Brief Bank # B-824 (Re: PC 148 – Potential Plea Ramifications.)
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LAW OFFICES OF MATTHEW KUMIN
870 MARKET STREET, SUITE 1262
SAN FRANCISCO, CA 94102
(415) 434-8453 (FAX)
STEPHEN L. COLLIER, OF COUNSEL
BEWARE OF THE POTENTIAL RAMIFICATIONS OF PLEAS OF NOLO
CONTENDERE TO PENAL CODE SECTION 148 – RESISTING ARREST
Anyone who is convicted of a violation of section 148 or who pleads guilty, or nolo contendere thereto is foreclosed from pursuing a federal civil rights action pursuant to 42 U.S.C. § 1983 for excessive force. A plea of nolo contendere does not, however, preclude a lawsuit brought in state court alleging only state causes of action.
Under Heck v. Humphrey, 512 U.S. 477, 486-487 (1994), a plaintiff/defendant cannot maintain an action under 42 U.S.C. § 1983 which, if successful, would necessarily imply the invalidity of the plaintiff’s/defendant’s underlying conviction or sentence unless the plaintiff/ defendant first demonstrates that the conviction or sentence has already been invalidated. This serves the court’s policy of avoiding both parallel litigation and conflicting resolutions arising out of the same underlying facts. Id. at 484.
The elements of Penal Code section 148 are as follows:
1. The defendant willfully resisted, delayed or obstructed a peace officer;
2. The officer was “engaged in the performance of his duties”; and
3. The defendant knew or reasonably should have known that the other person was peace officer engaged in the performance of his official duties. People v. Simons, 42 Cal.App.4th 1100, 1108-1109 (1996).
Element number 2 is the decisive factor because it requires that the officer be engaged in the lawful performance of his duties. Id. at 1109. Thus, a finding that the officer used excessive force would undermine the requirement of element two that he act lawfully and would thereby necessarily imply the invalidity of a section 148 finding of guilty. People v. Olguin, 119 Cal. App.3d 39, 45 (1981) see also CALJIC 16.111 (instructing that a defendant may not be convicted of violating section 148 if the officer used excessive or unreasonable force). Significantly, the Supreme Court observed in Heck that if the lawfulness of the resisted arrest is an element of the crime (as it is in California), then a successful 1983 action would necessarily invalidate the underlying conviction. Heck, 512 U.S. at 486 n.6.
In federal court, a criminal defendant who pleads no contest “stands in the same shoes as one who has been convicted of the charged offense.” Moser v. Bascelli, 879 F. Supp. 489, 493 (E.D.Pa. 1995); see also Nuno v. County of San Bernardino, 1999 U.S. Dist. LEXIS 11679, *22 (C.D. Cal. 1999) (“for purposes of the Heck analysis, a plea of nolo contendere in a California criminal action has the same effect as a guilty plea or jury verdict of guilty”). Thus, the Moser court held that the defendant/plaintiff could not maintain his section 1983 lawsuit because it would necessarily imply the invalidity of his underlying criminal conviction. Likewise, numerous other federal courts have held in both published and unpublished decisions that a plea of nolo contendere to a criminal offense prohibits 1983 actions which, if successful, would necessarily invalidate the underlying conviction that arose from the plea . (See Contreras v. Schiltgen, 122 F.3d 30 (9th Cir. 1996) (until Contreras has overturned his conviction stemming from a no contest plea to assault, the INS may rely upon it as a lawful basis for detention and deportation); Fischer v. Mulder, 1994 U.S. Dist. LEXIS 12552 (N.D. Cal. 1994) (1983 suit cannot stand when plaintiff pled no contest to conversion then filed 1983 suit challenging validity of arrest and conviction); Kevakian v. Kennedy, 1995 U.S. Dist. LEXIS 21694 (N.D. Cal. 1995) (1983 claim did not accrue where plaintiff pled no contest to charge of not reporting to his probation officer, and then later alleged ineffective assistance of counsel in a 1983 suit); Nobles v. Sonoma County, 1995 U.S. Dist. LEXIS 4609 (N.D. Cal. 1995) (plaintiff’s claim under 1983 not cognizable where plaintiff pled no contest to unspecified charges and then sought damages under 1983 for violations arising out of the same underlying circumstances because the underlying conviction has not been invalidated). Indeed, Nuno, 1999 U.S. Dist. LEXIS 11679, specifically holds that a federal 1983 suit for excessive force cannot stand where the defendant pled guilty to section 148.
California Penal Code section 1016(3) provides that “[t]he Court shall ascertain whether the defendant completely understands that a plea of nolo contendere shall be considered the same as a plea of guilty and that, upon a plea of nolo contendere, the court shall find the defendant guilty. … In cases other than those punishable as felonies, the plea and any admissions required by the court … may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.” Unfortunately, section 1016(3) merely prevents a no contest plea to a misdemeanor from being used as an admission in future civil proceedings; it does not exclude such pleas from the Heck analysis. Instead, under Heck, a 1983 claim for excessive force never even arises because if it were successful, it would invalidate the underlying conviction based upon the no contest plea to section 148.
Accordingly, it is imperative that a defendant be warned of the ramifications of a conviction for section 148 prior to entering a plea.