Offense
Attempt to deter by threat or resist by force an executive officer in performing any duty
Aggravated Felony (AF)
Get 364 days or less on any single count to avoid an AF as obstruction of justice.
Not an AF as a COV: minimum conduct is offensive touching.1PC 69 as an AF and a COV. Note that while PC § 69 is not an AF as a crime of violence, it likely will be charged as an AF under a different category, as obstruction of justice, if a sentence of a year or more is imposed. See below endnote and see Advice to PC § 32.
Section 69 should not be held a COV under 18 USC § 16(a). See Flores-Lopez v. Holder, 685 F.3d 857 (9th Cir. 2012) (minimum conduct for Pen C § 69 is offensive touching, so felony is not categorically a COV); U.S. v. Flores-Cordero, 723 F.3d 1085 (9th Cir. 2013) (after Descamps, supra, if minimum conduct of felony resisting arrest under Arizona law is not a COV, no conviction is a COV). This should not be a COV under Stokeling, because the person is resisting an action by the officer, not trying to overcome the will of the officer.
Crime Involving Moral Turpitude (CIMT)
Not CIMT because minimum conduct is offensive touching.2PC 69 as a CIMT. There is no direct holding, but PC 69 reaches conduct that should be held not to involve moral turpitude. It includes an offensive touching. See Flores-Lopez v. Holder, 685 F.3d 857 (9th Cir. 2012) (finding that the minimum conduct for Pen C § 69 is offensive touching; therefore, it is not a COV under 18 USC 16(a)). It also includes resisting an officer who is trying to prevent you from committing suicide. See United States v. Fowles, 225 F. App’x 713, 714 (9th Cir. 2007), discussed below.
Other Removal Grounds
No other removal ground.
Advice and Comments
AF as Obstruction. Obstruction of justice is an AF if a year or more sentence is imposed. INA 101(a)(43)(S).
Defenders must assume conservatively that PC 69 will be held obstruction under Pugin v. Garland, 22-23, 2023 WL 4110232 (June 22, 2023). There the Supreme Court rejected the Ninth Circuit’s definition of obstruction, which required interference in a pending (already existing) investigation or proceeding. Because PC 69 includes resisting an initial arrest, it did not come within that definition. Now defenders must assume that any PC 69 conviction will be an AF, if a sentence of a year or more is imposed. See alternative pleas below.
Immigration advocates can investigate arguments that PC 69 is not obstruction under Pugin – for example, because it reaches interfering with officers’ duties that are related to public safety and not to a crime of potential legal proceedings.3PC 69 as obstruction. An offense relating to “obstruction of justice” is an AF if a sentence of a year or more is imposed. INA § 101(a)(43)(S). Section 69(a) is a wobbler offense that punishes a person who commits either of two prongs: “who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law, or who knowingly resists, by the use of force or violence, the officer, in the performance of his or her duty…” Section 69 did not come within the Ninth Circuit’s definition of obstruction set out in Valenzuela Gallardo v. Barr, 968 F.3d 1053 (9th Cir. 2020) (“Valenzuela Gallardo II). That definition required interference with a pending proceeding or investigation, whereas PC § 69 includes interference in any duty and includes an initial arrest. However, the Supreme Court rejected the “pending investigation or proceeding” definition in Pugin v. Garland, No. 22-23 (June 22, 2023). Defenders must assume conservatively that PC § 69 will be held to be obstruction under Pugin, and should avoid a sentence of a year. Defenders and advocates should try to vacate a prior conviction with that sentence.
Removal defense advocates can explore arguments that PC § 69 is not an AF as obstruction. despite Pugin. One argument is that the PC 69 reaches interference in any action by an officer. The BIA’s definition of obstruction includes interference in an ongoing or a “reasonably foreseeable” civil or criminal legal proceeding. Matter of Valenzuela Gallardo, 27 I&N Dec. 449, 456 (BIA 2018). While the Supreme Court in Pugin did not explicitly adopt the “foreseeable” test, it is clear that it requires corrupting or interfering with some proceeding. Section 69 includes interference in any lawful duty of the officer, even if there is no likelihood of civil or criminal proceedings. It includes resisting an officer who is trying to protect the person from self-harm. A person was convicted under the second prong (resisting by force) who had “threatened to jump off [a] railing and had to be physically restrained,” so that he “forcibly resisted the officers in pulling him off the area he was trying to jump from” and “[i]n that process [an] officer was injured.” United States v. Fowles, 225 F. App’x 713, 714 (9th Cir. 2007). In this case, no corruption, obstruction, or escape from punishment is at stake. For this reason, it may be best to plead to the second prong (resisting by force) as this is a general intent crime. People v. Rasmussen, 189 Cal.App.4th 1411, 1420 (Ct.App.1st Dist. 2010).
Counsel also can assert that Pugin cannot be applied to convictions from before Sept. 11, 2018, which is the date that the BIA opinion that rejected the requirement of a pending proceeding was published. See Matter of Valenzuela Gallardo, 27 I&N Dec. 449 (BIA Sept. 11, 2018). The BIA later held that its definition can be applied retroactively to convictions from before that date. Matter of Cordero-Garcia, 27 I&N Dec. 652, 657-663 (BIA 2019). However, in Pugin the Supreme Court remanded the Ninth Circuit’s Cordero-Garcia decision, which was the Pugin companion case and the Ninth Circuit will address the retroactivity issue there. Advocates should not rely on that argument winning, but it is another valid point to raise that also may provide time to investigate post-conviction relief.
– For further discussion see ILRC, Obstruction of Justice: Pugin and California Offenses (July 2023).
Alternatives. If a year or more is needed on a plea, consider safer alternatives such as PC 236/237, 459/460(a) or (b), 530.5. If a lot of time is required, PC 69 can be the subordinate felony with a sentence of 8 months. See other ways to structure sentences for immigration purposes at § N.4 Sentence.
Try to vacate prior convictions of PC 69 with a year imposed. Advocates will argue that the Pugin definition should not apply to convictions from before Sept. 11, 2018, but we must assume this will not prevail.
COV / CIMT: As always, although this is not required under the categorical approach, the best practice is to give D extra protection by pleading specifically to offensive touching.