Return to CALJIC Part 14-17 – Contents
F 16.102 n1 Removal Of Weapon May Not Be Charged In Addition To Resisting Arrest (PC 148).
PC 148 was revised, effective January 1, 1990, to include, in addition to the traditional resisting arrest offense, three separate offenses, for the removal or attempted removal of the officer’s weapon. (PC 148(b), PC 148(c), PC 148(d).) While the removal or attempted removal of the weapon may be substantively charged as an offense independent of resisting arrest, when a violation of PC 148(b), PC 148(c) or PC 148(d) is charged, the statute expressly precludes an additional charge of resisting arrest under PC 148(a). (See PC 148(e).) However, as of January 1, 1991, multiple convictions are permitted when “more than one officer [etc.] are victims.”
F 16.102 n2 Resisting Arrest: No Multiple Conviction For Separate Acts Against The “Same Officer” (PC 148).
The apparent intent of this amendment is to permit multiple convictions for separate acts committed against separate officers. If both acts are committed against the “same officer,” then only one conviction should be permitted even if another officer was present. (See full text of PC 148(e) as amended.)
F 16.102 n3 Resisting Arrest: Verbal Opposition Or Challenge To Police Action Insufficient (PC 148).
When a citizen verbally opposes or challenges police conduct there is no violation of PC 148 because the citizen has not “resisted, delayed, or obstructed” the police. Moreover, even if the statute could be so applied, it would run afoul of the First Amendment. Even fighting words, when uttered to a policeman, are constitutionally protected because it is not contemplated that a peace officer will react violently. (Houston v. Hill (87) 482 US 451, 462-63 [96 LEd2d 398] [“the freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principle characteristics by which we distinguish a free nation from a police state”; see also Long v. Valentino (89) 216 CA3d 1287, 1295 [265 CR 96]; (In re German A. UNPUBLISHED (G010742).) [A copy of the German A. opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-109.]
F 16.102 n4 Resisting Arrest: Excessive Force and Deadly Force.
See FORECITE F 9.80 n5.
F 16.102 n5 Resisting Unlawful Arrest Can Only Be Simple Assault And Battery.
The legal effect of an unlawful arrest or detention is merely to remove the cloak of authority from the officer because the officer is not acting in performance of his duties. As stated in People v. Curtis (69) 70 C2d 347, 355-56 [74 CR 713], “We confirm that a resisting defendant commmits a public offense; but if the arrest is ultimately determined factually to be unlawful, the defendant can be validly convicted only of simple assault and battery.”
F 16.102 n6 Resisting Arrest/Obstructing Officer: Refusing To Obey Orders As Delaying Officers (PC 148(a)).
PC 148 does not criminalize a person’s failure to respond with alacrity to police orders (People v. Quiroga (93) 16 CA4th 961, 966 [20 CR2d 446].) However, a person’s refusal to obey police orders which delay processing an arrest or crime scene may make that person liable for prosecution under PC 148(a). (See In re Muhammed C. (2002) 95 CA4th 1325 [116 CR2d 21] [person who repeatedly refused to stop talking to suspect in police car guilty of delaying peace officer].)
F 16.102a
Resisting Arrest: “Should Know” Standard
Requires Consideration Of A Reasonable Person In Defendant’s Position
(PC 148)
*Add to CJ 16.102:
[See FORECITE F 7.32a.]
F 16.102b
Resisting Arrest: Verbal Statements Not Sufficient
*Modify CJ 16.102 as follows:
[See FORECITE F 9.80b]
F 16.102c
Resisting Arrest: Excessive Force And Right Of Self-Defense
*Add to CJ 16.102:
Execution of an unlawful arrest or detention does not justify an individual to strike or assault the officer unless excessive force is used or threatened. Excessive force triggers the individual’s right of self-defense.
Points and Authorities
(People v. Curtis (69) 70 C2d 347, 355-357 [74 CR 713]; see also Evans v. City of Bakersfield (94) 22 CA4th 321, 331 [27 CR2d 406].)