 In re Muhammed C., (2002) 95 Cal.App.4th 1325, 1330. ("Here, a reasonable inference could be drawn that appellant willfully delayed the officers' performance of duties [and thus committed the crime of resisting arrest] by refusing the officers' repeated requests that he step away from the patrol car: three officers ordered appellant five times to step away before appellant complied; they had interrupted processing Robinson's car to attend to appellant; and Officer Baggett specifically affirmed that the elapsed time had delayed the Robinson investigation.")
8 People v. Quiroga, (1993) 16 Cal.App.4th 961, 966=67. ("The Fifth Amendment issues raised by Officer Stefani's questioning of appellant about his name en route to the jail are by no means simple, but we do not need to address them here. At this point, appellant's conduct did not violate Penal Code section 148 [was not "resisting arrest"] because it did not delay or obstruct a peace officer in the discharge of any duty within the meaning of the statute. The arrest had already been effected; appellant's noncooperation did not serve to delay or thwart his lawful detention. And it was still premature to ask the questions needed for booking appellant in jail. Although peace officers may sometimes find it convenient to fill out booking forms in the field, Officer Stefani had no compelling reason to complete the "booking sheet" until appellant arrived at jail, and in fact he did not attempt to do so until that time.")
9 See same, at 453. ("In the words of Penal Code section 148, appellant's act of refusing to disclose his identity at the booking interview unquestionably served to resist, delay and obstruct the responsible peace officer in the discharge of his duties. The obstructive effect was as significant as the actions for which Penal Code section 148 has traditionally been applied; appellant impeded the administration of justice as effectively as if he had fled from an investigatory detention or physically struggled with a peace officer. In the absence of constitutionally protected speech, we hold that the jury could reasonably find that the nondisclosure came within the definition of the offense.")
10 See same.
11 Resek v. City of Huntington Beach, (9th Cir. 2002) 2002 WL 1418270, at *1. ("Resek cannot be arrested [and charged with resisting arrest] for his words unless they are somehow stripped of their First Amendment protection. While the First Amendment does not protect threats, . . . in order for speech to qualify as illegal advocacy of violence, without the protection of the First Amendment, the bar is high. Only "where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action" can this speech be proscribed.") ]
12 CALCRIM 2656 - Resisting Arrest. ("[The duties of (a/an) <insert title of peace officer, public officer, or emergency medical technician> include <insert job duties>.]")
13 See same, Resisting Arrest. ("[A peace officer is not lawfully performing his or her duties if he or she is (unlawfully arresting or detaining someone/ [or] using unreasonable or excessive force in his or her duties). Instruction 2670 explains (when an arrest or detention is unlawful/ [and] when force is unreasonable or excessive).]")
14 See same, Resisting Arrest.
See also CALCRIM 2670 - Lawful Performance: Peace Officer. ("The People have the burden of proving beyond a reasonable doubt that <insert name, excluding title> was lawfully performing (his/her) duties as a peace officer. If the People have not met this burden, you must find the defendant not guilty of <insert name[s] of all offense[s] with lawful performance as an element>. A peace officer is not lawfully performing his or her duties if he or she is (unlawfully arresting or detaining someone/ [or] using unreasonable or excessive force when making or attempting to make an otherwise lawful arrest or detention). . . . If a peace officer uses unreasonable or excessive force while (arresting or attempting to arrest/ [or] detaining or attempting to detain) a person, that person may lawfully use reasonable force to defend himself or herself."))
15 CALCRIM 2656, Resisting Arrest, endnote 4, above.
16 People v. Lopez, (1986) 188 Cal.App.3d 592, 599-600. ("The standard applied here is not the subjective belief by the defendant that he was being chased by someone other than a police officer. The standard [to determine whether someone is resisting arrest] is that of actual knowledge or what a reasonable person should have known. This is an objective standard for measuring the knowledge of the actor.")
17 California Penal Code 148 PC - Resisting arrest. ("(2) Except as provided by subdivision (d) of Section 653t, every person who knowingly and maliciously interrupts, disrupts, impedes, or otherwise interferes with the transmission of a communication over a public safety radio frequency shall be punished by a fine not exceeding one thousand dollars ($1,000), imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment. (b) Every person who, during the commission of any offense described in subdivision (a), removes or takes any weapon, other than a firearm, from the person of, or immediate presence of, a public officer or peace officer shall be punished by imprisonment in a county jail not to exceed one year or in the state prison. (c) Every person who, during the commission of any offense described in subdivision (a), removes or takes a firearm from the person of, or immediate presence of, a public officer or peace officer shall be punished by imprisonment in the state prison. (d) Except as provided in subdivision (c) and notwithstanding subdivision (a) of Section 489, every person who removes or takes without intent to permanently deprive, or who attempts to remove or take a firearm from the person of, or immediate presence of, a public officer or peace officer, while the officer is engaged in the performance of his or her lawful duties, shall be punished by imprisonment in a county jail not to exceed one year or in the state prison.")
18 See same.
19 Penal Code 148 PC, Resisting arrest, endnote 1, above.
20 People v. Lent, (1975) 15 Cal.3d 481, 486. ("The Legislature has placed in trial judges a broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof. . . . A condition of probation will not be held invalid unless it "(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . ."")
21 CALCRIM 2656, Resisting Arrest, endnote 13, above.
See also Garcia v. Superior Court, (2009) 177 Cal.App.4th 803, 819. ("Thus, "[b]efore a person can be convicted of [a violation of section 148, subdivision (a), for resisting arrest] there must be proof beyond a reasonable doubt that the officer was acting lawfully at the time the offense against him was committed." ( In re Joseph F. (2000) 85 Cal.App.4th 975, 982, 102 Cal.Rptr.2d 641.) " 'The rule flows from the premise that because an officer has no duty to take illegal action, he or she is not engaged in "duties" for purposes of an offense defined in such terms, if the officer's conduct is unlawful....' " ( In re Manuel G. (1997) 16 Cal.4th 805, 815, 66 Cal.Rptr.2d 701, 941 P.2d 880; People v. Cruz (2008) 44 Cal.4th 636, 673, 80 Cal.Rptr.3d 126, 187 P.3d 970 ["it is also a 'well-established rule that when a statute makes it a crime to commit any act against a peace officer engaged in the performance of his or her duties, part of the corpus delicti of the offense is that the officer was acting lawfully at the time the offense was committed' "].) "Under California law, an officer is not lawfully performing her duties when she detains an individual without reasonable suspicion or arrests an individual without probable cause." ( Nuño v. County of San Bernardino. (C.D.Cal.1999) 58 F.Supp.2d 1127, 1134, italics added.)")
22 CALCRIM 2670 - Lawful Performance: Police Officer [requirements for police behavior for resisting arrest charges to stick].
23 Pitchess v. Superior Court, (1974) 11 Cal.3d 531.
24 Whittier criminal defense attorney Nicole Valera was a public defender with the Los Angeles County Public Defender's Office before she began working as a private criminal defense lawyer. She handles the gamut of felony and misdemeanor cases and represents clients at courthouses throughout the Los Angeles County and San Bernardino County court systems.
25 See same - Lawful Performance: Police Officer [requirements for police behavior for resisting arrest charges to stick]. ("If a peace officer uses unreasonable or excessive force while (arresting or attempting to arrest/ [or] detaining or attempting to detain) a person, that person may lawfully use reasonable force to defend himself or herself. A person being arrested uses reasonable force when he or she: (1) uses that degree of force that he or she actually believes is reasonably necessary to protect himself or herself from the officer's use of unreasonable or excessive force; and (2) uses no more force than a reasonable person in the same situation would believe is necessary for his or her protection.]")
26 See same.
See also Judicial Council Of California Criminal Jury Instruction 3470 -- Right to Self-Defense or Defense of Another (Non-Homicide). ("The defendant acted in lawful (self-defense/ [or] defense of another) if:  The defendant reasonably believed that (he/she/ [or] someone else/ [or] <insert name of third party<) was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully];  The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; AND  The defendant used no more force than was reasonably necessary to defend against that danger.")
27 Yount v. City of Sacramento, (2008) 43 Cal.4th 885, 900. (""For example, a defendant might resist a lawful arrest, to which the arresting officers might respond with excessive force to subdue him. The subsequent use of excessive force would not negate the lawfulness of the initial arrest attempt, or negate the unlawfulness of the criminal defendant's attempt to resist it.")
28 Penal Code 602 PC California's trespass law prohibits entering another person's property without permission and/or otherwise with intent to violate their property rights. This offense can be a charge reduction from resisting arrest.
29 Penal Code 415 PC - Fighting; noise; offensive words [potential charge reduction from resisting arrest]. ("Any of the following persons shall be punished by imprisonment in the county jail for a period of not more than 90 days, a fine of not more than four hundred dollars ($400), or both such imprisonment and fine: (1) Any person who unlawfully fights in a public place or challenges another person in a public place to fight. (2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise. (3) Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.")
30 See same.
31 Penal Code 240 PC - Assault [may be charged along with resisting arrest] defined. ("An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.")
32 Penal Code 241 PC - Assault [may be charged along with resisting arrest]; punishment. ("(c) When an assault is committed against the person of a peace officer, firefighter, emergency medical technician, mobile intensive care paramedic, lifeguard, process server, traffic officer, code enforcement officer, animal control officer, or search and rescue member engaged in the performance of his or her duties, or a physician or nurse engaged in rendering emergency medical care outside a hospital, clinic, or other health care facility, and the person committing the offense knows or reasonably should know that the victim is a peace officer, firefighter, emergency medical technician, mobile intensive care paramedic, lifeguard, process server, traffic officer, code enforcement officer, animal control officer, or search and rescue member engaged in the performance of his or her duties, or a physician or nurse engaged in rendering emergency medical care, the assault is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment.")
33 Penal Code 242 PC - Battery defined. ("A battery is any willful and unlawful use of force or violence upon the person of another [as may happen in a physical struggle that gives rise to resisting arrest charges].")
34 Penal Code 243(b) PC - Battery [on a peace officer]; punishment. ("(b) When a battery is committed [such as in a resisting arrest scenario] against the person of a peace officer, custodial officer, firefighter, emergency medical technician, lifeguard, security officer, custody assistant, process server, traffic officer, code enforcement officer, animal control officer, or search and rescue member engaged in the performance of his or her duties, whether on or off duty, including when the peace officer is in a police uniform and is concurrently performing the duties required of him or her as a peace officer while also employed in a private capacity as a part-time or casual private security guard or patrolman, or a nonsworn employee of a probation department engaged in the performance of his or her duties, whether on or off duty, or a physician or nurse engaged in rendering emergency medical care outside a hospital, clinic, or other health care facility, and the person committing the offense knows or reasonably should know that the victim is a peace officer, custodial officer, firefighter, emergency medical technician, lifeguard, security officer, custody assistant, process server, traffic officer, code enforcement officer, animal control officer, or search and rescue member engaged in the performance of his or her duties, nonsworn employee of a probation department, or a physician or nurse engaged in rendering emergency medical care, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.")
35 Penal Code 243(d) PC - Battery; punishment. ("(d) When a battery is committed against any person and serious bodily injury is inflicted on the person, the battery is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.")
36 Penal Code 69 PC - Obstructing or resisting executive officers in performance of their duties [a narrower offense than resisting arrest]. ("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.")
37 People v. Lacefield, (2007) 157 Cal. App. 4th 249, 257. ("Comparing the elements, it appears to be impossible to violate the second type of offense in section 69 without also violating section 148(a)(1), which means that section 148(a)(1) is a lesser included offense of the second type of offense in section 69, under the statutory elements test described in Birks.")
38 Penal Code 69 PC - Obstructing or resisting executive officers in performance of their duties [a narrower offense than resisting arrest], endnote 36, above.
39 Vehicle Code 2800.1 VC - Flight from pursuing peace officer [may be charged along with resisting arrest]. ("(a) Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer's motor vehicle, is guilty of a misdemeanor punishable by imprisonment in a county jail for not more than one year if all of the following conditions exist: . . . .")
40 Vehicle Code 2800.2 VC - Driving in willful or wanton disregard for safety of persons or property while fleeing from pursing police officer [may be charged along with resisting arrest]. ("(a) If a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, or by confinement in the county jail for not less than six months nor more than one year. The court may also impose a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or may impose both that imprisonment or confinement and fine.")
41 See same.
42 Penal Code 148.3 - False report of an emergency [may be charged along with resisting arrest]. ("(a) Any individual who reports, or causes any report to be made, to any city, county, city and county, or state department, district, agency, division, commission, or board, that an "emergency" exists, knowing that the report is false, is guilty of a misdemeanor and upon conviction thereof shall be punishable by imprisonment in a county jail for a period not exceeding one year, or by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.")
43 Penal Code 148.4 PC - Fire protection equipment; false alarms [may be charged along with resisting arrest]. (" (a) Any person who does any of the following is guilty of a misdemeanor and upon conviction is punishable by imprisonment in a county jail, not exceeding one year, or by a fine, not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment: (1) Willfully and maliciously tampers with, molests, injures, or breaks any fire protection equipment, fire protection installation, fire alarm apparatus, wire, or signal. (2) Willfully and maliciously sends, gives, transmits, or sounds any false alarm of fire, by means of any fire alarm system or signal or by any other means or methods.")
44 Penal Code 148.3(b) PC; Penal Code 148.4(b) PC.
45 Penal Code 148.5 PC - False report of criminal offense [may be charged along with resisting arrest].
46 See same.
47 Penal Code 148.9 PC - False representation of identity to peace officer [may be charged along with resisting arrest].
48 Penal Code 185 PC - Wearing a mask to evade police [may be charged along with resisting arrest].
49 Penal Code 402(a) PC - Sightseeing at the scene of an emergency [may be charged instead of resisting arrest].
51 Sean Webby, More than a dozen San Jose officers repeatedly used force in resisting arrest cases, probe finds, San Jose Mercury News, Dec. 27, 2009.