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Resisting Arrest v. Fighting with the Police: California Penal Code Sections 148(a) and 69 Discussion

Posted by Dmitry Gorin | Nov 17, 2008

Penal Code Section 69 and 148(a) both make it unlawful to fail to follow lawful police orders. The former is a felony which carries the possibility of prison, while the latter is a misdemeanor that usually results in a defendant having to perform community service. The big difference between the criminal charges, as the case below demonstrates, is the use of force by a defendant.The Court of Appeals ruled in a recent case that a Defendant who claimed he resisted police officers because their efforts to subdue him during an arrest caused him pain was entitled to an alternate jury instruction on a lesser charge that did not involve use of force or violence (Penal Code Section 148) The court concluded that the trial judge must instruct on both theories because a jury could reasonably have found defendant guilty of the lesser offense if it believed his testimony. The Appeals Court thus conditionally reversed the convictions for forcibly resisting the officers (Penal Code Section 69).Defendant was apprehended in November of 2006 by officers of the Los Angeles Police Department who were responding to a report of a prowler in San Pedro. After a citizen told the first officer on the scene that a man matching the prowler Tagged as: jury trial defense, motion to dismiss unlawful police search


CJMartin on July 7, 2010 at 1:32 a.m. wrote: I was recently arrested on a PC 148(a) - I was trying to expain to the cop why I was at a scene and he interupted me saying "Fuck you, I dont care." I told the officer that I wouldent be able to communicate with him until he calmed down and stoped cursing at me so he arrested me. Lillian Smith Comm 174 on November 26, 2008 at 12:58 a.m. wrote: This second case definitely illustrates what we have been talking about with the United States' obsession with procedure. When I think of this now, I think of Pizzi's comparison of the American legal system to football and the European system to soccer... If this same situation were to occur in Europe, it is likely that the defendant would not be granted a retrial. Whereas we like to 'stop the clock' whenever possible, the Europeans are more inclined to 'play on'. In addition, this case shows what little emphasis we place on truth. Our defendant's rights are too strong. This man, who was clearly guilty of all crimes he was accused of, was able to get a retrial based on a technicality that would have had little impact on the decision if the judge had informed the jury of it originally, and because of it he was able to get a lesser sentence. I think we need to take a note from the majority of other country's systems and deemphasize the procedure involved in trials and reemphasize the truth. Araksya Boyadzhyan on November 21, 2008 at 7 p.m. wrote: This case expands on our discussion in class on the American trial system. In

About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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