Resisting Arrest v. Fighting with the Police: California Penal Code Sections 148(a) and 69 Discussion
Penal Code Section 69 and 148(a) both make it unlawful to fail to follow lawful police orders. The former is a felony which carries the possibility of prison, while the latter is a misdemeanor that usually results in a defendant having to perform community service. The big difference between the criminal charges, as the case below demonstrates, is the use of force by a defendant.
The Court of Appeals ruled in a recent case that a Defendant who claimed he resisted police officers because their efforts to subdue him during an arrest caused him pain was entitled to an alternate jury instruction on a lesser charge that did not involve use of force or violence (Penal Code Section 148) The court concluded that the trial judge must instruct on both theories because a jury could reasonably have found defendant guilty of the lesser offense if it believed his testimony. The Appeals Court thus conditionally reversed the convictions for forcibly resisting the officers (Penal Code Section 69).
Defendant was apprehended in November of 2006 by officers of the Los Angeles Police Department who were responding to a report of a prowler in San Pedro. After a citizen told the first officer on the scene that a man matching the prowler’s description was attempting to break into vehicles nearby, the officer radioed for assistance and initiated contact with the suspect, who began to walk up a flight of stairs leading to an apartment patio approximately 30 feet above the ground surrounded by a chainlink fence. Defendant told the officer that he lived at the apartment, but two other officers who arrived said that he refused their orders to show his hands and, while refusing to turn around, attempted to open the apartment door. When one of officers handcuffed his right wrist, the officers said that Defendant “really went off” and began to struggle while calling out for his mother.
Saying that Defendant was “stronger than anybody that I’ve ever had to be in [an] altercation with,” and that she was afraid that someone would respond to his calls for help, one of the responding officers testified that she began punching him in the back when he grabbed the handle of another officer’s gun. The other responding officer testified that he put a carotid restraint hold on the suspect and pepper sprayed him twice in the face while neighbors watched before the officers were able to subdue him when Port of Los Angeles police officers arrived.
In a vehicle parked nearby, officers found his identification, a cellular telephone, a glass pipe and a pouch containing 8.12 grams of methamphetamine. Defendant was charged with three counts of resisting an executive officer by force or violence in violation of Penal Code Sec. 69, and one count of possession of methamphetamine for sale. At trial, Defendant acknowledged that he did not live at the apartment and claimed that the officers had rushed him on the patio, saying that he was thrown to the ground before he had a chance to comply with the commands to stop resisting. He also told the court that he only he moved while on the ground to relieve the tension caused when the officers twisted his arm and choked him.
A jury convicted Defendant of the three resisting counts and a lesser charge count of possession of methamphetamine. On appeal, Defendant contended that the trial judge should have instructed the jury on the lesser included offense of resisting an officer without the use of force or violence under Sec. 148(a)(1) in addition to an instruction under Sec. 69. The Court of Appeal concluded that Defendant was correct and conditionally reversed the convictions, giving the prosecution the option of retrying Defendant on the greater offense, or accepting a reduction in the convictions to the lesser offense.
“Defendant’s testimony presented a plausible version of the incident which, if believed by the jury, permitted a conviction of resisting arrest in violation of Sec. 148(a)(1),” the court wrote, pointing to the jury’s conviction on the lesser drug charge despite expert testimony, and reasoning that the result demonstrated the jury’s acceptance of defedant’s testimony that the methamphetamine was for personal consumption.
Source: Law Blog