PC 148(a)-(d)

PC 148(a)-(d)

Offense

Resisting officer or EMT in discharge of duty (a)

Additionally, taking the officer’s weapon (b)-(d)

Aggravated Felony (AF)

Because of possible charge that (b)-(d) is AF as obstruction of justice, obtain 364 days or less on any single count.

See Advice

Crime Involving Moral Turpitude (CIMT)

See citations on CIMT.1Pen C 148 as CIMT. PC 148(a) should not be held a CIMT because it can be committed nonviolently and as a principled action, for example by using passive resistance in support of a nonviolent political demonstration. In re Bacon (1966) 240 Cal. App. 2d 34, 53, (“We hold, therefore, that a person who goes limp and thereby requires the arresting officer to drag or bodily lift and carry him in order to effect his arrest” violates PC § 148.), disapproved of on other grounds by In re Brown (1973) 9 Cal. 3d 612.

Courts have held that an element of all sections of PC 148 is that the defendant “must know, or through the exercise of reasonable care should have known, that the person attempting to make the arrest is an officer.” See People v. Lopez (1986) 188 Cal. App. 3d 592, 599-600, cited in CALCRIM 2656. This is a negligence standard, and negligence generally is held not to be a CIMT. While the statute does not appear to be divisible between know or should have known, best practice is to plead specifically to “should have known.” Note that “should have known” is not in the text of the statute, but was clarified in case law such as Lopez.

148(a) should not be CIMT: minimum conduct is, e.g., going limp in a peaceful demonstration.

Also, an element of 148(a)-(d) is that D knew or reasonably should have known the other was an officer. Negligence generally is not a CIMT. Try to plead specifically to should have known.

Other Removal Grounds

Assume conservatively that (c) and (d) are deportable firearms offenses, as courts might hold that the police on duty are not likely to be holding antique weapons, in case the antique firearm exception is held not to apply to weapons taken from police on duty.2Pen C § 148 uses language from the definition of firearm found at § 16250(a) (see CALCRIM 2653) which includes antique firearms. But the government may argue that it is impossible that officers engaged in their duties would be using antique firearms.

Advice and Comments

PC 148(a)-(d)

AF: See case citations and further discussion here.3Pen C § 148 as the AF “obstruction of justice.” An offense that meets the generic definition of obstruction of justice is an aggravated felony if a sentence of one year or more is imposed. 8 USC 1101(a)(43)(S). Getting a sentence of 364 days or less on each count will prevent an aggravated felony (AF) conviction.

Pen C 148(a) is not  obstruction of justice under Valenzuela Gallardo v. Barr, 968 F.3d 1053 (9th Cir. 2020) (“Valenzuela Gallardo II”), petition for rehearing denied. The Ninth Circuit defines obstruction to require interference with an ongoing proceeding or investigation, whereas § 148 includes interference in an initial arrest or in any duty, with no pending investigation or proceeding. This should be the result in immigration proceedings arising within the Ninth Circuit. See further discussion at Pen C § 32. Note that 148(a) – whose elements also appear in (b)-(d) — also involves interfering with emergency medical technicians.

It is preferable to get 364 days or less on each count, however, because of the risk that the person would end up in immigration proceedings outside the jurisdiction of the Ninth Circuit, either because the person traveled there or the person was detained by ICE and transferred. Some other circuit courts of appeals might adopt the BIA’s definition, which is that obstruction can include interference when a proceeding is reasonably foreseeable by the defendant. Matter of Valenzuela Gallardo, 27 I&N Dec. 449, 456 (BIA 2018).

Sections (b)-(d) include additional conduct: taking an officer’s weapon or gun. Completing the offense of taking or removing an officer’s gun while resisting arrest arguably does not make the offense more likely to constitute obstruction. It is general intent crime. People v. Matthews, 70 Cal. App. 4th 164, 175 (1999). CALCRIM 2654. See also 2 Witkin, Cal. Crim. Law 4th Crimes–Govt § 20 (2012). Removing or taking as used in Pen C § 148 includes conduct such as picking up a dropped gun, and corresponding to “grabbing, holding, seizing, pushing, lifting, picking up, or similar notions.” People v. Matthews, at 174. This shows that the offense also is not a crime of violence.
See also discussion at PC 32.

Obstruction of justice is an AF if a year or more is imposed. 8 USC 1101(a)(43)(S). As is discussed at PC 32, above, in Valenzuela-Gallardo II the Ninth Circuit held that the generic definition of obstruction requires interference with an ongoing proceeding or investigation. It held that because PC 32 can involve interfering with an initial arrest, it is not obstruction. The same argument applies to PC 148.

But risks remain, because the BIA and some federal courts hold that obstruction also includes a “reasonably foreseeable” proceeding. Under that definition, PC 32 is obstruction, and PC 148(b)-(d) might be so charged. That could hurt a client who ends up in removal proceedings outside the Ninth Circuit; also, the Supreme Court might address how obstruction should be defined. Also, courts may interpret the taking of a weapon as a special factor. While removal defense advocates can investigate defenses for each subsection, defenders should act conservatively and try to get 364 days or less.

2022-05-26T22:49:19+00:00Updated May 20th, 2022|