• Resisting Arrest, per P.C. §§ 69 and 148(a)(1)
• Relevant Jury Instructions in a Resisting Arrest Case

It is reversible error for a trial court to instruct a jury in a criminal case that the defendant’s unlawful resistance to his arrest negates the prosecution’s need to prove that the officers acted in the lawful performance of their duties.

On December 18, 2018, defendant John Wesley Southard was observed by two California Highway Patrol (CHP) officers (Officers Brenton Dunaj and Spencer Good) on Highway 101 (a two-lane stretch of highway, with one lane in each direction) in Del Norte County, driving a pickup truck at about 35 mph in a 55-mile-per-hour speed zone.  It was also observed that defendant was straddling the white line separating the roadway from the shoulder.  Suspecting that the defendant might be driving while under the influence (but apparently not sure that they had enough), the officers followed him.  Defendant eventually pulled to the side of the road and stopped on his own initiative.  The officers pulled up behind him.  At this point, it was observed that defendant’s license plate tab was expired.  Although initially intending to conduct a consensual encounter only, at least until they were able to determine whether defendant was in fact driving while impaired, Officer Dunaj, upon noting the expired license plate tab, turned on their vehicle’s emergency lights.  In so doing, the officers conceded in later testimony that by turning on their emergency lights, the situation had been converted into a detention.  Officer Dunaj also later testified, in what the prosecutor conceded was confusing and contradictory testimony, that he activated his vehicle’s emergency lights due to the observed violation of V.C. § 21658 (requiring the driver to drive in a single lane), even though this statute only applies to roadways with two or more lanes in one direction, and even though Officer Dunaj did not list this section in his reports.  In his arrest report, Officer Dunaj instead listed V.C. § 22107 (failure to signal a traffic lane change) because, as he testified, he considered driving over the line marking the edge of the roadway to be an unsafe movement.  The Appellate Court also noted that Officer Junaj admitted in his testimony that “only one of (these Vehicle Code violations) seem[ed] to factually apply,” and that it was an infraction.  However in testimony, both officers testified that they believed that defendant may have been DUI.  But whatever the reason (see Note, below), defendant was considered to be detained at this point.  Upon Officer Dunaj turning on the vehicle’s emergency lights, defendant got out of the pickup, ignoring the officers’ orders to stay in his vehicle.  Instead, defendant took off running, getting about 200 feet before tripping and falling.  Officer Dunaj caught up with defendant and, when defendant resisted, used his Taser on him a couple of times, “drive-stun(ning)” him in an attempt to subdue him.  The struggle itself was captured on a cover officer’s body camera, the resulting video conflicting with Officer Dunaj’s testimony concerning whether defendant’s right hand was unsecured up until being handcuffed, and whether or not defendant was reaching for his right pocket in which two folding knives were later found.  Officer Dunaj also, in his testimony, changed his account as to what had occurred, admitting that defendant’s right hand was underneath his body and not visible, and that he could not say whether defendant was in fact reaching for his right pocket.  And just to complicate manners even more, the cover officer’s testimony conflicted with Officer Dunaj’s on the issue of the positioning of defendant’s right hand while resisting efforts to subdue him.  But in either case, defendant was eventually taken into custody, charged with resisting arrest, and taken to jail.  (Why he ran from the officers is never explained.)  A week later, on Christmas day (Dec. 25), defendant was riding as a passenger in the right front passenger’s seat in another person’s (David Bonde’s) vehicle.  At a little after 7:00 p.m., CHP Officer Tyler Krueger (presumably no relation to the “Freddie Krueger” of “A Nightmare on Elm Street” and subsequent horror movies fame) observed that the license plate light on Bonde’s car was not working.   So he pulled his car over and contacted the vehicle’s occupants.  Upon doing so, Officer Krueger recognized defendant, having been told about his December 18 arrest.  While dealing with Bonde, Officer Krueger also asked defendant for his full name and date of birth, to which defendant responded by asking why he “was messing with” him.  Officer Krueger decided to check defendant for warrants despite knowing that it was unlikely any existed because defendant had just been released from jail.  While talking with Bonde, defendant unbuckled his seatbelt and moved his hand towards the center console.  Defendant ignored Officer Krueger’s demand that he put his seatbelt back on, continuing to “dig . . . for something on his left side.”  At this point, CHP Officer Brian Wilson arrived as backup.  While Officer Wilson made small talk with defendant, Officer Krueger received information from dispatch that defendant did in fact have an outstanding felony warrant for his arrest.  With a third officer (CHP Officer Levi Sackett) arriving at the scene, defendant was ordered to get out of the car.   Defendant refused, denied that he had a warrant, and continued to dig between the seats to his left where at some point one of the officers observed a knife.  More officers arrived, including Crescent City Police Department Officer Gene Votruba with his German Shepherd Django.  Defendant violently resisted being extricated from the vehicle.  But after breaking a window, and with the assistance of Django, Officer Krueger’s baton, and several officers’ Tasers, defendant was eventually subdued and arrested.  At one point during the struggle, defendant was held to the ground by several officers putting their knees on his neck and back, with defendant screaming “I can’t breathe, I can’t breathe!” “That's illegal,” and “You're killing me!”  (I wonder where he got that from.)  Several knives were eventually recovered, along with a small canister of methamphetamine found in defendant’s belt.  Defendant was given oxygen because he complained that he was having trouble breathing, and then taken to the hospital to be treated for dog bites.  He was subsequently charged in state court with three counts of felony resisting arrest by force (P.C. § 69), four counts of misdemeanor resisting arrest (P.C. § 148(a)(1)), plus the possession of methamphetamine (H&S Code § 11377(a)).   Convicted of all counts, plus a true finding on a prior prison term allegation, defendant was sentenced to five years and four months in state prison.  Defendant appealed.

The First District Court of Appeal (Div. 2) reversed.  The primary issue on appeal was the validity of a special jury instruction read to the jury before deliberations.  It is conceded that a necessary element of all the charged resisting arrest counts (both P.C. §§ 69 and 148(a)(1)) was that the officers were acting lawfully while performing their duties at the time defendant resisted.  The California Supreme Court has observed that in order to be “perform[ing] a lawful duty,” the officer must be acting lawfully. (In re Manuel G. (1997) 16 Cal.4th 805, 818.)  “In short, if the arrest is unlawful, the defendant may not be convicted of violating section 69 or section 148.”  The jury in this case was instructed accordingly.  CALCRIM No. 2652 pertains to the misdemeanor resisting arrest counts (i.e., P.C. § 148(a)(1)), and CALCRIM No. 2656 to the resistance by force counts (i.e., P.C. § 69), both of which were read to the jury.  Both require the People to prove that “when the defendant acted, the officer was performing his lawful duty.” Both instructions go on to instruct that “(a) peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties.”   Additionally, CALCRIM No. 2670, also read to the jury, further explains that “a peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties.”  As noted by the Court: “So far, so good.”  But then the trial court followed these correct instructions with another “special instruction” (not from CALCRIM) that is the point of contention in this case.  As read to the jury, this special instruction said:  “An individual’s (i.e., the defendant’s) decision to commit a new and distinct crime, even if made during or immediately after an unlawful detention, is an intervening act sufficient to purge the ‘taint’ of a theoretically illegal detention. If you believe that the defendant was acting lawfully and that the police detained him unlawfully, a defendant's subsequent conduct in obstructing, resisting, or delaying the officers, if it occurred, can be an independent act that dissipated the taint from the initial unlawful seizure. [¶] If there was (an) unlawful detention, you may conclude that a choice to flee or to resist arrest are independent intervening acts sufficiently distinct from an illegal detention to dissipate the taint of an illegal detention.”  In other words, the jury was told that defendant’s illegal resisting was sufficient to negate the need for the prosecution to prove the otherwise necessary element of both P.C. §§ 148(a)(1) and 69 that the officers were acting in the performance of their duties; i.e., that they were acting lawfully.  The Appellate Court held that this was reversible error.  The misconception as to what the law requires in this regard apparently comes from the rule that in a pretrial “motion to suppress” (pursuant to P.C. § 1538.5), a defendant’s subsequent illegal conduct in resisting the officers was an independent act that dissipated the taint from an unlawful seizure.  The two cases cited by the People in support of their argument, and that were used by the trial court in constructing the jury instruction at issue here, both involve motions to suppress.  (See People v. Cox (2008) 168 Cal.App.4th 702, and In re Richard G. (2009) 173 Cal.App.4th 1252, 1262.)  Neither case supports the argument that the same rule applies to the defendant’s trial, where the prosecution is obligated to prove beyond a reasonable doubt each and every element of a charged offense.  While noting that it is always dangerous for a judge to write a special jury instruction using the language of a prior case decision, particularly when the issue in that prior case involved a different context, rather than sticking with the established CALCRIM instructions, the Court held here that it was reversible error to tell the jury that an officer’s possible illegal act (e.g., arrest without probable cause and/or with the use of excessive force) was excused (i.e., need not be proved) if the defendant had illegally resisted arrest. 

Note that the Court does not hold here that the officers in either arrest did in fact act illegally, at least as a matter of law.  In determining what jury instructions were to be read to the jury, the Court was only saying that the legality of the officers’ actions was something the jury had to consider when it determined whether or not all the necessary elements of each of the resisting arrest counts, including “acting in the performance of their duties,” had been proved beyond a reasonable doubt.  In other words, did Officers Dunaj and Good unlawfully detain defendant, and/or use excessive force, in the December 18th incident, and did Officers Krueger, Wilson, Sackett, and Votruba use excessive force in the December 25th incident   If they did, then this is a fact, per the Court, that excuses defendant’s resistance in the trial context (although it doesn’t in the motion to suppress context).  I don’t usually brief cases that pertain to the correctness of jury instructions, this being an issue for the attorneys and the judge in the courtroom, and not for the officers in the field.  But I briefed this case because it was news to me, and an extremely important point, that the rule of Cox and Richard G. pertains only to motions to suppress.  In a case not mentioned by the Court here—Evans v. City of Bakersfield (1994) 22 Cal.App.4th 321—it was ruled “that the trial court committed error in instructing the jury that plaintiff had a right to use reasonable force to resist an unlawful detention, because no such right existed.”  As a result of the Evans case, I’ve always believed that a defendant’s illegal resistance to arrest did in fact negate the need for the People to prove that an officer’s actions were lawful.  But Evans is a civil case.  Cox and Richard G., as pointed out by this Court, involved motions to suppress.  And this new case deals with what needs to be proved at trial in a criminal case.  The different settings require different rules; an extremely important fact that all trial attorneys and judges need to know.  Secondly, and more importantly to police officers, I also briefed this case to illustrate how necessary it is for officers to be properly prepared when they testify.  The Court went to great lengths to point out the inconsistencies in the testimony provided by Officers Dunaj and Good (particularly the former), casting serious doubt as to the officers’ credibility; a problem the jury had to have picked up on.  This problem can be avoided by the officers’ proper preparation for trial, including the reviewing of their reports and existing video tapes, as well as going over their proposed testimony with the prosecutor in pretrial interviews, refreshing everyone’s recollection as to what actually occurred.  It did not appear that any of these completely legal and proper preparations were done in this case, based upon the embarrassing inconsistencies of Officers Dunaj’s and Good’s trial testimony.  As the record stands, there are only two possible explanations:  Either the officers were lying, making up explanations for their actions on the fly, or they were just not properly prepared.  We like to assume that it was the latter.  Complete and accurate reports, and proper preparation for trial, would have cleared all this up.  As for the meth possession charge, defendant’s conviction was also reversed, it being noted that the trial court again erroneously instructed that jury, telling the jurors that it was not necessary to prove that defendant intended to break the law (CALCRIM No. 250) while also telling them that the People had to prove beyond a reasonable doubt that defendant “knew of [the drug’s] presence” and “knew of the substance's nature or character as a controlled substance.”  In reversing defendant’s meth possession conviction, the Court noted the express boldface warning in the Bench Notes to CALCRIM No. 250 that “this instruction must not be used if the crime requires a specific mental state, such as knowledge . . . , even if the crime is classified as a general intent offense.” The fault here lies with the prosecutor and the trial court for not properly researching the law when preparing the jury instructions that needed to be given.