But first, watch this short video explaining this penal code section.
- What Is The Definition Of Resisting An Officer?
- How Does the Prosecutor Prove I Resisted An Executive Officer?
- How Can I Fight A Charge Of Resisting A Police Officer?
- What Are The Penalties?
What Is The Definition Of 69 PC – Resisting An Executive Officer?
The California penal code section 69 defines resisting an executive officer or police officer as two-fold.
- Any person who attempts to stop or to prevent an executive officer1 from performing his/her duty by using threat2 or violence; or
- Any person who knowingly resists such officer by the use of force or violence3.
This law is similar to resisting arrest under penal code 148(a)(1) except it is much more serious because under penal code 69 pc the officer is being threatened.
How Does the Prosecutor Prove I Resisted An Executive Officer?
To prove that you are guilty of this offense, the prosecutor has to prove the following facts or elements:
In the Case of the Attempt, the Following Elements Apply4:
- You willfully5 and unlawfully used violence or threat6 of violence7 to try to prevent/deter an executive officer from performing his/her lawful duty8
- You intended9 to prevent/deter the executive officer from performing his/her lawful duty
If a person who telephones an off-duty police officer at his or her home and threatens to kill the officer if he or she continues to pursue a lawful investigation may be convicted of resisting an executive officer, the first type of offense under section 69 (i.e. attempt), even though the officer was not engaged in the performance of his or her duties at the time the threat was made.10
In the Case of the Actual Resistance, the Following Elements Apply11:
- You unlawfully used force or violence to resist an executive officer;
- When you acted, the officer was performing his/her lawful duty; AND
- When you acted, you knew the executive officer was performing his/her duty12
Who Can Be Charged With Resisting A Police Officer?
Anyone who attempts, with specific intent, to prevent an officer from performing his lawful duty, OR anyone who with general intent uses force or a threat of force to do the same can be charged with the offense.
How Can I Fight A Charge Of Resisting A Police Officer?
There are several defenses that your attorney can assert on your behalf to fight a charge of resisting an executive officer under penal code 69.
The Officers Conduct Was Unlawful
If you were attempting to stop an executive officer’s conduct that was unlawful, you have not committed the offense:
If the defendant tries to stop an officer who is acting unlawfully by threatening to report him/her, the defendant’s threat is lawful.
Similarly, if the defendant actually uses force to prevent the officer’s unlawful conduct, the defendant’s act does not fall within the scope of this offense.
If this defense is employed by an attorney than a pitchess motion to determine possible complaints against the officer should be filed to determine if the officer has engaged in misconduct.
You Were Defending Yourself
If an officer uses unlawful force against you, you are entitled to resist his force against you by using reasonable force such as self-defense.
Such resistance will not be considered to fall within the scope of this offense, because the officer’s unlawful force against you is no longer considered to be a performance of his duties.
You Were Recording or Photographing Officer:
If the officer attempted to prevent you from recording or photographing the officer this does not fall under the scope of preventing an executive officer from performing his duty14
If you want to know more about your rights when videotaping the police watch this video:
What Are The Penalties And Punishment For Resisting An Executive Officer?
The severity of the penalties and sentencing under California Penal Code 69 PC depends on several factors, including your criminal history and the severity of the offense15.
Misdemeanor Penalty For Penal Code 69:
- A fine of up to $10,000; and
- Imprisonment in a county jail of up to but not exceeding one year.
- Misdemeanor probation
Felony Penalty For Penal Code 69:
- A fine of up to $10,000; and
- Imprisonment in a county jail for a period of 16 months, or 2-3 years, depending on the seriousness of the felony.
- Felony probation
- Penal Code 148(a)(1) pc – California’s “resisting arrest” law
- Criminal Threats | California Penal Code 422 pc
- False Representation of Identity to a Police Officer | 148.9 pc
Choosing An Attorney
Individuals who are facing charges of resisting an executive officer may have concerns about the serious penalties of this offense such as jail time and fines.
If you are facing these charges, you may have questions about whether your charges can be reduced or dismissed to avoid criminal prosecution.
At the Aizman Law Firm, our experienced attorneys can help you with questions you might have about resisting an officer charges, If you need to speak to an attorney about your case, please call our office at (818) 351-9555 for a free confidential consultation.
- An executive officer is a government official who may use his or her own discretion in performing his or her job duties. Some examples of an executive officer are: peace officer or commissioner. CALCRIM 2651
- As long as the threat reasonably appears to be a serious expression of intention to inflict bodily harm and its circumstances are such that there is a reasonable tendency to produce in the victim a fear that the threat will be carried out, a statute proscribing such threats is not unconstitutional for lacking a requirement of immediacy or imminence. Thus, threats may be constitutionally prohibited even when there is no immediate danger that they will be carried out.” (People v. Hines (1997) 15 Cal.4th 997, 1061 [64 Cal.Rptr.2d 594, 938 P.2d 388] [quoting In re M.S. (1995) 10 Cal.4th 698, 714 [42 Cal.Rptr.2d 355, 896 P.2d 1365], citation and internal quotation marks removed, emphasis in original]; see also People v. Gudger (1994) 29 Cal.App.4th 310, 320–321 [34 Cal.Rptr.2d 510]; Watts v. United States (1969) 394 U.S. 705, 707 [89 S.Ct. 1399, 22 L.Ed.2d 664]; United States v. Kelner (2d Cir. 1976) 534 F.2d 1020, 1027.
- California Penal Code 69 – Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty,is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both such fine and imprisonment.
- Penal Code 69; CALCRIM No. 2651, Trying to Prevent an Executive Officer From Performing his or her Duty
- Someone commits an act willfully when he or she does it willingly or on purpose. CALCRIM 2651
- A threat may be oral or written and may be implied by a pattern of conduct or a combination of statements and conduct. CALCRIM 2651
- The statute as written would prohibit lawful threatening conduct. To avoid overbreadth, this instruction requires that the defendant act both “willfully” and “unlawfully.” (People v. Superior Court (Anderson) (1984) 151 Cal.App.3d 893,895–896 [199 Cal.Rptr. 150].
- In order to be “performing a lawful duty,” an executive officer, including a peace officer, must be acting lawfully. In re Manuel G. (1997) 16 Cal.4th 805, 816–817 [66 Cal.Rptr.2d 701, 941 P.2d 880]; People v. Gonzalez (1990) 51 Cal.3d 1179, 1217 [275 Cal.Rptr. 729, 800 P.2d 1159].) A peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties.
- The defendant does not have to communicate the threat directly to the intended victim, but may do so through someone else. The defendant must, however, intend that (his/her) statement be taken as a threat by the intended victim. People v. Gutierrez (2002) 28 Cal.4th 1083, 1154 [124 Cal.Rptr.2d 373, 52 P.3d 572].
- In re Manuel G., supra, 16 Cal.4th at p. 817.
- Elements. Penal Code, section 69; CALCRIM No. 2651, Trying to Prevent an Executive Officer From Performing Duty (Penal Code, section 69).
- This is a general intent offense unlike the attempt portion of the same penal code section. People v. Roberts (1982) 131 Cal.App.3d Supp. 1, 9[182 Cal.Rptr. 757].
- If the Defendant threatens to report an officer who is acting unlawfully, the Defendant’s threat is lawful and does not qualify for a charge under this offense. CALCRIM 2651
- Merely Photographing or Recording Officers Not a Crime. Pen. Code, § 69(b).
-  Penal Code 69; Pen. Code §1170 (h