• Resisting Arrest, per P.C. § 148(a)(1)
• P.C. § 148(a)(1) and a Defendant’s Knowledge that the Person Resisted Was a Peace Officer
• P.C. § 148(a)(1) and an Officer’s Failure to Act in the Performance of His or Her Duties
• Pitchess Motions and the Materiality Requirement

To be guilty of resisting arrest pursuant to P.C. § 148(a)(1), it is required only that the  defendant knew, or reasonably should have known, that the person resisted was a peace officer.  A suspect’s voluntary intoxication is irrelevant to this issue.  Detentions without a reasonable suspicion, arrests without probable cause, or an officer’s use of unreasonable force, fail to meet the P.C. § 148(a)(1) requirement that the officer is acting in the performance of his or her duties.  Pitchess discovery is inappropriate absent a showing by the defendant that the information sought is material to a disputable issue.

On August 17, 2017, just after midnight, defendant Tristan Mackreth got into a road-rage altercation with a woman named Lisa Ward.  Calling 911, Ward reported to police that defendant intentionally ran his car into hers, forcing her off the road.  Ward told the 911 dispatcher that defendant had been chasing her with his lights out and “totally sideswiped” her car.  Responding to this call, Sunnyvale Public Safety Officer Matthew Meyer—wearing a “standard police uniform” with a badge that was “readily apparent”—contacted a “very upset,” “hysterical,” and “confused” Ward.  He also talked to a bystander—Arthur Megoloff—outside a 7-Eleven convenience store. Megoloff told Officer Meyer that defendant was acting in a “threatening manner” and had gone “all nuts on me.” Per Megoloff, defendant had run into the 7-Eleven.  Officer Meyer could see defendant in the store “stuffing things down his pants” as the store clerk (who appeared to be “clearly afraid”) tried to deal with him, causing the officer to be concerned that defendant might be committing a robbery and/or might be armed.  He therefore called for Code-3 backup.  Officer Meyer made eye contact with defendant who then ran into a back room.  As Officer Meyer entered the store, defendant reappeared with keys and something else in his hands, which later turned out to be a phone. (Unbeknownst to Officer Meyer, or other responding officers, defendant had used that phone to call 911, reporting that he had been involved in a traffic accident.)  Officer Meyer drew his Taser and pointed it at defendant, yelling at him to “get on the ground.”  Defendant eventually complied, but not before Officer Meyer noted that defendant was displaying clear signs of being under the influence of a stimulant; i.e., “very sweaty (and) fidgety,” “delusional,” and “disconnect(ed) with reality.” Defendant asked Officer Meyer to “show me your badge,” which seemed unusual in that Officer Meyer’s badge was clearly displayed on his uniform.  Officer Meyer later testified that he did not think defendant believed he was a police officer and that he did not seem to “recognize the reality of what was going on.”  When defendant got onto the ground, Officer Meyer told him not to move or he would be tased.  Despite this warning, defendant popped back up again.  Officer Meyer therefore tased him, as promised, the force from which knocked defendant to the ground once more.  Incapacitated only momentarily, however, defendant got up again and ran towards the clerk.  Officer Meyer chased after him, striking him twice with his baton.  But defendant, un-phased, jumped over the counter and made for the exit, going through Megoloff who tried to shut the door on him.  Just then Lt. Jonathan Griffith and Officer J.W. Carrel—both also in uniforms with visible badges—arrived with lights and sirens blaring.  And the fight was on.  Outside the store, the three officers were eventually able to get defendant handcuffed and subdued, but only after a two-minute struggle which included the use of the officers’ Tasers, batons, and fists.  The fight resulted in all three officers suffering minor abrasions.  Lt. Griffith also suffered an “atrial fibrillation” (i.e., a quivering or irregular heartbeat).  A subsequent blood test showed that defendant had an “abuse level” of methamphetamine in his system.  Defendant later related to his sister, detectives who interviewed him, and in his testimony at trial, that he was under the influence of methamphetamine at the time, was “obviously hallucinating (and) wasn’t in my right mind,” and that he did not believe that the officers were real police officers, thinking they were “fake cops.”  As for the traffic collision, defendant claimed that Lisa Ward had swerved into his car when he tried to pass her on the right because she was driving too slow.  Defendant testified at trial that he went into the 7-Eleven store to use their phone to report the accident.  Convicted by a jury of the misdemeanor offenses of resisting arrest (P.C. § 148(a)(1)), vandalism (P.C. § 594(b)(2)(A)), and being under the influence of methamphetamine (H&S Code § 11550(a)) (the jury acquitting him of attempted robbery and assault with a deadly weapon, and hanging on a lesser included offense of assault), defendant was sentenced to time served (440 days) and three years of probation.  He appealed his resisting arrest conviction only.

The Sixth District Court of Appeal affirmed, although remanding the case back to the trial court for resentencing. 

(1) Defendant’s Knowledge That the Persons Resisted Were Peace Officers:  Defendant’s primary argument on appeal was that he could not be convicted of resisting arrest unless it was proven that he “actually knew” that the persons he resisted were a police officers.  Per defendant, whether or not he “should have known” that the persons resisted were peace officers was not enough.  Penal Code § 148(a)(1) provides in pertinent part:  “Every person who willfully resists, delays, or obstructs any public officer (or) peace officer . . . in the discharge or attempt to discharge any duty of his or her office or employment,” is guilty of a misdemeanor.  (Italics added)  Defendant argued that the term “willfully” means that he must actually have known that the person he resisted was a peace officer.  With defendant being under the influence of methamphetamine, and as demonstrated by his asking Officer Meyer to see his badge, there was evidence to support his testimony that he actually thought the officers were “fake cops.”  The prosecution argued—with the trial court instructing the jury accordingly—that it was only necessary that defendant knew, or reasonably should have known, that the officers were peace officers.  Without disputing that defendant’s mental condition at the time may have interfered with his ability to recognize the officers as peace officers, the prosecutor argued to the jury that the fact that all three officers were in full uniform, with their badges prominently displayed, would have put any reasonable person on notice that they were in fact peace officers.  As for whether defendant’s drug-induced condition might have affected this issue, it was noted that one’s voluntary intoxication is irrelevant when the offense at issue is a “general intent” crime.  (See P.C. § 25(a))  Resisting arrest, per P.C. § 148(a)(1), is such a general intent crime.  Finding the meaning of the word “willfully” to be an issue of statutory construction, the Court of Appeals agreed with the prosecution.  The Court found that the Legislature did not intend for its use of the word “willfully,” as used in P.C. § 148(a)(1), to create a requirement of “actual knowledge.”  The Penal Code itself, at section 7, paragraph (1), defines the word “willfully:” “(W)hen applied to the intent with which an act is done or omitted, (‘willfully’) implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.”  The Court also reviewed the legislative history of section 148, comparing it with the very similar statute of “resisting an executive officer,” pursuant to P.C. § 69.  In looking at this legislative history, it was noted that both statutes are the product of a single resisting statute which as originally written, included both a “knowing” and a “willful” element.  Then, in 1872, the Legislature split the resisting statute into sections 69 and 148, the former (resisting an executive officer) requiring that the offense be committed “knowingly,” while the later (resisting a peace officer) be done “willfully.”  Subsequent legislative amendments to these sections have not changed these elements.  Also, a prior case out of the Fifth District—People v. Lopez (1986) 188 Cal.App.3rd 592, 599—held that a violation of section 148(a)(1) does not include a requirement that the offender actually know that the person resisted was a peace officer.  And again, the Legislature has amended P.C. § 148 subsequent to the Lopez decision, but did not see the necessity of broadening the elements of this offense when it had the opportunity to do so.  By this, the Court concluded that the “Legislature (has) clearly expressed its decision to require different mental states for the two offenses;” i.e., P.C. §§ 69(a) and 148(a)(1).  Defendant, however, cited a prior case out of the same district (but by a different three-judge panel) which specifically held that “section 148, subdivision (a)(1)—like the similar offense described by section 69—requires that a defendant have actual knowledge he or she is resisting an officer in the performance of duty.”  (See In re A.L. (2019) 38 Cal.App.5th 15, at p. 22.) The Court here handled this contrary decision by simply stating that it disagreed with its colleagues’ conclusions in A.L on this issue, noting specifically that “(t)he cases upon which the A.L. opinion relied do not support its conclusion.” 

(2)  Lawfulness of the Officers’ Actions:  The Court included a brief discussion relative to the element of P.C. § 148(a)(1) requiring that the officers’ actions in attempting to detain and arrest defendant must have been lawful (i.e., supported by a reasonable suspicion and probable cause, respectively), and without any excessive force being used.  It is a rule that where police officers act unlawfully, they are not acting “in the performance of their duties” (a necessary element of P.C. § 148(a)(1)), and as such, a suspect is entitled to use reasonable force in resisting an unlawful detention, arrest, or an officer’s use of unreasonable force.  (See Jury Instructions CALCRIM Nos. 2656 & 2670.)  Here, however, the Court found that there was no evidence to support the argument that the officers acted unlawfully.  So this was a non-issue.

(3) Pitchess Discovery Motion:  Lastly, defendant, before trial, filed a Pitchess motion (see Pitchess v. Superior Court (1974) 11 Cal.3rd 531.), seeking access to the officers’ confidential personnel records, looking for any evidence of prior acts of excessive force and/or dishonestly.  The trial court denied defendant’s motion.  On appeal, defendant argued that this was reversible error.  However, the Appellate Court agreed with the trial court.  Noting that with the entire event being video recorded by the officers’ body cameras, a dash-cam video, and the 7-Eleven’s surveillance camera, the Court held that there was no dispute as to what had occurred. The various videos failed to substantiate defendant’s argument that excessive force had been used, or that the officers acted without the necessary reasonable suspicion and/or probable cause in attempting to subdue and arrest defendant.  Because defendant was unable to advance any plausible argument as to how the officers’ personnel records might be material to any disputable issue, the trial court did not err in refusing to provide defendant with the Pitchess discovery he had sought.

(4)  Conclusion:  The only thing defendant won on appeal was an order remanding the case to the trial court for a determination as to whether he was entitled to the benefits of the subsequently enacted Assembly Bill No. 1950, which amended P.C. § 1203a to limit to one year the length of a probationary period for a misdemeanor conviction.  So while defendant’s conviction was upheld, the case was remanded for possible resentencing.

This is an excellent case on what it takes to constitute a violation of P.C. § 148(a)(1), resisting arrest, shooting down (at least under the facts of this case) a number of possible legal defenses to such a charge.  And while not discussed in a lot of detail, it’s particularly important to note that a suspect’s intoxication (alcohol or drugs), even to the point of being totally paranoid, is irrelevant to the issue of whether he reasonably should have known that the officers involved were in fact peace officers. The case also provides prosecutors with great fodder for resisting a defendant’s Pitchess motion, preventing a defense attorney from doing a fishing expedition into an officer’s confidential personnel records.  So anytime a prosecutor is preparing to put on a P.C. § 148(a)(1) case, he or she needs to pull this very instructive case up and read it in its entirety.