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 or a COV with a 1-year sentence, obtain 364 days or less on any single count.
Or see Advice
Crime Involving Moral Turpitude (CIMT)
(a) should not be CIMT: minimum conduct is, e.g., going limp.
(b)-(c) should not be CIMT but try to plead to “reason-ably should have known” was officer, because negligence is not a CIMT and there is no requirement of specific intent.
(d) involves taking with intent to permanently deprive, which is likely to be held a CIMT.
Other Removal Grounds
Assume conservatively that (c) and (d) are deportable firearms offenses, in case the antique firearm exception is held not to apply to police on duty.1Pen 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
AF: See case citations and further discussion here.2Pen C § 148 as the aggravated felony “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.
Sentence. Section 148(a)(1) is a misdemeanor that punishes a person who “willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician … in the discharge or attempt to discharge any duty…” Since January 1, 2015, § 148(a) has had a potential sentence of 364 days (see Pen C § 18.5(a)), so no conviction should have an imposed sentence of a year. But before January 1, 2015, it had a potential sentence of a year, so some clients might have a § 148(a) prior with a year imposed. In that case, advocates should consider the below arguments that 148(a) is not obstruction, and/or try to obtain post-conviction relief to vacate the conviction or reduce the sentence based on legal error. Reduction of sentence under Pen C §18.5(b) is not being given immigration effect, based on a ruling by Attorney General Barr. See ILRC, § N4: Sentence (October 2020) at www.ilrc.org/chart.
Sections 148(b) and (d) are wobblers and so may have a sentence imposed of a year or more.
Obstruction of justice definition. Pen C 148(a) should not be held obstruction under the controlling Ninth Circuit decision Valenzuela Gallardo v. Barr, 968 F.3d 1053 (9th Cir. 2020) (“Valenzuela Gallardo II”). That 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. But at this writing, Valenzuela Gallardo still could go to rehearing en banc and be overturned in favor of the BIA’s definition. See discussion at endnotes to Pen C § 32, above.
Therefore, because it is possible that the court en banc would reverse Valenzuela Gallardo II and choose the BIA definition, we should consider the BIA definition as well. The BIA defines obstruction as offenses covered by 18 USC §§ 1501-1521, or offenses that require: “(1) an affirmative and intentional attempt (2) that is motivated by a specific intent (3) to interfere with an investigation or proceeding that is ongoing, pending, or ‘reasonably foreseeable by the defendant.’” Matter of Valenzuela Gallardo, 27 I&N Dec. 449, 456 (BIA 2018). Is Pen C 148 obstruction under the BIA’s definition?
While there is no case on point, immigration counsel can explore several bases for arguing that § 148 does not meet the BIA’s generic definition of obstruction. The fact that § 148 uses the terms “resists, delays, or obstructs” is not dispositive; the issue is whether the elements of § 148 are contained within the generic definition of obstruction. See generally Mathis v. United States, 136 S.Ct. 2243 (2016).
First, by the terms of the statute, at least § 148(a) includes interfering with a medical technician, which is not obstruction of justice. Second, resisting one’s own arrest is a spontaneous act, and § 148 requires no specific knowledge or motivation. In Matter of Joseph, 22 I&N Dec. 799, 808 (BIA 1999), the BIA found that resisting one’s own arrest pursuant to Maryland’s common law “obstructing and hindering” offense would not likely constitute generic ‘obstruction of justice’ under 8 USC § 1101(a)(43)(S). The Ninth Circuit distinguished between an attempt to escape justice after having submitted to the judicial process, and fleeing arrest, which did not constitute obstruction of justice because the person was not sufficiently on notice. See Renteria-Morales v. Mukasey, 551 F.3d 1076, 1088 (9th Cir. 2008) (citing U.S. v. Draper, 996 F.2d 982, 984-86 (9th Cir. 1983). (However, to some extent Renteria rested on the fact that there was no existing investigation or proceeding.) Third, § 148 lacks the specific intent that the BIA requires: it is a general intent crime, proscribing only the particular act, e.g., resisting, without reference to an intent to do a further act or achieve a future consequence. See CALCRIM 2656. It can involve interference where an investigation or proceeding is not reasonably foreseeable, and where there is no intent to impede arrest or criminal proceedings specifically. Section 148 has been used to prosecute interfering with police who are quieting down a loud party (People v. Martinez (1970) 3 Cal.App.3d 886), or interfering by declining to get or stay in a car during a traffic stop (Young v. County of Los Angeles, 655 F.3d 1156 (9th Cir. 2011), Donovan v. Phillips (9th Cir. 2017) 685 Fed.Appx. 611, 2017 WL 1164437). It is violated by an act of civil disobedience in passively going limp while being arrested, with no intent to avoid arrest or prosecution. In re Bacon (1966) 240 Cal.App.2d 34. It is violated by declining to provide one’s name for 30 minutes at booking, because that tends to delay the booking officer. People v. Quiroga (1993) 16 Cal.App.4th 961.
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 (Cal. Ct. App. 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.
Still, criminal defense counsel should act conservatively and plead to a different offense if one year will be imposed until it is known whether the Ninth Circuit standard will remain in place. See also discussion at PC 32.
Obstruction of justice is an AF if a year or more is imposed. In 2020 the Ninth Cir held that the definition of obstruction requires interference with an existing proceeding or investigation. It rejected the BIA’s definition that also included interference with a “reasonably foreseeable” proceeding or investigation. Valenzuela-Gallardo II. PC 148 is not obstruction under Valenzuela-Gallardo II because it can involve an initial arrest with no pending investigation or proceeding. However, a petition for rehearing en banc is pending in the case, so defenders should act conservatively and seek 364 days or less on any single count.
Immigration counsel should cite Valenzuela Gallardo II as a defense. But if that were to be reversed en banc, counsel could argue that 148 is not obstruction under the BIA’s definition either, because it can involve impeding an officer’s duties where further proceedings are not reasonably foreseeable. Counsel also can argue that the BIA definition cannot apply retroactively to convictions from before 9/11/2018. See endnote above.
Note that while 148(a) is a misdemeanor, a conviction for 148(a) from before 1/1/15 might have a one-year sentence imposed.