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If you have been charged with this Felony offense it is a serious charge.  I have handled dozens of cases involving resisting arrest.  As a former probation officer, deputy district attorney and criminal defense attorney with more than 13 years of criminal defense experience I have the ability to handle your case. 

Californias 148 pc is californias resisting arrest law as a misdameanor. However, pc 69 may be prosecuted as a Felony. Which subjects an offender to a state prison sentence and substantial fines.

But were here to help.  As a former probation officer I know that "resisting arrest" charges are oftentimes nothing more than trumped up allegations.  And that whats more is that my knowlege can help you.

Below, our California criminal defense attorneys address the following:

1. The legal definition of "Resisting an Executive Order

2. Legal Defenses

3. Penalties, Punishments, and Sentencing

4. Related Offenes

 

If, after readin this article you have any questions dont hesitate to call.

 

THE LEGAL DEFINITION OF "RESISTING AN EXECUTIVE OFFICER"

PENAL CODE 69 ACTUALLY ENCOMPASES TWO SEPERATE OFFENSES.

1. Willfully and unlawfully attempting by threats or violence to deter or prevent an executive officer from performing a lawful duty, and

2. Using force or violence to resist and executive officer in the perfromance of his or her lawful duties.

Lets take a closer look at some of these terms and phrases to gain a better understanding of their legal definitions

WILLFULLY AND UNLAWFULLY

You act willfully when you committ and act willingly or on purpose.  It doesn't matter if you don't intend to break the law, as long as the act is intentional.

The term "unlawfully" is used to distinguish from lawful threats.   Threatening to report an officer who for example is on the take is not unalawfull. 

 

THREATS

Threats may be oral or written and maybe implied by a pattern of conduct or a combination of statements and conduct.  There is no requirement tha you actually intend to carry out your threatened act. only that you intend fo it to be interpreted as a threat by the intended victim. 

Similiarly, there is no requirement that the threat be immediate or imminent. 

 

FORCE OR VIOLENCE

The words force and violence have the same meaning in a resisting and executive officer case as they do in a california penal code 242  battery case. The force does not need to cause any harm or pain, as even a slight touch done in a rude, angry or offensive manner.  Also touching something attached to the person such as clothing is or a purse is sufficient. 

EXUCUTIVE OFFICER

An executive officer is a public employee who may exercise some or all of his or her own discretion in performing his or her job duties.  Any employee who is charged with enforcing the law is an executive officer. 

this is a much broader definition than the one for peace officer it includes

judges

prosecutors

other elected officials

 

LAWFUL DUTIES

Must be a duty that you prevented him from carrying out a lawful duty.

 

DEFENSES

Some of the defenses although not a complete list are as follows

the officers conduct was unlawful

the officer isn't protected when committing an unlawful act

self defense

similiarly, if you resist an exucutive officer who is using excessive force against you, you are entitled to exercise you right to self defense in accordance with californias self defense laws.  your force must be reasonable under the circumstances.

remember if the officer only uses excessive force because you are resisting what is otherwise a lawful order than this defense will not work.

POLICE MISCONDUCT

pc 69 is often trumped up charge.  when we suspect that you are innocent we can file a pitches motion to investigate possible police misconduct a pitches motion is a request for information in the arresting officers personell file.  If we find a history of complaints or misconduct, it will likely result in the reduction of charges. 

PENALTIES PUNISHMENT AND SENTENCING

Penal Code 69 is a wobbler meaning it can be charged as either a felony or a misdameanor.  depending on the circumstances.

 

If you have any questions don't hesitate to call. 

 

 

A DUI case can last a long time, especially if you’re taking the case all the way to trial. Many times clients will go the route of accepting a plea bargain, which can significantly shorten the amount of time your DUI attorney works on the case. However, before you consider a plea bargain, it’s important to consider the following scenarios.

Almost always a Manslaghter at trial will be a defense or mitigation to first or second degree murder charge.  Rarely is manslaughter charged by itself as a charge brought by the District Attorney. 

Having tried more than 5 First Degree Murder cases, and having personally handled more than 20 more murder cases, and 10 Attempted Murder, cases I know the ins and outs of a Homicide trial.  I wrote earlier about the law of Homicide I will keep this article more to the crime of manslaughter and how that charge relates to the crime of Murder.

 

First as stated above, the District Attorney will usually charge someone on First Degree Murder charge.  As  a result if there is no question that the accused intentionally killed the deceased an argument will ensue to have the case pled to a charge of manslaughter.

If the defendant's argument is that someone else killed the deceased that is a very different defense. But lets say you are accused of First Degree Murder and you are going to trial, the District Attorney has rejected your offer of pleading guilty to manslaughter and the case is now at trial.

Many times I will simply tell the jurors up front they are here to decide wether the accused should be held liable for first degree murder, second degree murder, or manslaughter.

 

will wil admit that the defendant killed the deceased but wil say there was either one of three things present.

1. Provocation

2. Imperfect Self Defense

3. Heat of Passion

it should be noted that Self Defense, is a different defense. Meaning you or someones elses life was in danger of death or serious bodily injury and that is a complete defense to Homicide. We will have a seperate article regarding self defense.

WHAT IS PROVOCATION

Under Jury Instruction 522 Sufficient Provocaction can reduce a Murder from First Degree Murder to Second Degree Murder and Second Degree Murder to Manslaughter. 

This is because if you were provoked you acted out of the provocation in committing the intentional murder not deliberation and premeditation.  Contrary to Jury Instruction 570 which we will discuss below, the provocation does not have to be found reasonable just sufficient.  This is because if you are acting out of provocation then you will not be acting with malice which is needed for Second Degree Murder. 

Therefore the provocation shows you were not acting with deliberation and premiditation, and you were not acting with Malice.  Again this is a stand alone Jury Instruction, meaning it does not need a  lot of other Jury Instructions to explain it and must be argued properly to the Jury without mixing it up with the 570 Heat of Passion Instruction.  That is exactly why you need an Attorney that has tried Homicide cases.

WHAT IS HEAT OF PASSION 

The Heat of Passion Jury Instruction is Instruction Number 570. 

Heat of passion means that a person intentionally killed another person, however, when they did this they acted out of heat of passion with adequate provocation and before the passions had cooled.  You see in our criminal justice system we look at what the person did wrong and what there mental state or what they were thinking when they did what they did.   And our legal system believes that if someone kills someone before the passions have cooled then they should be treated as less culpible then say someoen that premiditates a killing. 

Jury Instruction 570 has two elements

Subjective Element was the person provoked, and acted due to that provocation and

Objective Element A reasonable person would have been provoked under the same circumstances. 

The standard explanation is if you walk in on your wife having sex with another man immediately grab a gun and kill the man.  This could lead to a manslaughter conviction because the person acted immediately before the passions had cooled and a reasonable person would be provoked to act without due caution and circumspection at a man sleeping with his wife.

WHAT IS IMPERFECT SELF DEFENSE

Imperfect Self Defense is another way to have a Homicide reduced from First Degree to Second Degree and reduced to Manslaughter. 

Imperfect self defense has two different elements.

1. That the person had an HONEST BELIEF IN THE NEED TO USE DEADLY FORCE

2. That that belief was unreasonable

so there is no reasonableness requirement.  In other words just as long as the persons belief was reasonable that he needed to use deadly force then the crime is manslaughter under the imperfect self defense doctrine. 

example

you are at a bar and a menacing looking person is staring at you.  At one point he even makes a comment a to you.  You decide to leave.  He follows you outiside.  Once outside he appears to reach for a weapon, you shoot and kill him.  It ends up  that he only was going for his keys to leave.  However the jury believes that you honestly believed in your need to defend yourself even though that belief was unreasonable you would not be guilty of first degree murde, because you were acting out of your unreasonable belief no premiditation and deliberation. 

You would not be guilty of Second Degree Murder because you were not acting out of malice you were acting out of your belief in the need to protect yourself with deadly force. Therefore you would be guilty of Manslaughter. 

A motion to suppress evidence is a motion to suppress evidence that has been illegally obtained as a result of an illegal search and seizure by government agents.  

If you have been arrested or your property has been seized you need an experienced Attorney to file motions do investigation, and determine if a motion to suppress is applicable to your case.  

As a former Military Policeman, Deputy Probation officer, Deputy District Attorney, with more than 13 years of experience in Criminal Law, and someone that has taught Legal Evidence at the Junior College level, I know the evidence code and can help you with your case.  There are several condiderations we look at when deciding whether to file a motion to suppress. 

1. Was there a search by a government agent.  This can be a more difficult question than it may look like at first.  

because for the search to be illegal there must be conduct by some government agent for example a police officer is a government agent.

2. Was there a search warrant.  If there is a search warrant than the question is whether that warrant was valid.   

a warrant must be based upon probable cause and be reasonably specific, and not vague or overbroad.  

but lets first look at a search without a warrant. 

For a search without a warrant to be valid there must be some firmly rooted exception to the warrant requirement. 

example 

Emergency search or seizure.

A search of you person and clothing as a result of an arrest. 

A search of your automobile ( police must have probable cause for this search). 

 

For the purpose of this discussion lets say I or whomever you have as your Attorney decides to file a motion to suppress evidence.  It would likely go something like this.

First he would read the police report, and find there was no warrant for a search and he does not belive the emergency situation that the police have related in your report. 

First, a motion must be written and served upon the District Attorney within 10 court days of the date of the calendared motion.  

Next, the officer will be called into court and both the District Attorney and the Attorney for the accused are allowed to ask questions of the officer. 

Usually there will be some guidelines to these questions based upon the moving papers of the accused and the response filed by the prosecution.

 

The Judge will consider both the argument of counsel and the moving papers and the testimony.  He will then make a ruling as to the admissibility of the evidene.  If the evidence is suppresed by the Judge that means that the evidence cannot be used by the prosecution to prove your guilt it is suppressed.  The reason for this is to assure lawfurl police conduct if the officer knows that evidence will not be admitted into court he or she will be less likely to introduce illegal means to obtain the evidence.  

We will save the fruit of the poisonous tree doctrine for a later discussion.  This is a tricky doctrine and needs more time.  

Many times the legality of a search is determined by the judge determining if the facts were sufficient to assume there was an emergency situation happening. 

example the police arrive at a home due to a call by a neighbor they do not have a warrant.  However, upon arrival they begin to hear screaming and yelling and someone sounding as if they are very scared.   They knock on the door several times and no one answers, they then hear a thud.  This could be an emergency due to the thud and the fact someone could be in danger.  If the officers enter and find drugs, a women hurt, and other indicia of drug sales most likely all of these items would be admissible.  This is becuase the Judge would most likely find under those circumstances that an emergency was occurring and the police needed to enter to prevent someone being hurt. 

If you have any other questions please give us a call this is a basic overview of motions to suppress and some deal with very difficult issues. 

 

 

 

 

 

 

Under California DUI law, you are currently considered to have given "implied consent" to a DUI chemical blood or breath test if you drive a car. If you refuse to take such a test after being lawfully arrested for DUI, and you are later convicted of DUI, you will face additional penalties for chemical test refusal.

Being offered probation is usually seen as a good thing and it is.  Howver, probation and the violation consequences can be serious.  If you have been arrested give me a call as A Criminal Defense Attorney with more than 13 years of experience I have handled many hundreds of cases that have resulted in probation 

First, there are two kinds of probation with very different consquences and requirements Felony Probation and Misdameanor Probation or as sometimes called bench probation. 

If you are conivcted of a Felony and have no prior history usually you will be offered probation. 

There are certain people that are inelgible for probation.  If you are convicted of a Violent Felony under 667.5 then you are not eligibe for probation.  You might recieve a stayed sentence which I will review later. 

Also, if you have serious felony, in other words a strike offense, under 1192.7 and a current felony conviction.  You are considered ineligibe for probation. 

In this case you could either get a stayed sentence, or go to a 90 diagnostic in State Prision

A stayed sentence means you will be given a prision term say for expample 5 years, but that sentence is stayed pending you successfully completing probation.  And if you violate you will automatically get that sentence of 5 years. 

A 90 diagnostic means you go to reception in the state prison system.  You will be evaluated to determine if you are a suitable candidate for probation.  Usually three different counselors will give there recommendation as to whether you are a suitable candidate for probation. 

The Judge does not have to go with there recommendation and may committ you to prison.

PEOPLE WHO ARE ONLY ELIGIBLE FOR PROBATION UNDER UNUSUAL CIRCUMSTANCES.

Under certain circumstances you could be offered probation under unusual circumstances. 

The law makes an assumption that certain people convicted of certain crimes are not eligible for probation.  except in unusaul circumstances or where the interest of justice will best be served if the person is granted probation.

1. If you inflicted gbi or great bodily injury you are presumpitively inelgible for probation. 

2. an offernse where you used a deadly weapon

an offense where you hurt or killed someoen in a drive by shooting

a grand theft of over $100,000 dollars.

There are several more crimes and this is not an exhuastive list.

HOW DO I GET PROBATION IF I AM PRESUMPTIVELY INELIGIBLE?

The sentencing Judge may look at certain factors to determine if you will be granted probation even though you are statutorily ineligible. Those are listed in rule of court 4.413.

 

These factors include the seriousness of the defendant's crime in comparison to others

wether youthful or aged

indicators of reduced culpability

The factors in 4.413 are considered to determine if the statutory limitation is overcome then the court looks at the factors in 4.414 to determine if probation should be granted.

Another factor which the court could look at is if there is presence of some mental health problem undiagnosed.  For example the person had an undiagnosed bipolar disorder and if he had been properly cared for then he probably would not have committed the crime. 

Of course there must be a psychiatrist or psyhcologist to make this diagnosis.  We often have psychologist examine our clients.

If the court finds unusual circumstances they must still go through the analysis under 4.414 to determine if probation will be granted these include:

1. the seriousness of the crime

2. wether the defendant was armed

3. the vulnerability of the victim

4. whehter the defedant inflicted physical or emotional injury

5. the degree of monetary loss to the victim

6. whether the defendant was an active or passive participant

7. whether the crime was committed under unusual circumstances such as great provocation, which is unlikely to occur

8. whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on part of the defendant,

9. whether the defedant took advantage of a position of trust.

the court also looks at factors as to the defendant such as

what is the prior record

prior performance on probation or parole

whether the defendant was remourseful

and there are several other factors

After looking at all these factors the judge can make the determination that you should get probation.

 

WHAT HAPPENS IF  I VIOLATE PROBATION

If you are on Felony probation and violate a  number of things could happen.

1.  You could be sent to state prison. and the term if up to the court.  If you are placed on probation for a felony, and you violate your probation you could be sent to state prision just for that violation. 

for example if you are on probation for vehicle theft you have a possible term haning over  your head of 1-2, or 3 years in prison if you violate your probation.  The court does not tell you which until you are sentenced they are not required to give you the minimum term. 

or if you were given a stayed term  of 1 year, meaning the judge sentenced you to 1 year in prison but stayed the term then, if  you violate that becomes your sentence. You get credit for any time you have already served against your sentence. 

or, you could have your probation revoked and reinstated under the same terms and conditions, with the same date of probation ending.  Say for example you have a minor violation of probation, or it is your first violation the court will often use this sentence and wil add some type of punishment, say time in the county jail. 

HOW IS MISDAMEANOR PROBATION DIFFERENT.

I belive the distinctions between Felony probation and Misdameanor probation are being blurred.   As a former probation officer, I have seen the misd probation become more restrictive and less like the court probation  of the past where you simply were on bench probation without many terms and conditions. 

If you violate your misd terms and conditions you could face jail time or other forms of probation depending on the severity of the violation.

Many times the probation department will put our a warrant for someoen that has violated misd probation, but never follow up and never revoke probation.  That means that if probation catches up with you 5 years later and brings you before the court the court no longer had jurisdiction of you.  This is because your 3 year term of probation has run out and altough you had a warrant out your probation was never revoked; therefore, your probation time ran out.  This is a fine distinction that most attorneys and many judges look past. 

So if you have questions feel free to call.

 

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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