Commentary
Resisting, obstructing, or delaying a police officer or emergency worker.
Standard Punishment
One year jail
Relevant Statutes
(a) (1) Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.
(2) Except as provided by subdivision (d) of Section 653t, every person who knowingly and maliciously interrupts, disrupts, impedes, or otherwise interferes with the transmission of a communication over a public safety radio frequency shall be punished by a fine not exceeding one thousand dollars ($1,000), imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(b) Every person who, during the commission of any offense described in subdivision (a), removes or takes any weapon, other than a firearm, from the person of, or immediate presence of, a public officer or peace officer shall be punished by imprisonment in a county jail not to exceed one year or pursuant to subdivision (h) of Section 1170.
(c) Every person who, during the commission of any offense described in subdivision (a), removes or takes a firearm from the person of, or immediate presence of, a public officer or peace officer shall be punished by imprisonment pursuant to subdivision (h) of Section 1170.
(d) Except as provided in subdivision (c) and notwithstanding subdivision (a) of Section 489, every person who removes or takes without intent to permanently deprive, or who attempts to remove or take a firearm from the person of, or immediate presence of, a public officer or peace officer, while the officer is engaged in the performance of his or her lawful duties, shall be punished by imprisonment in a county jail not to exceed one year or pursuant to subdivision (h) of Section 1170.
In order to prove a violation of this subdivision, the prosecution shall establish that the defendant had the specific intent to remove or take the firearm by demonstrating that any of the following direct, but ineffectual, acts occurred:
(1) The officer’s holster strap was unfastened by the defendant.
(2) The firearm was partially removed from the officer’s holster by the defendant.
(3) The firearm safety was released by the defendant.
(4) An independent witness corroborates that the defendant stated that he or she intended to remove the firearm and the defendant actually touched the firearm.
(5) An independent witness corroborates that the defendant actually had his or her hand on the firearm and tried to take the firearm away from the officer who was holding it.
(6) The defendant’s fingerprint was found on the firearm or holster.
(7) Physical evidence authenticated by a scientifically verifiable procedure established that the defendant touched the firearm.
(8) In the course of any struggle, the officer’s firearm fell and the defendant attempted to pick it up.
(e) A person shall not be convicted of a violation of subdivision (a) in addition to a conviction of a violation of subdivision (b), (c), or (d) when the resistance, delay, or obstruction, and the removal or taking of the weapon or firearm or attempt thereof, was committed against the same public officer, peace officer, or emergency medical technician. A person may be convicted of multiple violations of this section if more than one public officer, peace officer, or emergency medical technician are victims.
(f) This section shall not apply if the public officer, peace officer, or emergency medical technician is disarmed while engaged in a criminal act.
(g) The fact that a person takes a photograph or makes an audio or video recording of a public officer or peace officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place he or she has the right to be, does not constitute, in and of itself, a violation of subdivision (a), nor does it constitute reasonable suspicion to detain the person or probable cause to arrest the person.
Standard Jury Instruction
The jury will generally be instructed pursuant to CalCrim 2656, which is summarized as follows:
The defendant is charged with resisting, obstructing, or delaying a peace officer or emergency medical technician in the performance or attempted performance of his duties in violation of Penal Code section 148(a).
To prove that the defendant is guilty of this crime, the People must prove that:
1. John Jones was a peace officer or emergency medical technician lawfully performing or attempting to perform his duties as a peace officer or emergency medical technician;
2. The defendant willfully resisted, obstructed, or delayed Mr. Jones in the performance or attempted performance of those duties;
AND
3. When the defendant acted, he knew or reasonably should have known, that John Jones was a peace officer or emergency medical technician performing or attempting to perform his duties.
Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.
A person who is employed as a police officer by The Bakersfield Police Department is a peace officer.
An emergency medical technician is someone who holds a valid certificate as an emergency medical technician.
The duties of a peace offıcer or emergency medical technician include enforcing the laws of the State of California or rendering emergency aid as instructed by superiors in his department.
Taking a photograph or making an audio or video recording of a peace officer or emergency medical technician while the person is in a public place or the person taking the photograph or making the recording is in a place where he or she has the right to be is not, by itself, a crime.
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.
Instruction 2670 explains when an arrest or detention is unlawful and when force is unreasonable or excessive.
The People allege that the defendant resisted, obstructed, or delayed John Jones by doing the following: running when ordered to stop, jumping over a fence, and sitting when ordered to stand.
You may not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of the alleged acts of resisting, obstructing, or delaying a peace officer or emergency medical technician who was lawfully performing his or her duties, and you all agree on which act he committed.
If a person intentionally goes limp, requiring an officer to drag or carry the person in order to accomplish a lawful arrest, that person may have willfully resisted, obstructed, or delayed the officer if all the other requirements are met.
Special Jury Instructions
The following case law may be of benefit in preparing special jury instructions to defend against a resisting charge.
An officer does not have the right to use unreasonable force for any purpose. If an officer does use force in excess of that reasonably necessary to accomplish detention, he is acting outside of the scope of his lawful duty, and the person being arrested may use reasonable force under the circumstances, to protect himself from bodily injury. Under these circumstances, the use of reasonable force by the person being detained does not constitute resisting or delaying or obstructing a public officer in the discharge or attempt to discharge a duty of his office within the meaning of §148 of the Penal Code.
Authority: People v. Curtis, 70 Cal. 2d 347 (1969).
In this case the prosecution has introduced evidence that the defendant committed a violation of Penal Code § 148, resisting, obstruction or interfering with a peace officer in the lawful exercise of his duties. Several different actions are alleged as constituting the offense charged.
You are instructed that you may not find the defendant guilty of the offense unless you unanimously agree upon which specific actions of the defendant, if any, constitute the offense charged. In other words, even though you may generally agree that the defendant is guilty of the offense charged you may not find him guilty unless each of you agree upon the same specific action as the basis of the alleged offense.
Authority: People v. Moreno, 32 Cal. App. 3d 1, 9 (1973).
“The legal elements of a violation of § 148, subdivision (a), are as follows: (1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties.”
The “[d]efendant cannot be convicted of an offense against an officer engaged in the performance of official duties unless the officer was acting lawfully at the time.”
Authority: Quoted language is from People v. Simons, 42 Cal. App. 4th 1100, 1108-1109 (1996).
You must acquit the defendant unless you find that the prosecution has proven beyond a reasonable doubt the following elements of the crime here charged: (1) that the defendant acted willfully; (2) that the willful act or acts of the defendant produced delay or obstruction; (3) that the person delayed or obstructed was a police officer; and (4) that the person delayed or obstructed was making or attempting to make a lawful arrest or investigation in the performance of his official duties.
In your deliberation on these elements, if you find that the People have failed to prove any one of the elements beyond a reasonable doubt and to a moral certainty, you must acquit the defendant.
A police officer has the right to use only reasonable force to accomplish an arrest or detention. If an officer does use force in excess of that reasonably necessary to accomplish an arrest or detention, he is acting outside of the scope of his lawful duty, and the person being arrested or detained may use reasonable force under the circumstances to protect himself from bodily injury.
Authority: People v. Spinosa, 115 Cal. App. 2d 659, 664 (1953).
Merely arguing or protesting with an officer or criticizing an officer while he is performing his duty does not amount to obstructing an officer in the performance of his duty and does not constitute a violation of Penal Code § 148.
Authority: People v. Wetzel, 11 Cal. 3d 104 (1974).
“The crime of obstructing or resisting an officer in the performance of his duties . . .” requires “. . . an act done with the specific intent to interfere with the officer’s performance of his duties.” Without such specific intent that crime has not been committed.
Authority: Quoted language is from People v. Patino, 95 Cal. App. 3d 11, 27 (1980).