LEGAL GUIDE
Written by attorney Raffi Manuelian | May 20, 2010

Defending Resisting Arrest Charges Under Penal Code Sections 69 and 148(a)

The primary and most important difference between Penal Code Section 148(a) (Resisting Arrest/Misdemeanor) and Penal Code Section 69 (Resisting Arrest/Felony) is that under Penal Code Section 69, there is a requirement that there be evidence of resistance caused "..by the use of force or violence."

Most resisting arrest charges in Los Angeles County are nothing more than a fallback charge when the Officer doesn't have other valid charges to arrest for or a charge used to cover-up excessive force or even blatant police corruption.

An law enforcement officer that is trigger happy with PC 148 or 69 most likely have a record of people who have filed complaints against them for either excessive force or falsifying complains and so forth. What do you do? Always file a Pitichess Motion.

The key is to develop a "plausible factual scenario" in your motion and in your declaration. Remember: you are asking the court for the Officer's personnel file, therefore, you must assert the reason for your request (provides an affirmative defense), that you can not obtain the material otherwise and you believe in good faith (based on your client's statement of facts and the way the report is written) that the Officers in question used excessive force and/or lied in their reports in order to justify a false arrest

This author has never lost a Pitchess motion in PC 148 or 69 cases. The reason is simple: Your request in these types of cases are not unreasonable, somewhat expected, the requested material is Brady Material which could not be readily discovered by you and your good faith belief that there will be exclulpatory evidence which should be brought to the jury's attention to consider during the trial.

If you get any "hits" (names of complainants), have your investigator immediately contact them for a statement. You should remember that even oral statements to the investigator is discoverable information. Not taking notes will not absolve your discovery obligations and may ultimately result in the judge excluding the testimony if prejudice to the prosecutor is shown.

Second, if you have a PC 148(a) case, you should find out first if there was probable cause to stop the vehicle (if the arrest stems from a traffic stop) or the initial contact and investigation with your client. Filing a 1538.5 motion will force the Officers to tell their version of the facts again which opens the door for inconsistent statements at the very least. In the best case scenario, it may cause a Judge to lean towards the defense side before trial if he doesn't find the Officer completely credible. He may even dismiss the case at the 1538.5 hearing! The important thing to remember is that in a misdemeanor case, you don't want to find out how the Officers will testify for the first time at trial. That's why these pretrial motions are so important.

Third, make sure your 1054 discovery request is very detailed. You should request the MDT logs, dispatch records, 911 calls, supplemental police reports, color photos, videos, audio-tapes, Use of Force Reports, Police Policy and Training Material relating to POST and Excessive Force and so on. It is a good practice to keep a list of items you need before trial starts so that you don't have to assume the prosecutor gave you everything because they rarely due. Follow up and even file a motion to compel if need be.

Fourth, decide the benefits of filing a 17(b)(4) motion (motion to reduce the felony to a misdemeanor) or to keep it a Felony. It may be easier winning a case which is overcharged but weigh the facts and the consequences of a conviction of a Felony before making this strategic and risky choice. With great rewards also comes great responsibility. The last thing you want is an ineffective assistance of Counsel (Strickland error) raised on appeal should you lose. If your confident in your skills, than proceed with care and caution.

Summarize each hearing transcript (1538.5 and preliminary hearing) carefully and highlight the inconsistencies. During closing argument, you should prepare a list of all the statements he testified to at the 1538.5 which were different at the preliminary which were different in his police report. You can raise serious doubt by doing this effectively.

Also, make sure you DON'T educate the prosecutor in yours case. Most prosecutors have a hard time believing Officers in California lie in police reports, use excessive force or even make false arrests to cover their civil liability and in some cases their crimes. Prosecutors like to portray the image of fairness but in reality their only doing their job and have their marching orders from upstairs. Fly your plane stealth and your odds are higher to win your case.

Try to stay away from using character witnesses. 90% of the time these witnesses say something damaging to your case. Stick with effective cross examination of the Officers combined with your use of the Pitchess witnesses (if you can) or you client (if you can). Although you can arguably keep your client off the stand, it is always a good idea to use your client if you can. The simple reason is despite the law, jurors harbor a negative opinion over defendants who don't testify in these types of cases. Use your client unless there is clearly a reasonable doubt case and don't need them. However, if this is the case, then it sounds like you should file a 1538.5.

Lastly, try your case using a powerpoint presentation during your closing arguments to explain where there are inconsistencies in the Officer's testimony and why reasonable doubt has not been proven . These cases are difficult to follow and a presentation always keep the jurors awake and on their toes. If you set up your legal chess pieces in advance and carefully, you will checkmate each PC 148 and 69 case every time!

Additional resources provided by the author

California Penal Code §§ 148(a), 69 Pitchess v. Superior Court (1974) 11 Cal. 3d 531, 535. City of Santa Cruz v. Municipal Court (1989) 49 Cal. 3d. 74, 84.) Brady v. Maryland (1963) 373 U.S. 83, 86-87

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