P.C. § 69(a) vs. P.C. § 148(a)(1)

Resisting Arrest

Whether or not P.C. § 148(a)(1) (resisting arrest) is a lesser included offense of P.C. § 69(a) (resisting an executive officer) depends upon under which theory the defendant is prosecuted; attempted resistance (no) or actual resistance (yes). 

Defendant Cody Ashton Kruse was dating Heather Koetter in September, 2019, when he went to visit her at her Escondido apartment.  Koetter already had several friends over, including Samantha Howell.  At some point, defendant and Koetter got into an argument over defendant exchanging text messages and talking with another girl.  Koetter asked defendant to leave, which he did.  However, he returned 20 minutes later because he’d forgotten his cellphone and backpack.  Things started to deteriorate when Koetter refused to let defendant back into the apartment to get his belongings.  At Howell’s insistence, Koetter eventually relented and opened the door.  Rather than just take his stuff and leave, however, defendant pushed his way in and sat down on the couch.  The situation now degraded into Koetter yelling and screaming at defendant, attempting to physically pull him off the couch, and punching on him.  As Koetter got more and more angry, and more and more physical, defendant merely sat there and laughed, telling Koetter he wasn’t going anywhere.  After about an hour of this, defendant went into Koetter’s bedroom where her seven-year-old daughter was sleeping and locked the door.  After some period of time, with Koetter yelling and pounding on the bedroom door, defendant finally came out.  At this point, Howell got involved, getting in defendant’s face and calling him a “little bitch.”  Defendant started to lose his cool. While standing “nose to nose” with Howell, defendant angrily told her he was going to put a bullet through her brain and kill her. Howell later testified that defendant’s threat scared her because she knew he had a criminal record and he had told her earlier that evening that he had a trial going on involving a murder.  She later testified that she felt defendant was the type of person who was capable of following through with his threat.  At this point, neighbors finally called the police.  Escondido Police Department officers responded. After a quick interview of the participants, the officers arrested Koetter on a misdemeanor domestic violence charge for having battered defendant.  Defendant himself was detained, handcuffed, and led out of the apartment, during which time (foretelling things to come) he was uncooperative, yelling and screaming at the officers, and bragging about getting only six months in jail for having committed a murder.  Upon determining that Koetter was the aggressor in the preceding argument, defendant was given his backpack and told to leave.  When Howell saw this, she confronted defendant, yelling at him in the presence of the officers (and as recorded on an officer’s bodycam): “You're the one who threatened to put a bullet in my brain, you know? You're the one who threatened us.” Hearing this, one of the officers started asking questions about the confrontation between Howell and defendant.  Howell told the officer that defendant’s threat made her immediately fear for her safety, that she was afraid of him because he told her he was involved in a murder case, and she believed that he hung out with people who had guns and that he might have guns as well and could readily carry out his threat.  Determining that this new information constituted probable cause to charge defendant with making a criminal threat (per P.C. § 422), Officer Danny Armenta caught up with defendant as he was walking away and detained him.  Asked for permission to search his backpack, defendant consented.  A small amount of methamphetamine was recovered.  So defendant was arrested, handcuffed, and put into the back seat of a patrol car.  (You can’t make this stuff up.)  On the way to the police station, defendant became very agitated and uncooperative, challenging Officer Armenta to fight.  Defendant’s increasing combativeness caused Officer Armenta to have to call for backup to assist in moving him from the patrol car to a holding cell at the police station. And then, after the paperwork was done, and with defendant still refusing to cooperate as he continued to issue challenges to fight, assistance had to be called in order to move him from the holding cell and back into the patrol car for transportation to jail.  Officer Armenta later testified that defendant’s demeanor inside the holding cell was angry, very agitated, confrontational, and combative, and that his repeated challenges to a fight deterred him from performing his duty to place defendant in handcuffs and transport him to the Vista Detention Facility for booking.  Defendant was subsequently charged in state court with making a criminal threat to Howell (P.C. § 422), attempting to deter or prevent an executive officer from the lawful performance of his duties by means of violence or threat of violence (P.C. § 69(a)), and possession of a controlled substance (H&S Code § 11377(a)).  Convicted on all counts by a jury, he was thereafter sentenced to three years and eight months in state prison.  He appealed.

The Fourth District Court of Appeal (Div. 1) affirmed.  The only issue on appeal was the trial court’s refusal to instruct the jury on the elements of Penal Code § 148(a)(1); resisting arrest, as a “lesser included” (or, in the alternative, a “lesser related”) offense of the charged offense of Penal Code § 69; attempting to deter or prevent an executive officer from lawful performance of his duties by means of violence or threat of violence.  Subdivision (a) of P.C. § 69 provides as follows: 

“Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer (i.e., a police officer; see People v. Buice (1964) 230 Cal.App.2nd 324, 335.) 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 (is guilty of a felony/wobbler).” (Italics and citation added.)

In contrast, P.C. § 148(a)(1) provides:

“Every person who willfully resists, delays, or obstructs any public officer, peace officer, . . . in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, (is guilty of a straight misdemeanor).”

Defendant wanted a lesser included instruction so that the jury would have the alternative of convicting him of a misdemeanor only, instead of a felony P.C. § 69.  The Court first noted that a trial court is required “sua sponte” (on its own initiative) to instruct a jury on any lesser offense “necessarily included” in the charged offense, so long as there is substantial evidence that the lesser crime was committed.  A lesser offense is necessarily included in a greater offense whenever you cannot commit the greater offense without having also committed the lesser offense; i.e., the greater offense necessarily includes all the elements of the lesser offense, plus more.  Looking at the elements of Pen. Code § 69, the Court noted that a violation of this crime can be committed in either or both of two ways; (1) by attempting by means of any threat or violence, to deter or prevent an executive officer from performing his or her duties, or (2) by actually resisting, by the use of force or violence, the officer in the performance of his or her duties.  Looking at the elements of Pen. Code § 148(a)(1), the Court held that this section is a lesser included offense of the second alternative only, both sections including an element of actual resistance.  The prosecution in this case sought to prosecute defendant under the first alternative (i.e., attempting to resist) only, having asked to instruct the jury accordingly (See CALCRIM 2651), while rejecting an instruction as to the second alternative (i.e., actually resisting) CALCRIM 2652).  P.C. § 148(a)(1) includes as an element the act of actual resistance.  As such, it is not a lesser included offense of the version of P.C. § 69 advanced by the prosecution.  The trial court, therefore, did not err by refusing to instruct the jury on the lesser included offense of P.C. § 148(a)(1).

The Court included two cases as authority for its conclusions here:  The California Supreme Court at People v. Smith (2013) 57 Cal.4th 232, and a federal district court decision at Lewis v. Arnold (C.D.Cal., Oct. 17, 2019) 2019 U.S. Dist. LEXIS 202476.  So it’s really pretty clear-cut law.  But I briefed it anyway mostly because I’ve always wondered how P.C. § 69(a) differs from P.C. § 148(a)(1) and thought this case might tell me.  It didn’t.  Recognizing that we can always charge a misdemeanor attempted resisting as a P.C. §§ 664/148(a)(1), I still don’t know how we decide to charge one over the other except that we should probably reserve the felony section 69(a) for the more serious cases. When I was a cop, we generally used section 148 absent any evidence that we came out of the altercation either bleeding, bruised, or otherwise broken in some way.  Here, defendant probably deserved the greater offense given the severity of his threats and the difficulties his persistent resistance caused over an extended period of time.