Lounsbery Law Office, PC has successfully had the charge of Resisting an Executive Officer dismissed for previous clients. We have a very good handle on the law and strategy involved in fighting these charges.
What is Resisting an Executive Officer?
The law behind the crime of Resisting an Executive Officer is found in Penal Code 69. Per the California Criminal Jury Instructions 2651 and 2652, there are two ways this crime can be committed.
The first involves trying to prevent an officer from performing his duty. To convict you of this crime, the prosecutors must prove:
- you willfully and unlawfully used violence or a threat of violence to try to prevent or deter an executive officer from performing the officer’s lawful duty, and
- when you acted, you intended to prevent or deter the executive officer from performing the officer’s lawful duty.
If the prosecutors are bringing the charge against you based on an allegation that you used a threat of violence (as opposed to the actual use of violence), they must also prove that you intended that your statement be taken as a threat by the executive officer.
The second involves resisting an executive officer performing his duties. To convict you of this crime, the prosecutors must prove:
- you unlawfully used force or violence to resist an executive officer, and
- when you acted, the executive officer was performing his lawful duty, and
- when you acted, you knew the executive officer was performing his duty.
The word “willfully” here means willingly or on purpose. An “executive officer” is defined as any government official who may use his own discretion in performing his duties. Police officers are included as “executive officers” for the purposes of this crime.
A peace officer is not lawfully performing his duties if he does any of the following while performing his duties:
- unlawfully arrests someone
- unlawfully detains someone
- uses unreasonable force
- uses excessive force
Is there a way to get my Resisting an Executive Officer charge dismissed?
There are defenses applicable to this offense. The most common are found in California Criminal Jury Instructions 2670. In order for an officer to make a warrantless arrest for a misdemeanor or infraction he must have probable cause that you committed the misdemeanor or infraction in his presence. If a peace officer uses unreasonable or excessive force while arresting or detaining you, you may lawfully use reasonable force to defend yourself.
A person being arrested uses reasonable force when he:
- uses that degree of force that he actually believes is reasonably necessary to protect himself from the officer’s use of unreasonable or excessive force, and
- uses no more force than a reasonable person in the same situation would believe is necessary for his protection.
When Resisting an Executive Officer is charged, more often than not the facts regarding the incident are going to be very complicated and messy. The smallest details can make or break your defense. The following details are of extreme importance: positions of bodies, words said by everyone involved, tone of voice used, timing involved, space between people and objects, etc. When litigating your case, your lawyer, the prosecutor, and the judge are likely to ask very specific questions about the minute details involved. These are cases where inches matter. The reason is because, as you read in the law above, it matters whether someone is acting “reasonably” and it is difficult for a judge or jury to make a decision as to what is reasonable and what is not unless they have a very clear picture in their head as to what exactly happened. Read more about what you need to do to make sure we can paint the most accurate and detailed picture of what happened.
When prosecutors file Resisting an Executive Officer charge against an accused, they will commonly add a second charge of Resisting Arrest or Delaying or Impeding an Officer in his Duties, a misdemeanor. The reason they do this is because it is easier to prove Resisting Arrest than Resisting an Executive Officer.
What are the consequences of a Resisting an Executive Officer conviction?
Resisting an Executive Officer is a wobbler, which means it can be charged either as a felony or a misdemeanor. As a felony, the maximum sentence is 3 years in state prison and a fine of $10,000. As a misdemeanor, the maximum sentence is 1 year in the county jail.
Resisting an Executive Officer is a serious charge often involving violence. In fact, it often involves violence by law enforcement officers. This means that prosecutors and law enforcement agencies fight these cases very hard and do not give up easily. One reason is because if they lose their case, they know they may face civil liability for their actions, which could, hypothetically, cost them millions of dollars. You need an attorney who will work hard for you. To speak with El Cajon attorney experienced in defending clients against Resisting an Executive Officer charges, call 619-792-1451 or send us an email today.