Resisting an Officer

Under section 69, it is a crime to “knowingly resist[ ], by the use of force or violence, the officer, in the performance of his or her duty.” (§ 69.) California’s standard jury instructions, CALCRIM No. 2652, provides that a violation of section 69 consists of the following three elements:

  1. The defendant unlawfully used force to resist an executive officer;
  2. When the defendant acted, the officer was performing his lawful duty; and
  3. When the defendant acted, he knew the executive officer was performing his duty.

An executive officer is a government official who may use his or her own discretion in performing his or her duties.” In other words, police officers are classified as “executive officers” under section 69.

Because an officer has no duty to engage in illegal conduct, the duty referenced in section 69 must be “lawful” conduct. The lawfulness of the victim’s conduct forms part of the corpus delicti of the offense of resisting an officer. If no force is used while resisting an officer, the crime is charged as a misdemeanor under Penal Code section 148(a); resisting, obstructing or delaying an officer in the lawful performance of his or her duties.

Attorney for Resisting an Officer Crimes in Ventura County, CA

If you were charged with resisting an officer, then contact an experienced criminal defense attorney at Jay Leiderman Law. The prosecutors often take an aggressive stance in these cases in order to protect the officer or the officer’s law enforcement agency from civil liability for using excessive force.

For a free and confidential consultation, contact an attorney at Jay Leiderman Law by calling (805) 654-0200 today.

Resisting an Officer Executing a Valid Arrest Warrant

Officers carrying out the command of a valid arrest warrant are lawfully engaged in their duties. The standard jury instruction, CALCRIM No. 2652, provides that the “duties of an officer include arresting people for outstanding warrants.” Likewise, another jury instruction on “[u]nlawful [a]rrest,” provides that “[a] peace officer may legally arrest someone … on the basis of an arrest warrant.”5 (CALCRIM No. 2670).

Under section 841, “[t]he person making the arrest must inform the person to be arrested of the intention to arrest him, of the cause of the arrest, and the authority to make it” unless an exception applies.

Exceptions to the Requirements of Section 841

Section 841 sets forth three exceptions to the requirement that the person making the arrest must inform the person to be arrested of the intention to arrest him, the cause of the arrest, and the authority to make the arrest including:

  1. when the person making the arrest has reasonable cause to believe that the person to be arrested is actually engaged in the commission of or an attempt to commit an offense; or
  2. the person to be arrested is pursued immediately after its commission, or
  3. after an escape.

The reason that notification of official character of the person making an arrest is not required when the party is apprehended in the commission of an offense is because the law presumes that the person must know the reason why he or she is being arrested.

In People v. Young (1934) 136 Cal.App. 699, 705, the court reasoned that “[w]here a party is apprehended in the commission of an offense, or upon fresh pursuit afterward, notice of the official character of the person making the arrest or of the cause of the arrest is not necessary, because he must know the reason why he is apprehended.” In other words, the failure to announce the cause of an arrest does not invalidate the arrest.

The courts have found that strict compliance with this provision is not required and a failure to comply therewith is excused if the officer acts in a good faith belief that compliance would increase his peril. For example, in People v. Superior Court (1968) 264 Cal.App.2d 165, 171-172, the court found that the “failure to observe these statutory requirements may be overlooked when necessary for the safety of an officer ….”

In People v. Vasquez (1967) 256 Cal.App.2d 342, 345 (Vasquez), the court reasoned that “a police officer’s reasonable belief that compliance with section 841 would frustrate an arrest excuses strict compliance with that section.” The courts have even found that a “police officer’s uniform is sufficient indicia of authority to make the arrest.” (People v. Superior Court (1973) 35 Cal.App.3d 1, 5.)

Under section 834a, “[i]f a person has knowledge, or by the exercise of reasonable care, should have knowledge, that he is being arrested by a peace officer, it is the duty of such person to refrain from using force … to resist such arrest.”

Section 834a requires that a person who is being arrested refrain from using force, whether the arrest is lawful or unlawful. (In re Bacon (1966) 240 Cal.App.2d 34, 53, disapproved on another point in In re Brown (1973) 9 Cal.3d 612, 623-624.) In Carrasco, supra, 163 Cal.App.4th at page 985, the court found that if an appellant resisted an officer at all, he did so forcefully.