Resisting Arrest Prosecution California Penal Code Section 148

To prove that the defendant is guilty of resisting arrest, the prosecution has the burden of showing that:

1. The defendant willfully resisted, delayed, or obstructed an officer or emergency medical technician (EMT); AND
2. It occurred while the officer or EMT was engaged in the performance of his/her duties; AND
3. The defendant knew or reasonably should have known that the individual was an officer or EMT engaged in their duties.

In addition, if the accused is being charged with P.C. 148 (b) or (c) or (d), the prosecution has the burden to establish that the defendant had the specific intent to remove or take a firearm or weapon from the officer.

In order to prove the violation of the subdivision (d), the prosecution can demonstrate that any of the following direct, but ineffectual acts occurred:

1. The officer’s holster strap was unfastened by the defendant.
2. The firearm was partially removed from the officer’s holster by the defendant.
3. The firearm safety was released by the defendant.
4. An independent witness corroborates that the defendant stated he or she intended to remove the firearm and the defendant actually touched the firearm.
5. An independent witness corroborates that the defendant actually had his or her hand on the firearm and tried to take the firearm away from the officer who was holding it.
6. The defendant’s fingerprint was found on the firearm or holster.
7. Physical evidence authenticated by scientifically verifiable procedure established that the defendant touched the firearm.
8. In the course of any struggle, the officer’s firearm fell and the defendant attempted to pick it up.

Additional Notes:

1. • An act is “willfully” done when it is committed willingly or on purpose. There does not need to be intent to break the law, hurt another person, or gain any kind of advantage.
   • “Resist, Delay, or Obstruct” can mean physical acts such as running away or resisting being handcuffed, put in a police car, or placed in a holding cell. However it can also include verbal or non-physical acts such as falsely identifying yourself during an investigation, refusing to disclose your identity to an officer, or ignoring an officer’s order to stop interfering with an investigation.
   • “Engaged in the performance of his/her duties” means that the peace officer is making or attempting to make a lawful arrest, exercising custody of another person who has been placed under arrest, detaining an individual for questioning, using reasonable force in an effort to conduct a lawful detention or arrest.
   • “Knew or reasonably should have known” is judged objectively by the judge and or jury based on the facts of the case. Some examples may include whether the officer or EMT was in uniform or driving a recognizable “official” car such as a police car or ambulance.