Resisting Arrest, Escape
Category > Resisting Arrest, Escape
Updated 2/26/2024Evidence did not support battery on a school officer where the minor brushed against the officer’s hand while trying to avoid the officer’s touch.The evidence was insufficient to support the finding that the minor committed battery on the high school resource officer. The officer put his hand on the back of the minor who was talking to his father on the phone and the minor moved his right arm back and his body away to escape the officer’s touch lightly brushing the officer’s hand. The minor’s contact with the officer’s hand was incidental to his attempt to avoid the officer’s hand. id: 26417
Updated 2/26/2024Evidence did not support the resisting an officer finding where the officer was not enforcing any school rules when the minor resisted his touch.Evidence was insufficient to support the finding that the minor resisted an officer under Penal Code section 148 since there was no evidence the officer was enforcing any school rules when he first touched the minor, and where he only encouraged (and did not order) the minor to follow an aide’s instruction.id: 26418
Updated 2/4/2024The trial court erred in giving a special instruction that in a resisting arrest case, the defendant’s actions may be an intervening act sufficient cause to purge the taint of the officer’s unlawful actions. Defendant was convicted of obstructing an officer and forcibly resisting an officer. Both offenses require the officer was acting lawfully at the time. The trial court properly instructed on that point. However, the court then gave a special instruction supporting that a defendant’s actions after an unlawful detention could be considered an intervening act sufficient to purge the taint of the officer’s unlawful activity. The court further instructed erroneously that the prosecutor need not show defendant intended to break the law. The error required reversal.id: 27268
A conviction for escape under Penal Code section 4532, subd.(b)(1) requires actual, not constructive custody.Defendant left her county of residency without permission while on sheriff’s parole in violation of the terms of her parole. Her conduct did not support a conviction for escape within the meaning of Penal Code section 4532, subd.(b)(1), although she was subject to punishment for violating her parole.id: 26050
The trial court erred by instructing jurors that for purposes of section 69, the prosecution need not prove defendant knew the person he was resisting was an executive officer.Defendant was convicted of attempting to deter and resisting an executive officer in the performance of his duties under Penal Code section 69. However, the trial court prejudicially erred by instructing the jury that the prosecution need not prove that defendant knew the person he was attempting to deter was an executive officer.id: 26056
The trial court erred at defendant’s resisting arrest trial by denying his request to present an expert on excessive force.Defendant was convicted of resisting an officer under Penal Code section 69, claiming the officer’s use of excessive force negated an essential element of the offense. The trial court abused its discretion by denying defendant’s request to present the testimony of a use-of-force expert at trial. He has the right to present a defense, and this was not improper expert testimony on an ultimate issue. However, the error was harmless given the evidence of defendant’s actions before the claimed excessive force was applied.id: 25844
The minor could not be found to have resisted arrest or obstructed an officer since the police officer had no legal authority to order the minor into class.A 17 year-old was dropped off at high school, but refused to obey a deputy sheriff’s orders to go inside to class. A juvenile court later sustained allegations that she violated Penal Code section 18 by resisting or obstructing a peace officer in the performance of his duties. However, the minor did not violate section 148 because the arresting officer had no legal authority to order her to class.id: 25622
Evidence did not support the felony evading an officer conviction because there was no proof that the pursuing officers wore a distinctive uniform.Defendant was convicted of willful or wanton disregard for the safety of others while fleeing from a pursuing officer in violation of Vehicle Code section 2800.2. However, the evidence was insufficient to support the conviction because there was no proof that either of the pursuing officers wore a distinctive uniform as required by the statute.id: 24837
The evidence did not support the section 148 conviction absent a showing that the minor knew or should have known the police were pursuing him.There was insufficient evidence to support the minor’s conviction for resisting or obstructing a police officer in violation of Penal Code section 148 where the police detained the minor’s friend and the minor then ran away, abandoning his backpack. There was no evidence to show the minor knew or should have known the police were pursuing him.id: 25338
The trial court prejudicially erred by failing to instruct on simple assault as a lesser included offense of resisting an officer by force under section 69.Defendant was convicted of resisting an officer using force or violence pursuant to Penal Code section 69. However, the trial court prejudicially erred by failing to instruct on simple assault as a lesser necessarily included offense.id: 24568
Evidence did not support the resisting a police officer conviction where the minor told the suspects and nonsuspects not to cooperate with the police, and refused to provide his name when arrested.The evidence did not support the minor’s conviction for obstructing a peace officer under Penal Code section148. The minor’s verbal protests against the detention of his friends, prearrest, were protected political speech under the First Amendment. His prearrest conduct in telling the nonsuspect minors not to cooperate amount to nothing more than lawful protest against unlawful detention. Finally, the minor’s refusal to identify himself postarrest, but before being transported to the station was lawful silence under the Fifth Amendment.id: 24438
Penal Code section 4532 does not apply to breaking away from the custody of an officer within the jail.Under Penal Code section 4532, it is illegal for a prisoner to escape from jail or to escape from the lawful custody of an officer while outside of jail, but it is not illegal for a prisoner to escape from the custody of an officer while in jail. The trial court prejudicially erred by instructing to the contrary.id: 21566
The minor did not resist a police officer by refusing to stop and talk to the pursuing officer when he had not be ordered to do so.After the minor had been publically beaten at school, a teacher attempted to console him but he was distraught. When the school security officer walked after him, trying to talk, the minor kept walking. The evidence did not support the resisting a police officer arrest where the officer made no attempt to detain the minor. In fact, he yielded immediately when he was later commanded to stop.id: 23846
The minor did not resist a police officer by refusing to stop and talk to the pursuing officer when he had not be ordered to do so.After the minor had been publically beaten at school, a teacher attempted to console him but he was distraught. When the school security officer walked after him, trying to talk, the minor kept walking. The evidence did not support the resisting a police officer arrest where the officer made no attempt to detain the minor. In fact, he yielded immediately when he was later commanded to stop.id: 23847
Because the defendant never made it outside the prison boundaries the evidence did not support the prison escape conviction and the court could not reduce the offense to attempted escape because the jury had not been instructed on that offense.Defendant broke out of his prison cell and breached a number of interior barriers but remained within the boundaries of the prison. Escape from prison under Penal Code section 4530 requires proof that the prisoner has gone beyond the boundary of the prison, so the evidence was insufficient to support the conviction. While the evidence did support an attempt to escape the prison, the court never instructed the jury on that offense. Therefore, the appellate court could not simply reduce the conviction to an attempted escape, but rather, reversed the conviction.id: 21784
The appellate court having reversed the escape conviction for insufficient evidence of a completed escape, could not reduce the conviction to attempted escape.After finding insufficient evidence to support a conviction for escape from state prison, an appellate court may not reduce the conviction to attempted escape, as the attempt is not a lesser included offense of escape and the trial court did not instruct the jury on attempt to escape.id: 22785
Defendant could not be convicted of leaving the scene of an injury accident where he was parked and fled on foot before the accident occurred.Following a chase, defendant stopped his car and his passenger exited and was hit by a police car. Defendant was convicted of then leaving the scene of an injury accident under Vehicle Code section 20001. However, the evidence did not support the conviction because the vehicle was parked and no longer being driven when the injury producing event occurred.id: 21366
The resisting an officer conviction was reversed because a campus security officer is not a public officer.The minor was convicted of resisting a public officer in violation of Penal Code section 148 after refusing to stop when directed to do so by a high school campus security officer. However, as a matter of law, a campus security officer does not qualify as a public officer and the evidence was insufficient to support the conviction.id: 21120
CALCRIM No. 2671 erroneously implies a defendant is not authorized to use force in certain circumstances when responding to a custodial officer’s force.Defendant was convicted of battery
against a custodial officer in violation of Penal Code section 243.1. The court exercised its discretion to decide the instructional issue despite the lack of an objection. It ruled the trial court erred by instructing with
CALCRIM No. 2671 because it authorizes a custodial officer to use
reasonable force in four situations but erroneously limits to the first
situation (to restrain a person) the prohibition against the defendant’s use of force to resist reasonable force and the authorization of defendant’s use of reasonable force to defend against excessive force. However, reversal was not required under the Guiton or Green rule where the jurors decided
adversely to defendant the issue of whether his actions were an involuntary reaction to the pepper spray or a battery on the officer.id: 20991
A juvenile probation counselor was not a custodial officer for purposes of section 243.1, battery against a custodial officer.Penal Code section 243.1, battery against a custodial officer, does not apply to a battery committed upon a probation counselor working in a juvenile hall. The matter was reversed and remanded for further proceedings to determine the proper disposition.id: 9674
The trial court erred in failing to instruct on the elements of one of the two offenses described in the resisting arrest statute.Defendant was charged with violating Penal Code section 69, which describes two related offenses, attempting to deter and actually resisting an officer. When instructing the jurors with CALJIC 7.50, the court erroneously omitted the elements of attempting to deter - the theory argued by the prosecutor.id: 18591
Failure to yield under section 21806 cannot be one of the three underlying traffic violations used to establish willful or wanton disregard for safety under section 2800.2.Defendant was convicted of evading a pursuing officer while driving with a willful or wanton disregard for safety in violation of Vehicle Code section 2800.2. That provision allows the "willful or wanton disregard" element to be established by proof of three or more one-point traffic violations. However, one of the three underlying traffic offenses cannot be section 21806 (failure to yield the right of way for an emergency vehicle) because it is impossible to evade police pursuit without also failing to yield the right of way.id: 18323
Evidence did not support the evading an officer conviction where it was not shown that the officer activated a siren or wore a distinctive uniform.Defendant was convicted of evading a pursuing officer with willful or wanton disregard for the safety of persons or property under Vehicle Code section 2800.2. However, the evidence did not support the conviction where it was never established that the pursuing officer either activated a siren or wore a distinctive uniform.id: 17805
Evidence did not support the evading an officer conviction where the pursuing officer drove a rescue boat for the fire department and it was not shown that his primary duty was law enforcement.Defendant was convicted of evading a police officer under Vehicle Code section 2800.3. However, the prosecution failed to establish that the pursuing officer was a “peace officer” for the present purposes where he testified that he was a rescue boat operator for the Long Beach Fire Department and “the life guards”, and it was never established that his primary duty was law enforcement.id: 20525
A consecutive sentence is not mandatory for a violation of felony escape under section 4532, subd.(a)(1).The trial court erred by finding that a consecutive sentence was required for defendant’s felony conviction of nonviolent escape by a misdemeanant under Penal Code section 4532, subd.(a)(1). id: 20524
Trial court must instruct that "distinctively marked" police vehicle requires, in addition to the red light and siren, features that distinguish it from other vehicles. A conviction for any offense involving flight from a pursuing officer's motor vehicle requires, among other things, that the vehicle be "distinctively marked." A vehicle is distinctively marked if its outward appearance during pursuit exhibits, in addition to a red light and a siren, one or more features that are reasonably visible to other drivers and distinguish it from vehicles not used for law enforcement so as to give reasonable notice to the person being pursued that the pursuit is by the police. Moreover, the trial court must, on its own initiative, instruct the jury that the statutory phrase "distinctively marked" requires that, in addition to the red light and siren, the police vehicle must have features that distinguish it from vehicles not used for law enforcement.id: 19106
A defendant commits a single violation of section 20001 where an accident causes injury to multiple persons.Defendant commits only a single violation of fleeing the scene of an accident causing injury under Vehicle Code section 20001 where an accident results in injury to more than one person, and the person who caused it flees the scene.id: 19875
A violation of Vehicle Code section 2800.3, evasion of a peace officer causing death or serious bodily injury, cannot support a charge of felony-murder.Defendant was convicted of second degree murder, evading an officer causing death, and other offenses. The prosecution presented two theories of murder, second degree felony murder, and implied malice murder. The jury was not advised that the mental state for a felony murder conviction based upon the commission of section 2800.3 requires a finding the defendant had the specific intent to cause death or serious injury. The jury was told by the prosecutor all that was necessary was the intent to flee. The felony-murder instructions allowed a conviction without the mental state required for murder. The error was prejudicial since a rational jury could conclude that defendant drove with the intent to evade police but did not intend to kill or cause serious bodily injury.id: 15449
The trial court erred in failing to instruct on misdemeanor resisting an officer as a lesser included offense of felony obstruction of an officer under section 69.Defendant was convicted of obstructing or resisting a police officer in violation of Penal Code section 69. The trial court erred in failing to instruct on the misdemeanor crime of resisting arrest under section 148(a)(1) which sets forth two different types of offenses, one of which is a lesser included offense of section 69.id: 19970
Evading police under section 2800.2 is not inherently dangerous felony for purposes of the second degree felony-murder rule.The crime of driving with willful or wanton disregard for the safety of persons or property while fleeing from a pursuing officer, in violation of Vehicle Code section 2800.2, is not an inherently dangerous felony for purposes of the second degree felony-murder rule.id: 18322
Defendant should have been charged under the more specific escape statute which addressed the failure to return to confinement from a work furlough assignment.Defendant was charged with and convicted of escape under Penal Code section 4530, subd. (b). However, he should have been charged with the more specific escape provision under section
4530, subd.(c), which addressed the failure to return to confinement after an authorized absence. The court modified defendant's sentence from a violation of subdivision (b) to a violation of subdivision (c).id: 19181
Failure to return from an overnight furlough does not constitute escape from a juvenile facility.Defendant was committed to an Orange County juvenile facility. He was granted an overnight visit to his parents' home and he failed to appear at the designated meeting point to be transported back to the juvenile facility following his visit. While it is clear that he violated his furlough release agreement, he did not escape from a county juvenile facility within the meaning of Welfare and Institutions Code section 871.id: 10800
Defendant's testimony that he did not drive recklessly supported an instruction on misdemeanor evasion of an officer as a lesser included offense.Defendant was convicted of felony evasion of a police officer pursuant to Vehicle Code section 2800.2. The only distinction between the felony and the misdemeanor offense under section 2800.1 is that in committing the greater offense the defendant drives the pursued vehicle in a willful or wanton disregard for the safety of person or property. Notwithstanding the officer's testimony to the contrary defendant testified he did not drive recklessly. The evidence therefore supported an instruction on the misdemeanor as a lesser included offense. The proper remedy was to modify the judgement to a conviction of the lesser included offense.id: 10798
In a prosecution for obstructing and resisting a peace officer in the performance of his duties the court has a sua sponte duty to instruct on exigent circumstances as part of the necessary criteria for determining the lawfulness of the arrest.Defendant was charged with obstructing an officer in the performance of his duties (Penal Code section 148, subd. (b)) and forcibly resisting a peace officer in the performance of his duties (section 69). In a prosecution for these offenses, the existence or not of exigent circumstances, upon which the People relied to justify the entry of peace officers into defendant's home to arrest him without a warrant, is an issue for the jury invoking the trial court's duty sua sponte to instruct thereon. However, the court's error in failing to instruct on exigent circumstances as part of the necessary criteria for determining the lawfulness of the arrest was not prejudicial where the evidence on that issue before the jury was substantial and it was not in conflict.id: 10803
Trial court erred in failing to instruct that forcible escape requires personal use of force or aiding and abetting its use.A prisoner escaping from a county jail who neither personally used force or violence nor aided and abetted its use may not nevertheless be convicted of forcible escape simply because other prisoners used force in their escape and the defendant prisoner merely took advantage of the situation. The trial court's failure to instruct on the element of force required reversal with directions that if the People did not bring defendant to trial on the forcible escape charge the judgment would be modified to reflect a conviction of simple escape.id: 10806
Felony escape statute does not apply to minors detained in juvenile hall.Appellant escaped while being transported back to juvenile hall following his sentencing hearing. He was charged with felonious escape pursuant to Penal Code section 4532, subdivision (b). However, the conviction was reversed as he could only have been prosecuted under Welfare and Institutions Code section 871, a misdemeanor which covers escape from juvenile hall. This statute preempts the more general provisions of the felony escape statute.id: 10801
Finding that the minor escaped from a county facility was reversed where there was no evidence the privately run, group home facility was included in the provision.The juvenile court sustained an allegation finding the minor escaped from a county facility within the meaning of Welfare and Institutions Code section 871. However, the minor was in a privately run group home facility which was an alternative to the Juvenile Hall Detention Facility. Because the prosecution failed to show the facility was one defined under section 872, the finding was reversed.id: 10802
Accused who was out-of-custody at the time of his arraignment when he ran from the courtroom may not be convicted of escape under section 4532, subdivision (b)(1).An out-of-custody accused ran from the courtroom when the judge ordered him remanded and indicated a bail hearing would be held later in the day. The evidence was insufficient to support a conviction of escape pursuant to Penal Code section 4532 subdivision (b)(1).id: 15580
Plain clothes officer wearing a badge was not in a "distinctive uniform" for purposes of evading police provision.Defendant was convicted of evading a police officer. The evidence was insufficient to show the plain clothes officer wore a "distinctive uniform" under Vehicle Code section 2800.1. The officer's badge is not an article of clothing, and while it may help to distinguish a law enforcement officer, it does not constitute a "distinctive uniform."id: 15584
Escape conviction was reversed where defendant never left the grounds although he was outside the permissible area.Defendant was convicted of escape from a state prison camp facility pursuant to Penal Code section 4530, subd. (b). The evidence showed he remained within the camp or prison barriers, but was outside the particular area where he was permitted to be. While the evidence may be sufficient to show he violated prison rules, it was insufficient to support his conviction for escape.id: 15583
Defendant did not take or remove the officers weapon under section 148, subdivision (c) where he ran into the officer causing the gun to fall to the ground.An officer had his gun drawn on defendant. Defendant slammed into the officer causing the gun to fall. Defendant did nothing to exercise dominion or control over, or even to touch the weapon. The evidence was insufficient to support the conviction of removing or taking the firearm from a peace officer while resisting arrest pursuant to Penal Code section 148, subdivision (c).id: 15582
Conviction of evading an officer was improper since it was a necessarily included offense of evading an officer causing serious injury.Defendant was convicted of evading a peace officer causing death or serious bodily injury under Vehicle Code section 2800.3, as well as evading a peace officer under section 2800.1. However, the latter was a necessarily included offense of the former, and the conviction was stricken.id: 15581
Welfare and Institutions Code section 871 does not apply to a juvenile committed to a county facility who escapes from a site he has been taken for a "working field trip." A minor was committed to a juvenile facility. He and others were taken by probation counselors on a working field trip to the Kidseum in Santa Ana. He escaped from the building and was later found by the juvenile court to have violated Welfare and Institutions Code section 871. However, that provision, as presently written, does not apply to a juvenile committed to a juvenile facility who escapes from a site to which has been taken for a "working field trip."id: 16821
Defendant was subject to a single evading conviction even though the pursuit involved multiple officers and vehicles.The trial court found that multiple counts and convictions of evading an officer under Vehicle Code section 2800.2 were permissible because each count named a different officer. The evading was a single course of conduct, i.e., one continuous act of driving lasting 30 minutes. The trial court's finding was erroneous and the defendant could only be convicted of one count of evading even though the pursuit involved multiple police vehicles.id: 17283
Evading a pursuing officer conviction was reversed where the officer failed to testify that the overhead light he activated was red.Defendant was convicted of evading a pursuing officer in violation of Vehicle Code section 2800.2. In such a case, the prosecutor must prove, among other things, that the police activated at least one red lamp that was visible from the front of the car. The officer in the present case testified only that he "activated his overhead emergency lights with the siren." However, there was no evidence that the lights the officer activated were red.id: 17149
Being away from home did not constitute an escape for a minor who was in a home confinement program.Minor who had been committed to the Youth Guidance Center, was released to his parents' home to serve out the remainder of his 30-day term. While the minor was at home under the home confinement program he was not under the custody of a probation officer in a county juvenile hall and therefore being away from his home did not constitute escape within the meaning of Welfare and Institutions Code section 871.id: 10793
Updated 2/22/2024No lesser included offense instruction was required where the prosecution proceeded on the theory of section 69, for which section 148 (a)(1) was not an LIO. Defendant argued the trial court erred in refusing to instruct on Penal Code section 148 (a)(1) (willfully resisting or delaying an officer) as a lesser included offense of section 69 (attempting to deter an officer from performing a duty by threat or violence). However, section 69 can be violated in two different ways. Section 148 (a)(1) is a lesser included offense of one of those ways, but the prosecution proceeded on the other theory so the instruction was not required.id: 27081
Updated 2/7/2024Resisting arrest provision does not require actual knowledge that the person resisted was a police officer. Defendant was convicted of resisting arrest. The trial court did not err by instructing with CALCRIM No. 2656, which permitted the jury to convict him of resisting arrest if it found that he knew, or “reasonably should have known” the person he was resisting was a police officer. Contrary to defendant’s claim, Penal Code section 148 (a) (1) does not require actual knowledge that the person resisted was a police officer.id: 27128
Updated 2/4/2024Reckless driving is not a lesser included offense of felony evasion. Defendant argued the trial court erred in failing to instruct sua sponte on reckless driving (Vehicle Code section 23103) as a lesser included offense of felony evasion of an officer (section 2800.2). However, the statutory elements of the latter do not include all of the elements of reckless driving and so reckless driving is not a lesser included offense.id: 27313
Updated 2/1/2024Resisting a police officer is not a lesser included offense of wanton disregard while fleeing.Resisting an officer under Penal Code section 148(a)(1) is not a lesser included offense of fleeing a police officer while driving, with a willful or wanton disregard for the safety of persons or property under Vehicle Code section 2800.2.id: 27997
Section 654 did not require a stay of execution on either the resisting arrest or battery on an officer convictions where multiple officers were involved.Defendant argued the trial court erred in failing to stay execution of sentence on either his resisting arrest conviction or battery on a police officer conviction. He claimed that because both offenses were incident to his sole objective to escape, Penal Code section 654 precluded him from being punished for both. However, the multiple victim exception to section 654 applied because defendant committed acts of violence against more than one victim; he resisted arrest by four different officers and battered one of them.id: 18804
The courtroom was a detention facility for purposes of the gassing statute.Defendant was convicted of gassing in violation of Penal Code section 243.9, subd. (a) for having spit in the face and chest of a sheriff’s deputy who was returning him to the lockup from a courtroom. Contrary to the defendant’s claim, the courtroom was a “local detention facility “within the meaning of section 243.9.id: 25927
Felony evasion can be committed while driving on a private road.Defendant was convicted of felony evading of a peace officer while driving recklessly under Vehicle Code section 21107.7. He argued the offense can only occur for someone driving on public roads or highways. However, the offense is not limited to driving on highways and can be committed, as here, on a private road or private land.id: 25841
The officer’s use of excessive force after defendant resisted arrest did not invalidate the section 148, subd.(a)(1) conviction. If a defendant delays, obstructs, or resists an officer who is engaged in the lawful performance of his or her other duties, the defendant may be convicted of violating Penal Code section 148, subd.(a)(1) even if the officer uses excessive force after the completed violation.id: 25826
Minor’s attempt to resist deputy’s efforts to stop her from leaving sheriff’s station after an investigation while her mother was on the way to pick her up supported the resisting an officer finding. Evidence supported the juvenile court’s finding that the minor resisted an officer in the discharge of her duties under Penal Code section 148, subd.(a). The minor argued that she was not in lawful custody at the time of the incident so there could be no resisting offense. However, the minor had earlier been brought to the sheriff’s department for investigation relating to a stolen vehicle. When the investigation ended she was placed in an area she could sit and wait until her mother could pick her up. The scuffle took place while the deputies tried to prevent her from leaving the station. The deputy was lawfully exercising her duties when the minor resisted.id: 25688
Evasion of pursuing officer statute doesn’t create a mandatory presumption by allowing proof of three traffic violations to establish reckless disregard for safety.Defendant was convicted of evading an officer while driving with a reckless disregard for safety in violation of Vehicle Code section 2800.2. He argued that section 2800.2, subd.(b) establishes a mandatory presumption by allowing the state to prove reckless disregard based on the commission of three traffic violations. However, section 2800.2, subd.(b) doesn’t create an improper presumption regarding the required mental state, it modifies the statutory elements of the offense.id: 25504
Evidence supported defendant’s escape conviction where he voluntarily left his mother’s house during the assigned curfew hours. Defendant argued the evidence was insufficient to support his conviction of escape for leaving his mother’s house, which was his assigned place of confinement under an alternative custody agreement. However, he was required to be there from 8:00 p.m. to 6:00 a.m. and he voluntarily left at 2:36 a.m. The escape was complete when he walked out the door. Contrary to defendant’s claim, he was not evicted by his mother, he voluntarily left after electing not to abide by her rules.id: 24991
Disabled defendant who told the officer, “you’re dead... if you keep this shit up” was properly convicted of deterring an officer from performing his duties.Evidence supported defendant’s conviction of attempting to deter a police officer from performing his duties. He said the officer was “dead... if you keep this shit up.” Even though defendant was disabled and in a wheelchair, the officer reasonably feared defendant might shoot him.id: 24885
The juvenile court’s comments did not show a misunderstanding of the laws on resisting arrest. The minor was found to have resisted an officer under Penal Code section 148 and forcefully resisted an officer under section 69. He argued the juvenile court’s comments showed a misunderstanding of the law requiring a reversal. Both provisions require the defendant’s actual knowledge that the officer was acting in an official capacity. The court commented, “Whether you think the police have the right to detain you... you don’t get to resist.” The court’s comment may have been directed at another charge. The court also found that each element, including the actual knowledge requirement had been proven beyond a reasonable doubt.id: 26291
Defendant was properly convicted of escape from home detention where he left work early and did not go directly home and was thereafter arrested for drunk driving and hit and run.Defendant was convicted of escape from his home detention program in violation of Penal Code section 4532, subd.(b). He had signed an agreement before entering the program that required him to “immediately” go “directly” home if he left work early. His assertion that his failure to return was not willful because he was authorized to be away from home until the deadline for returning home at the end of a normal workday was unavailing. id: 24739
Evidence supported the felony evasion convictions for the passengers in the getaway car.Defendants argued that because they were passengers, the evidence was insufficient to support the felony evading an officer convictions under Vehicle Code section 2800.2. However, given the evidence that the execution of the burglaries included the use of a getaway car to avoid apprehension, defendants certainly would have foreseen the driver’s reckless driving in evading the police.id: 24656
The trial court had no sua sponte duty to instruct on the lesser offense of misdemeanor evasion for the passengers in the getaway car.Defendants who were passengers in a getaway car, argued the trial court erred by failing to instruct, sua sponte, on the lesser included offense of misdemeanor evading. However, there was no evidence that defendants may have committed the lesser offense but not felony evading. Their own conduct during the evasion and after the getaway car crashed demonstrated a complete disregard for the safety of others.id: 24657
The trial court did not err by admitting evidence of an attempted escape where defendant described his plan to another inmate, obtained hacksaw blades and sawed through the bars of his cell. Defendant argued the trial court erred by admitting evidence of an attempted jail escape because his actions did not go beyond planning. However, defendant’s attempted escape was demonstrated by his statement to a fellow inmate that he was planning to escape by holding a guard at knifepoint. He committed acts to effectuate the intent when he obtained hacksaw blades, severed the bars to his cell and armed himself.id: 24292
Evidence showed defendant committed escape by force where he cut off his GPS monitoring device, mailed it to the sheriff and then flew to Pennsylvania.While on home detention, defendant cut off his global positioning system (GPS) electronic monitoring device, mailed it to the sheriff, and flew to Pennsylvania. This conduct constituted escape by force in violation of Penal Code section 4532, subd.(b)(2). Trial counsel did not render ineffective assistance of counsel by recommending a guilty plea and not challenging the legality of the charge. id: 23881
Forceful resistance of an officer by itself supports a violation of section 69 even without proof that force was directed toward or used on an officer.Resisting arrest under Penal Code section 69 does not require proof that defendant used force against or on the executive officer in the performance of his or her duties. The provision was violated here where the defendant forcefully attempted to escape restraint and dragged the officer several feet during the process.id: 23436
The trial court did not err in failing to instruct on resisting under section 148 as a lesser indicted offense of section 69 where there was insufficient evidence to show defendant violated section 148.Resisting a public officer under Penal Code section 148, subd.(a)(1) was a lesser included offense of resisting an executive officer under section 69 as alleged in the information. However, because the record did not contain substantial evidence that defendant violated the former without also violating the latter, the trial court was not required to instruct on section 148, subd.(a)(1). id: 23247
The trial court did not err by refusing to instruct on misdemeanor resisting a peace office as an LIO of resisting an officer under section 69.Defendant was convicted of two counts of resisting an executive officer in violation of Penal Code section 69. The trial court did not err by refusing to instruct on misdemeanor resisting a peace officer (section 148, subd.(a)(1)) as a lesser included offense because the record shows no way in which the jury could have rejected the greater offense but not the lesser.id: 22614
Defendant who was belligerent and aggressive with firefighters and deputies trying to put out a fire in his yard was properly convicted of violating section 69. Defendant told firefighters and deputies trying to put out a fire in his backyard to, among other things, “get the fuck” off his property. He also paced, clenched his fists, displayed his gang tattoos and aggressively approached an officer. But he stopped short of threatening to kill the officers and of physical violence. He was properly convicted of attempting by threat or violence to prevent an officer from performing his or her duty under Penal Code section 69. The First Amendment did not protect his speech. And the trial court did not err by failing to instruct that a threat under section 69 must be a “serious” expression of intent to inflict bodily harm because that is not an element of the crime.id: 22754
School security officers, like sworn police officers, fall within the protection of section 148(a)(1).A school security officer is a “public officer” for purposes of a misdemeanor charge of willfully resisting, delaying or obstructing a public officer in violation of Penal Code section 148, subd.(a)(1).id: 22764
Evidence supported defendant’s conviction for attempting to deter public officials where his email indicated he would shoot any game official seeking to eradicate mountain lions.The evidence supported defendant’s conviction for attempting to deter an executive officer in the performance of his duties in violation of Penal Code section 69. He sent an email proclaiming that he was armed and would fire on the Sheriff’s or Fish and Game Department Officials seeking to eradicate mountain lions. This was not protected First Amendment speech. That the email was not specifically sent to the intended victims did not matter, and section 69 does not require a showing that defendant had the present ability to carry out the threats. id: 22788
Defendant’s flight from a pursuing officer supported the conviction for resisting an officer under section 69.Defendant was convicted of deterring, preventing or resisting an officer by force or violence pursuant to Penal Code section 69. He argued the evidence was insufficient to show the officer was in the lawful performance of his duties when he detained the defendant because flight from an officer, by itself, does not establish reasonable suspicion of criminal activity. However the officer heard a police broadcast which said a man matching defendant’s description had just jumped out of a car that was being pursued by police. He then ran again after being told to stop. The facts demonstrate reasonable suspicion required for a lawful detention.id: 22814
The trial court did not err by excluding the hearsay statement that this was defendant’s first time as a basis for the defense expert’s testimony that defendant was not a pedophile.At defendant’s trial for attempting to meet a child online to have sexual activity, he argued the trial court erred by restricting the scope of the defense expert’s testimony. Specifically, the court excluded the hearsay statement that this was defendant’s first time as a basis for the expert’s testimony that he was not a pedophile. But the court did not err by excluding the hearsay evidence, and because the evidence was not reliable, the ruling did not interfere with the defendant’s constitutional right to present his defense.id: 22784
A pocket bike was a motor vehicle for purposes of evasion.Defendant was charged with evading a police officer while driving a motor vehicle in violation of Vehicle Code section 2800.2. At the time, defendant was driving a “pocket bike” - a two wheeled device with a motor and a seat. The pocket bike was a motor vehicle for purposes of the statute. Moreover, even though defendant committed a variety of infractions during the incident, no unanimity instruction was required where there was a single act of evasion.id: 22117
The trial court properly instructed the jury that the second type of offense within section 69, resisting an executive officer, is a general intent crime. Defendant argued the trial court erred by instructing the jury that resisting an executive officer under Penal Code section 69 is a general intent crime. The crime can be committed either by one who attempts by threat or force to deter an officer from performing his or her duty, or by one who knowingly resists by force or violence an officer in the performance of his or her duty. The mental state required depends upon the theory under which the prosecution proceeds. The trial court properly instructed the jury that the resistance prong of section 69, the theory on which the prosecution relied, was a general intent crime.id: 21864
A defendant may commit felony evasion under section 2800.2 even though the pursuing officer temporarily deactivated his red light when he momentarily lost sight of the offender. Defendant was convicted of evading a pursuing officer in violation of Vehicle Code section 2800.2. For purposes of this provision, an officer must activate a red light when in pursuit of a fleeing traffic offender. The fact that the officer deactivated his red light during the period he momentarily lost sight of defendant did not mean the officer was no longer in pursuit. id: 21308
A “pursuing” officer need not necessarily be driving behind defendant for purposes of evasion under section 2800.2.Defendant was convicted of evading an officer under Vehicle Code section 2800.2. He argued that he could not be convicted of the offense under the theory that he drove with a willful and wanton disregard for public safety because that theory requires a police pursuit, which he claimed did not happen because the officer did not drive behind him. However, the officer was pursuing defendant where he activated the siren and lights on the police car and drove on a parallel street defendant could see before blocking defendant at an intersection. Moreover, defendant’s driving the wrong way on a one-way street causing other drivers to swerve to avoid him constituted willful and wanton disregard for the safety of others.id: 21103
Defendant was properly convicted of and sentenced for three acts of resisting arrest where he resisted three different officers.Defendant argued that he could not be convicted of three separate counts of resisting a peace officer under Penal Code section 148, subd.(a). However, he resisted the arrest by three different officers and the statute provides that he could be convicted for each officer whose exercise of duty he resisted. Moreover, contrary to defendant’s claim, he could be separately punished for each count as the evidence supported the trial court’s implied determination that defendant had a separate objective for each violation of section 148.id: 20985
Court did not err in failing to instruct on misdemeanor resisting arrest as a lesser offense of exhibiting a deadly weapon to prevent arrest.Defendant was convicted of exhibiting a deadly weapon to prevent arrest under Penal Code section 417.8. He argued the court erred in failing to instruct on misdemeanor resisting or obstructing a peace officer under section 148, subdivision (a) as a lesser offense. However, section 148, subdivision (a) is not a lesser included offense of section 417.8. Moreover, in the facts of this case it was not a lesser related offense as the defendant never disputed that he used a screwdriver to fend off the police and there was no basis on which the jury could find the offense to be less than that charged.id: 10794
Question of whether the traffic violations are predicate offenses for felony evading provision is a question of law and there is no need for a jury determination. Defendant was convicted of evading an officer in violation of Vehicle Code section 2800.2. He argued the court erred by failing to submit to the jury the question whether the three traffic violations committed during the evasion showed willful and wanton disregard for others, elevating the offense to a felony. However, any three violations for which points are assessed are predicate offenses under section 2800.2 as a matter of law, so no jury findings were required. Moreover, for offenses not enumerated in section 12810, it is for the judge to determine whether they fall under the safety catch-all provision of that section (subdivision(f)). Finally, the judge was not required to specifically instruct the jury that the predicate offenses need be proven beyond a reasonable doubt.id: 19327
Defendant willfully obstructed justice under section 148(a)(1) by giving a false name to police following his arrest.Evidence showing that defendant falsely identified himself to police following a lawful arrest was sufficient to support the conviction for willful obstruction of a peace officer in the discharge of, or attempt to discharge, his or her duties under Penal Code section 148(a)(1). Moreover, the availability of punishment under section 148.9(a) for the same conduct did not bar his conviction under section 148(a)(1).id: 18947
Section 2800.2, subd. (d) does not create a mandatory resumption by allowing a finding of willful or wanton conduct based on the commission of three traffic offenses.Defendant was convicted of driving with a willful or wanton disregard for safety while fleeing from police in violation of Vehicle Code section 2800.2. He argued the Legislature's addition of subdivision (b) to section 2800.2 created an unconstitutional mandatory presumption by allowing a finding of willful or wanton disregard based solely on a finding the
defendant committed three traffic offense resulting in violation points, thus relieving the prosecution of it burden of proving willful or wanton disregard. However, subdivision (b)provides a definition of substantive law, and does not create an impermissible mandatory presumption.
id: 18965
A person "willfully resists" a peace officer when that person flees from an officer attempting a lawful arrest.Defendant was charged with violating Penal Code section 148.10 - willfully resisting a peace officer resulting in death or injury. The trial court erred by concluding that flight by the defendant does not constitute "willful resistance" for purposes of that provision.id: 18780
Resisting an officer under section 148 is not a lesser included offense of section 69.Defendant was convicted of resisting arrest under Penal Code section 90. He argued the court should have instructed on resisting an officer while discharging his duties under section 148 as a lesser included offense of section 69. However, section 148 is not a lesser included offense of section 69 because section 69 can involve a present attempt to deter an officer's future duty.
id: 18592
All felony violations of the dissuading a witness statute, including those not involving force or threats, are serious felonies under section 1192.7, subd. (c)(37).Penal Code section 136.1, subdivisions (a) and (b) require that a defendant knowingly and maliciously prevent or dissuade (or attempt to prevent or dissuade) a witness from testifying. These offenses are wobblers. Subdivision (c)(1) adds force as an element of the offense and converts it to a straight felony. Defendant argued that only violations of section 136.1, subd. (c)(1) are violent felonies within the meaning of section 1192.7, subd.(c)(37). However, the court found that all felony violations of section 136.1 are serious felonies under that provision.id: 18259
A parolee being arrested for a parole violation was properly convicted of escape where he fled during the attempted arrest.Officers lost control over defendant while arresting him and he fled the scene. His flight constituted an escape under Penal Code section 4532, but only because he was a parolee in lawful custody for a parole violation. The court's instruction defining "escape" was deficient for failing to define "prisoner," and the court's definition of "lawful custody" was too broad. However, the instructional error was harmless in light of the undisputed evidence that defendant was a parolee subject to an arrest warrant for violating his parole at the time of the attempt to arrest him on that warrant.id: 18163
Allowing proof of willful conduct in evasion statute by proof of three traffic infractions does not constitute an improper mandatory presumption.Evading an officer under Vehicle Code section 2800.2 requires proof that defendant was attempting to elude a pursuing officer and that he was driving with a willful or wanton disregard for the safety of others. Under section 2800.2, subd.(b) (added in 1996), the prosecution can prove willful or wanton disregard for safety by showing three one point traffic violations, or property damage. The jury was instructed in this regard pursuant to CALJIC 12.85. Defendant argued section 2800.2, subd.(b) constitutes a constitutionally prohibited mandatory presumption which told the jury willful or wanton conduct was established by three traffic violations. However, the provision does not state a mandatory presumption. Rather it merely defines in precise terms, one way in which the prosecution may prove the element of willful or wanton disregard for the safety of others.
id: 17581
Resisting an officer is not a lesser included offense of deterring an officer.Defendant was convicted of deterring an officer from performing a lawful duty under Penal Code section 69, and resisting an officer in the discharge of an official duty. On the premise that resisting is a lesser included offense of deterring, he argued the judgment violated the rule against grounding multiple convictions in necessarily included offenses. However, resisting is not a lesser included offense of deterring since one can deter an officer's duty in the future without resisting the officer's discharge of a duty at the time. Since resisting is not a lesser included offense of deterring the judgment does not violate the proscription against multiple convictions.id: 17202
Court had authority under section 121060 to order AIDS test for defendant who assaulted an officer and whose sweaty hands may have come in contact with the officer's abrasion.Defendant was convicted of felony assault on a public official and misdemeanor resisting, delaying and obstructing an officer. He argued that following the conviction, the court lacked the authority to order that he be tested for AIDS or other communicable diseases. While the court cited no authority for the order, the testing is provided for under Health and Safety Code section 121060. The fear was that defendant's sweaty hands came in contact with the officer's abrasion, while defendant resisted the handcuffing. Defendant argued sweat cannot carry an infection and is therefore not a bodily fluid under section 121060. However, sweat is a bodily fluid under that provision and such an interpretation does not violate privacy rights, is not an unreasonable search and does not violate equal protection principles.id: 17002
Evidence supported the conviction for obstructing or delaying an officer where defendant refused police orders to stop talking with a man in the back seat of the police car and this delayed the processing of the arrested man's car.Police arrested Robinson and placed him in the back of the patrol car. Defendant then approached the car and spoke with Robinson. Police ordered defendant away from the car but he continued his conversation. When he was again ordered to move away, he responded by extending his hand raising his palm towards the police officers. Thereafter, he walked away and was arrested after a verbal exchange. At trial, the officer testified he was processing Robinson's car (which contained contraband) at the time defendant appeared, and he had to stop and take the time to "deal with" defendant. Evidence supported the finding that he resisted, delayed or obstructed the police under Penal Code section 148, subd.(a).id: 16684
A person who takes part in a riot leading to his escape from custody can be convicted of his own lynching.Under California law (Penal Code section 405), "lynching" includes not only the notorious form of lynch mob behavior that aims to take vengeance on the victim, but also any riotous conduct aimed at freeing a person from the custody of a peace officer. Contrary to defendant's claim, a person who takes part in a riot leading to his escape from custody can be convicted of his own lynching.id: 15579
Red light and siren on unmarked police car may constitute distinctive markings for felony evading statute.Defendant argued there was insufficient evidence to support his conviction for felony evading an officer under Vehicle Code section 2800.2 because the police vehicle giving chase was not distinctively marked. He claimed the red light and siren mounted on the windshield of an otherwise unmarked car did not satisfy the distinctive marking element. However, the court held there was no reason to conclude, as a matter of law, that a lighted red lamp and siren reasonably sounded cannot serve to identify an unmarked car as a distinctively marked police vehicle.id: 15585
Red lights and siren in unmarked car were sufficient to inform defendant he was evading a police car.Defendant was convicted of evading a police officer. He argued the evidence was insufficient to support the conviction because the officer was driving an unmarked car. However, the red lights, siren and wigwag lights were sufficiently distinctive markings to inform any reasonable person he was being pursued by a law enforcement vehicle.id: 15586
Pit bulls were deadly weapons for purposes of resisting arrest statute.Defendant was convicted of exhibiting a deadly weapon in order to prevent arrest in violation of Penal Code section 417.8. The deadly weapons were pit bulls. Contrary to the defendant's claim, the pit bulls were properly characterized as deadly weapons where they were in an extremely agitated state (prompted by defendant's actions) and reacted to what they perceived to be intruders on their property who threatened the safety of the owners.id: 15543
Juvenile hall group counselor was public officer within the meaning of Penal Code section 148.Minor, a juvenile hall ward, was engaged in a fight with another ward. His group counselor attempted to break up the fight and the minor resisted. He was alleged to have resisted a public officer in the discharge or attempted discharge of her official duties in violation of Penal Code section 148. The court found the allegation true. While the counselor was a peace officer within the meaning of section 830.5, subd. (b), the court erred in relying on section 831 which describes a custodial officer. By its express terms, a custodial officer within the meaning of that section, excludes a peace officer. However, the application of section 831 was not prejudicial.id: 10804
Terms for forcible escape conviction must be imposed fully consecutive to other terms.Penal Code section 4532 provides that a violent escape by a felon from county jail shall be punished by two, four, or six years in state prison to be imposed consecutive to any other terms, commencing from the time he or she otherwise would have been released and the term shall not be subject to reduction pursuant to section 1170.1, subdivision (a). When computing the aggregate term of consecutive sentences for multiple offenses when a forcible escape is included among them, the sentencing court must postpone consideration of the escape conviction in favor of first structuring the consecutive sentences for the remaining convictions in whatever manner it chooses. It then must select the appropriate term for the escape conviction, which must be imposed fully consecutive to the other terms.id: 10805
Court did not prejudicially err in refusing to instruct on obstructing an officer (section 148, subdivision (a)) as a lesser related offense of resisting an officer (section 69) where the jury specifically rejected the intoxication defense.Defendant argued the trial court erred in refusing to instruct the jury on the crime of obstructing a police officer, in violation of Penal Code section 148, subdivision (a), a lesser related offense of attempting to deter an officer from performing duties in violation of section 69. However, while evidence of defendant's intoxication was strong, the jury's verdict on the hate crime represents a finding that defendant's intoxication did not affect his ability to possess specific intent and a considered rejection of his intoxication defense.id: 10795
Defendant was on notice that he was being pursued by police where the unmarked car had police lights and the officers wore POLICE vests and baseball caps.Defendant was convicted of driving recklessly while fleeing from a police officer (Vehicle Code section 2800.2). He argued reversal was required because the police car was unmarked and the occupants of the car were not wearing police uniforms. However, the unmarked car was equipped with wigwag lights and flashing blue and clear lights adequately identifying it as a police vehicle. Moreover, one officer was wearing a bullet proof vest bearing the word POLICE and the other wore a police department vest, cloth badge, gun belt and navy blue baseball cap marked POLICE in bright yellow lettering. The fleeing defendant was on reasonable notice that he was being pursued by police.id: 10796
Defendant's refusal to reveal his identity during a booking interview constituted resisting an officer.Defendant's refusal to reveal his identity in the booking interview following his felony arrest supported his conviction of resisting a peace officer pursuant to Penal Code section 148.id: 10797
Failure to instruct that misdemeanor obstructing an officer was a lesser included offense within felony resisting was not prejudicial where the court did instruct that the misdemeanor was a lesser included offense within the felony batteries.Following an altercation in the jail with Long Beach security officers appellant was charged with three counts of resisting an executive officer (a felony under Penal Code section 69) and three counts of battery upon a custodial officer (section 243.1). The court instructed the jury that misdemeanor obstructing an officer (section 148) was a lesser offense of the felony battery counts. Appellant argued the court erred in failing to instruct that section 148 was a lesser included offense of the resisting an executive officer counts. However, it was of no significance that the court characterized section 148 as a lesser included offense within section 243.1 rather than within section 69. The jury was fairly presented with all three offenses and was free to find appellant's conduct violated all, some, or none of them.id: 10799
A screwdriver can be a deadly weapon for purposes of section 417.8 - exhibiting a deadly weapon to prevent arrest.Defendant was convicted of exhibiting a deadly weapon to prevent arrest. He argued that a screwdriver is not a deadly weapon for purposes of that statute. However, the exhibition of a screwdriver to a peace officer with the intent to resist or prevent arrest is a violation of Penal Code section 417.8.id: 10636
Resisting arrest statute is not constitutionally overbroad.Petition alleged the minor did unlawfully resist delay and/or obstruct a public officer thereby violating Penal Code section 148. Minor argued that words alone can be construed as sufficient to satisfy the elements of resistance, delay or obstruction. He concluded that the statute encompasses constitutionally protected speech, and is therefore overbroad in its reach. While it may be possible to violate section 148 through speech, the provision deals with core criminal conduct. Because it does not reach a substantial amount of protected conduct it is not constitutionally overbroad.id: 9500
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
The case of the day summarizes a current case and is viewed by lawyers and judges around the state every day.
Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245