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 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.

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.

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 (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.
See also discussion at PC 32.

Obstruction of justice is an AF if a year or more is imposed. The Ninth Cir held that under the plain language of the statute, 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. See Valenzuela-Gallardo II, petition for rehearing en banc denied. PC 148 is not obstruction under Valenzuela-Gallardo II because it can involve an initial arrest with no pending investigation or proceeding.

2021-05-17T15:43:12+00:00Updated May 17th, 2021|