Offense
Causing serious bodily injury or death while resisting arrest
Aggravated Felony (AF)
Yes assume AF as obstruction of justice if a year or more is imposed. See Advice.
Shd not be a COV
Crime Involving Moral Turpitude (CIMT)
Arguably not a CIMT. See Advice.
This means that if a sentence of a year or more can be avoided, this is not a removable offense.
Other Removal Grounds
No other removal ground.
Advice and Comments
AF. Obstruction of justice is an AF, if a year or more is imposed. Counsel must assume conservatively that PC 148.10 meets the definition of obstruction. See discussion of the Supreme Court decision on obstruction, Pugin v. Garland, No. 22-23 (June 22, 2023), at Advice to PC 32, above, and at ILRC, Obstruction of Justice: Pugin and California Offenses (July 2023).
If a year or more sentence is required, consider safer offenses such as 236/237, 487, 459/460(a) or (b), 591, or possession of a weapon.
For information on how to structure a sentence to avoid a year for immigration purposes, see § N.4 Sentence.
CIMT, COV. Arguably 148.10 is not a COV or CIMT because it can be committed with no contact, no recklessness, and no intent beyond escape. For example, conviction was upheld when a suspect ran away from officers and the officers fell and injured themselves while pursuing the suspect in the dark.1Pen C 148.10 covers injury an officer sustains while they chase an individual who has fled from police but has not used or risked force. People v. Superior Ct. (Ferguson), 132 Cal. App. 4th 1525, 1535 (2005) (running away from officer constitutes resisting arrest, and when officers injured themselves while pursuing the person on foot at night, this was sufficient for guilt under PC § 148.10). See also United States v. Medina-Fructuoso, 472 F. App’x 758, 759 (9th Cir. 2012), an unpublished decision where parties agreed that PC § 148.10 is not a crime of violence.
Unlike PC § 243(d), which involves de minimis force (and which the Ninth Circuit, arguably incorrectly, held is a crime of violence), § 148.10 does not require any force at all used against another person. Accordingly, it should be more analogous to the precedent preceding US v. Perez. Before Perez, the BIA recognized that § 243(d) is not a CIMT. See Matter of Muceros, A42 998 610 (BIA 2000) Indexed Decision. (BIA “Indexed” decisions are not precedent decisions but are intended to provide guidance to government. Formerly, Indexed decisions were available to the public on the BIA website). Muceros held that because the minimum conduct to commit Pen C § 243(d) is touching without intent, it is not a CIMT. Muceros was cited in Uppal v. Holder, 605 F.3d 712, 718-719, 718-719 (9th Cir. 2010), holding that a Canadian statute that did not require intent to harm similarly is not a CIMT.