From the Classroom
By Ray Hill
Professor Emeritus, Santa Rosa Junior College
Threat Offenses (69 P.C.) – A Follow-Up Case
After our recently published article “Timely Issue – A Review of Threat Offenses Against Public Officers, Employees, and Elected Officials” (1/14/24 – LU Ref. #CAB00231), we received this relevant comment from Corporal William Boehm, from the Vacaville Police Department:
“I seem to recall a 69 P.C. case out of a Southern California agency that was detailed under a previous incarnation of Mr. Phillips’ updates. The case involved an officer that was injured by a suspect resisting with physical force, but not as a direct result of assault/battery. If I remember correctly, the officer was injured trying to either prevent (a) suspect escape, or in the process of attempting to apprehend the suspect as he fled (or tried to). Since then, I have worked under the premise that a 148 P.C. is more of either passive resistance/delay, or simple flight, and that resistance with force (even if not specifically assault) qualifies as 69 P.C. When I pull up the jury instructions for 69PC it seems to affirm this.”
Subsequent research found Peo. v. Bernal (2013) 22 Cal. App. 4th 672:
Two Escondido bicycle officers were on patrol in a curfew-closed, flood-control channel. The area was claimed by the “Diablos” street gang and was subject to a gang injunction. Officers observed a trio of individuals and upon their approach, one subject took a steak knife from his waistband and dropped it on the ground. The knife was retrieved and this subject was handcuffed. An officer then frisked the defendant, Bernal, and discovered an axe in his waistband. The axe was retrieved and removed from grabbing distance. When the officer attempted to apply handcuffs, Bernal rolled back on the balls of his feet and started to run away. The officer grabbed him with both hands around the waist as Bernal continued to run down a bike path. Several times, the defendant forcefully “jerked left to right” to shake off the officer. Bernal dragged the officer 8-10 yards before both fell to the ground and Bernal was handcuffed. The officer was wearing shorts and sustained bruises and abrasions on his knees.
Bernal was convicted of 69 P.C. He argued that by running, he did not physically touch or assault the officer, thus the corpus of 69 P.C. wasn’t fulfilled.
The 4DCA ruled that although there was no evidence the defendant attempted assault or otherwise touch the officer, there was ample proof he nevertheless used physical force when resisting restraint and attempting to escape. These actions fulfilled the elements of knowingly resisting with force or violence an executive officer in the performance of his or her duty.
In a discussion of this topic, Bob Phillips compiled several relevant cases for review from the last 10 years:
People v. Bernal (Dec. 20, 2013) 222 Cal.App.4th 512 (Vol. 19 #12)
Penal Code § 69, Resisting an Executive Officer:
Rule: P.C. § 69 is violated merely by a suspect’s forceful or violent resistance to the officer’s attempts to perform his or her duty. The force or violence need not be directed toward the officer.
P.C. § 69(a) vs. P.C. § 148(a)(1), Resisting Arrest:
Rule: Whether P.C. § 148(a)(1), resisting arrest, is a lesser-included offense of P.C. § 69(a), resisting an executive officer, depends on under which theory the defendant is prosecuted, attempted resistance (no) or actual resistance (yes).
People v. Orloff (Aug. 25, 2016) 2 Cal.App.5th 947 (Vol. 22 #5), Criminal Threats, per P.C. 422, Deterring an Executive Officer, per P.C. § 69:
Rule: (1) For purposes of P.C. § 422, criminal threats, the fact that a threat is made over the telephone and by a man who is confined to a wheelchair does not mean that a reasonable trier of fact (i.e., a jury) cannot find the necessary “gravity of purpose and an immediate prospect of execution of the threat” to support the charge. (2) Threatening a peace officer with death if he continues an investigation is sufficient to constitute a violation of P.C. § 69, deterring an executive officer in the performance of his or her duties by threat or violence.
People v. Southard (Mar. 24, 2021) 62 Cal.App.5th 424 (Vol. 26 #8), Resisting Arrest, per P.C. §§ 69 and 148(a)(1), Relevant Jury Instructions in a Resisting Arrest Case:
Rule: It is reversible error for a trial court to instruct a jury in a criminal case that the defendant’s unlawful resistance to arrest negates the prosecution’s need to prove that the officers acted in the lawful performance of their duties.
The Bernal case still doesn't answer the question if 69 P.C. applies when there is no physical contact between the defendant and the officer, e.g. when there is flight and the officer falls and is injured while pursuing. Arguably, there is a “fair probability” or “substantial chance” that the suspect’s resistance was the proximate cause of the officer’s injuries, and a probable cause arrest could be made (836(a)(3) P.C.). Hopefully, the D.A. would file the case, the defendant is convicted, the defendant appeals, and case law is made. (Like Bernal!)
Thank you, Corporal Boehm, for your input in helping us understand further application of 69 P.C.
Stay Safe,
RH
