Offense
Resisting officer or EMT in discharge of duty (a)
Additionally, taking the officer’s weapon (b)-(d)
Aggravated Felony (AF)
Obtain 364 days or less on any single count of 148(b)-(d) to avoid possible AF as obstruction of justice.
PC148(a) is a misdemeanor with maximum 364 days as of January 1, 2015, so it cannot be an AF. But pre-2015 148(a) misd convictions with a year imposed might be an AF.
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. Arguably this negligence 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. Obstruction of justice is an AF if a year or more is imposed. 8 USC 1101(a)(43)(S). Counsel must assume that PC 148 is an AF as obstruction if a year or more is imposed, because it involves some intent to interfere in a legal investigation or proceeding.
Pen C 148 was not obstruction under the Ninth Circuit’s definition set out in Valenzuela Gallardo, which required interference with a pending (already existing) proceeding or investigation. However, the Supreme Court rejected that definition in Pugin v. Garland, No. 22-23 (June 22, 2023). See further discussion of Pugin in 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. Also, PC 69 appears to have a stronger argument that it is not obstruction than 148 does and it could be an alternative – although not as safe as the preceding options.
For information on how to structure a sentence to avoid a year for immigration purposes, see § N.4 Sentence.