Penal Code 69 PC California's "resisting an executive officer" law is a less common and more serious version of Penal Code 148 PC California's "resisting arrest" law. Penal Code 148 PC is a misdemeanor.1
However, Penal Code 69 PC may be prosecuted as a felony. If convicted, you face:
- 16 months, or two or three years on county jail, and/or
- a fine of up to $10,000.2
But we're here to help. As former cops and prosecutors, we know that "resisting" charges are oftentimes nothing more than trumped up allegations. And what's more is that our insider knowledge equips us with the tools essential to helping you defend against these bogus charges.
Below, our California criminal defense attorneys3 address the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
Penal Code 69 PC actually encompasses two different offenses:
- willfully and unlawfully attempting by threats or violence to deter or prevent an executive officer from performing a lawful duty, and
- using force or violence to resist an executive officer in the performance of his/her lawful duties.4
Let's take a closer look at some of these terms and phrases to gain a better understanding of their legal definitions.
Willfully and unlawfully
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, as long as the act is intentional.5
The term "unlawfully" is used to distinguish lawful threats. Threatening to report an officer who, for example, is "on the take" in violation of California's bribery laws is acceptable. Penal Code 69 PC only penalizes illegal or unlawful threats.6
Threats may be oral or written and may be implied by a pattern of conduct or a combination of statements and conduct. There is no requirement that you actually intend to carry out your threatened act, only that you intend for it to be interpreted as a threat by the intended victim.7
Similarly, there is no requirement that the threat be immediate or imminent. This is one of the differences between Penal Code 69 PC and Penal Code 240 PC California's assault law.
Penal Code 240 PC California's assault law requires an unlawful attempt coupled with a present ability to injure another. Here, there is no such requirement. You can be convicted of resisting an executive officer even when there is no present ability but only a future promise to carry out the threat.8
Whether or not you personally communicate the threat or have another person do so is irrelevant. Likewise, whether the intended victim is actually frightened is also irrelevant. All that matters is that you intend to threaten the intended victim.9
Force or violence
The words "force" and "violence" have the same meaning in a "resisting an executive officer" case as they do in a California Penal Code 242 PC battery case. The terms are synonymous and mean any unlawful application of physical force against another person. The force doesn't need to cause any harm or pain, as even the slightest touch is enough if done in a rude, angry, or offensive manner.10
Touching the person, his/her clothing, or something attached to or closely connected with the person is sufficient.11
An executive officer is a public employee who may exercise some or all of his/her own discretion in performing his/her job duties. Any employee who is charged with enforcing the law is an executive officer.12
This is a much broader definition than a peace officer. Examples of executive officers include (but are not limited to):
- police officers, sheriffs, California Highway Patrol officers,
- government prosecutors and defense attorneys, and
- other elected officials.
Remember, there are two offenses prohibited under Penal Code 69 PC: The first involves attempting to deter or prevent an officer from performing a lawful duty. The second involves resisting an executive officer who is engaged in the performance of his/her lawful duties.
The first offense does not contain a requirement that the officer is engaged in a lawful duty, only that you attempted to prevent him/her from ultimately performing a lawful duty. In order to perform a lawful duty, the officer must act lawfully.13
"[T]he relevant factor is simply the lawfulness of the official conduct that the defendant (through threat or violence) has attempted to deter, and not the lawfulness (or official nature) of the conduct in which the officer is engaged at the time the threat is made."14
And with respect to the second type of offense prohibited under Penal Code 69 PC, an executive officer is not "engaged in the performance" of his/her lawful duties when "he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties".15
There are a variety of legal defenses to Penal Code 69 PC California's "resisting an executive officer" law that your California criminal defense attorney could present on your behalf. Some of the most common examples include (but are not limited to):
The officer's conduct was unlawful
If the executive officer is going to perform an unlawful act or is engaged in an unlawful duty, you are not guilty of violating Penal Code 69 PC for
- attempting to prevent that illegal conduct, and/or
- resisting the officer in the performance of those unlawful duties.
This is because an officer isn't protected when performing or engaged in an unlawful act.16
Similarly, if you resist an executive officer who is using excessive force against you, you are entitled to exercise your right to defend yourself in accordance with California's self-defense laws. California's self-defense laws will protect your conduct as long as the force you use is reasonable under the circumstances.17
This logic is based on the same premise as above. When an executive officer uses excessive force -- even during an otherwise "lawful" arrest -- the arrest becomes unlawful, and the officer is no longer "engaged in the performance of his/her duties".18
But know that even when this is the case, prosecutors could still charge you with other crimes that don't require an officer to be "engaged in the performance of his/her duties". Examples of these offenses include (but are not limited to):
- Penal Code 240 PC California's assault law, and/or
- Penal Code 242 PC California's battery law,
both of which can be committed against any victim. However, if the executive officer only uses excessive force because you have unlawfully resisted an otherwise lawful procedure, you will be precluded from asserting this defense.19
California Penal Code 69 PC is often a trumped-up charge, initiated by overzealous, angry, insecure, or even vengeful officers.
As Oakland criminal defense attorney Jim Hammer20 explains, "When we suspect that you are innocent.and that you have been falsely accused of resisting an executive officer.we will file a Pitchess Motion to investigate possible police misconduct. A 'Pitchess' Motion is a request for information contained in the arresting officer's personnel file. If we find a history of complaints or misconduct, it will likely result in a reduction of your charges or in an outright dismissal of your case."
Penal Code 69 PC California's "resisting an executive officer" law is a "wobbler" which means that prosecutors may charge the offense as either a misdemeanor or a felony, depending on
- the circumstances of the offense, and
- your criminal history.21
If convicted of the misdemeanor, you face:
- up to one year in a county jail, and.or
- a maximum $10,000 fine.
If convicted of the felony, you face the same fine, but 16 months, or two or three years in county jail.
Penal Code 148 PC California's "resisting arrest" law
Penal Code 148 PC California's "resisting arrest" law is what's known as a "lesser included offense" of Penal Code 69 PC above.22 This means that even if the prosecutor charges you with Penal Code 69 PC, a jury could choose alternatively to convict you of this misdemeanor offense instead.
Negotiating a plea bargain is another strategy that your California criminal defense lawyer may employ. Plea bargains are typically engaged in when the evidence against you is too strong to overcome but not strong enough to convince the prosecutor that he/she will definitely obtain a conviction.
Two of the most common plea bargain charges are Penal Code 602 PC California's trespassing law and Penal Code 415 PC California's disturbing the peace law. Trespassing and disturbing the peace are charges that
- carry a maximum six-month jail sentence,
- can be charged as misdemeanors or infractions, and
- carry less of a social stigma than a "resisting" charge.23
So even though neither offense is directly related to Penal Code 69 PC, they are useful tools when trying to reduce your charge.
Threatening or resisting an executive officer can almost always lead to additional criminal charges. Whether multiple charges are appropriately filed or illegally grouped together will vary case-by-case. Some of the most common related offenses include (but are not limited to):
Penal Code 243 PC California's "battery on a peace officer" law
Penal Code 243 PC California's "battery on a peace officer" law may be filed in connection with a "resisting" charge if you use physical force against the executive officer when the officer is "engaged in the performance of his/her lawful duties".
Vehicle Code sections 2800.1 and 2800.2 VC California's "evading arrest" laws
Vehicle Code 2800.1 VC California's misdemeanor "evading an officer" law and Vehicle Code 2800.2 VC California's "felony reckless evading" law prohibit fleeing from or evading a pursuing officer's car. If you willfully evade an officer, you are arguably preventing and/or resisting the officer from engaging in the performance of his/her duties.
Penal Code 422 PC California's criminal threats law
Penal Code 422 PC California's criminal threats law (formerly known as California's terrorist threats law) prohibits threatening to commit a crime that will result in death or great bodily harm to another person even if you don't intend to carry out the threat.24
If you threaten to harm an executive officer -- or even one of his/her immediate family members -- prosecutors will likely charge you with both offenses.
Penal Code 503 PC California's extortion or "blackmail" law
Penal Code 518 PC California's extortion or "blackmail" law prohibits using force or fear to obtain an official act from a public officer.25 If the public officer qualifies as an "executive" officer -- and your threats to deter or prevent him/her from performing a lawful duty involve forcing him/her to give you or a third person some type of personal gain -- you subject yourself to prosecution for Penal Code 69 PC and Penal Code 518 PC.
Call us for help.
If you or loved one is charged with Penal Code 69 PC resisting an executive officer 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.
Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions relating to Nevada's resisting arrest laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.26
1California Penal Code 148(a)(1) PC -- 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.")
2Penal Code 69 PC California's resisting an executive officer law. ("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.")
See also California Penal Code 1170(h)(1) -- ("Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.")
3Our 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.
4In re Manuel G. (1997) 16 Cal. 4th 805, 814. ("The statute sets forth two separate ways in which an offense [that is, Penal Code 69 PC California's resisting an executive officer law] can be committed. The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty.")
5CALJIC 1.20 -- Willfully. ("The word "willfully" when applied to the intent with which an act is done or omitted means with a purpose or willingness to commit the act or to make the omission in question. The word "willfully" does not require any intent to violate the law, or to injure another, or to acquire any advantage.")
6People v. Superior Court (Anderson) (1984) 151 Cal.App.3d 893, 894. ("Penal Code section 69 prescribes punishment for "[e]very 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." The superior court has ruled this section overbroad because it could be used against one who threatened lawful conduct, such as to file a lawsuit or run for elected office. The People seek to cure this overbreadth by a narrowing construction which makes the statute applicable to threats of violence but not to threats of lawful conduct. We accept the People's construction, and issue peremptory writ of mandate.")
7Judicial Council of California Criminal Jury Instruction (CALCRIM) 2651 -- California's "resisting an executive officer" law. ("A threat may be oral or written and may be implied by a pattern of conduct or a combination of statements and conduct. [The defendant does not have to communicate the threat directly to the intended victim, but may do so through someone else. The defendant must, however, intend that (his/her) statement be taken as a threat by the intended victim.] [Someone who intends that a statement be understood as a threat does not have to actually intend to carry out the threatened act [or intend to have someone else do so].]")
8People v. Hines (1997) 15 Cal.4th 997, 1061. (""As long as the threat reasonably appears to be a serious expression of intention to inflict bodily harm [citation] and its circumstances are such that there is a reasonable tendency to produce in the victim a fear that the threat will be carried out," a statute proscribing such threats "is not unconstitutional for lacking a requirement of immediacy or imminence." ( In re M.S. (1995) 10 Cal.4th 698, 714, 42 Cal.Rptr.2d 355, 896 P.2d 1365.) Thus, threats may be constitutionally prohibited even when there is no immediate danger that they will be carried out.")
9See CALCRIM 2651, endnote 7, above. See also People v. Hines, endnote 8, above. ("FN15. We note that a defendant's threat may violate section 69 even if the officer who is the object of the threat does not in fact fear that it will be carried out. The statute requires only that the defendant make the threat for the purpose of inducing such fear, and to thereby deter or prevent the threatened officer from performing any legally imposed duty. (See People v. Superior Court of San Francisco (Anderson) (1984) 151 Cal.App.3d 893, 897, 199 Cal.Rptr. 150.)")
10California Jury Instructions, Criminal CALJIC 16.141 -- Force and violence, defined.
12CALJIC 7.50 - California's "resisting an executive officer" law. ("An "executive officer" is a public employee whose lawful activities are in the exercise of a part of the sovereign power of the governmental entity employer, and whose duties are discretionary, in whole or in part. Any employee charged with the responsibility of enforcing the law is an executive officer.")
See also CALCRIM 2651. ("An executive officer is a government official who may use his or her own discretion in performing his or her job duties. [(A/An)<insert title, e.g., peace officer, commissioner, etc.> is an executive officer.]")
13In re Manuel G. (1997) 16 Cal. 4th 805, 816. ("Although the statute applies only when the conduct that the threat is intended to deter is a "duty imposed upon such officer by law "-i.e., only when the conduct that the defendant attempts to deter is lawful conduct to be performed by the officer in connection with his or her duties as an officer.")
14See same at 17.
15CALCRIM 2652 -- California's resisting an executive officer law.
16In re Manuel G. (1997) 16 Cal. 4th 805, 815. ("The longstanding rule in California and other jurisdictions is that a defendant cannot be convicted of an offense against a peace officer " ' engaged in ... the performance of ... [his or her] duties' " unless the officer was acting lawfully at the time the offense against the officer was committed. ( People v. Gonzalez (1990) 51 Cal.3d 1179, 1217, 275 Cal.Rptr. 729, 800 P.2d 1159, original italics; see also People v. Simons (1996) 42 Cal.App.4th 1100, 1109, 50 Cal.Rptr.2d 351.) "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....")
17Judicial 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.")
18People v. White (1980) 101 Cal.App.3d 161, 164. ("The instructions should have included the explanation that where excessive force is used in making what otherwise is a technically lawful arrest, the arrest becomes unlawful and a defendant may not be convicted of an offense which requires the officer to be engaged in the performance of his duties.")
19Yount 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.")
20Oakland criminal defense attorney Jim Hammer uses his inside knowledge as a former San Francisco Deputy District Attorney to defend clients throughout the Bay Area, including San Francisco, Berkeley, Marin County, and San Jose.
21Penal Code 69 PC California's resisting an executive officer law. ("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 in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment.")
22People 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.")
23Penal Code 602 PC California's trespass law prohibits entering another person's property without permission.23 Penal Code 415 PC California's "disturbing the peace" law prohibits, among other things, fighting another person in public.
24Penal Code 422 PC California's criminal threats law. ("Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison. For the purposes of this section, "immediate family" means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.")
25Penal Code 518 PC California's extortion law. ("Extortion is the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.")
26Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada's resisting arrest laws. Their Nevada law offices are located in Reno and Las Vegas.