Penal Code § 69 PC – Resisting an Executive Officer – California Law

California Penal Code § 69 PC prohibits resisting an executive officer by using force or intimidation to try to prevent executive officers from carrying out their job duties. A conviction is punishable by probation, fines, and up to three years in jail.

Resisting an executive officer is closely related to resisting arrest (PC 148). However, 69 PC is a more serious offense because it involves the use of threats of violence. The section also applies to a broader set of executive duties than just making an arrest.

The issue of resisting the police has gained a great deal of attention after the George Floyd killing and subsequent protests over racial injustice and police abuse.

The full language of the code section states that:

PC 69. (a) Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law, or who knowingly resists, by the use of force or violence, the officer, in the performance of his or her duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both such fine and imprisonment.

(b) The fact that a person takes a photograph or makes an audio or video recording of an executive officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place he or she has the right to be, does not constitute, in and of itself, a violation of subdivision (a).

Examples

• Mark tries to push a police officer, who is attempting to arrest his friend for petty theft.
• Monique blocks the door to a city council member’s office so that the official is denied access.
• Paco “cuts the power” to a county courtroom so that a prosecutor cannot prove a criminal case against his brother.

Penalties

A violation of PC 69 is a wobbler, meaning that it can be charged as either a misdemeanor or a felony, as the following table shows.

Resisting an Executive Officer Offense	California Penalty
As a misdemeanor	Up to 1 year in jail or misdemeanor (or summary) probation
As a felony	16 months, 2 years, or 3 years in jail or felony (or formal) probation.

Resisting an executive officer is not generally not a strike under California’s three-strikes law. Though it can be treated as a strike if the officer suffers great bodily injury or if a firearm or deadly weapon is used.¹

Our California criminal defense attorneys will explain the following in this article:

• 1. What is “resisting an executive officer”?
• 2. Defenses
• 3. Penalties
• 4. Immigration Consequences
• 5. Expungements
• 6. Gun Rights
• 7. Civil Remedies for False Arrest
• 8. Related Offenses
• Additional Reading

1. What is “resisting an executive officer”?

Penal Code 69 PC is the California statute that makes it a crime to either:

1. try to prevent an executive officer from performing their duties, or
2. resist an executive officer in the performance of their duties.

To convict you of resisting an executive officer under a prevention offense, prosecutors must prove beyond a reasonable doubt these two elements of California Criminal Jury Instruction “CALCRIM” 2651:

1. you willfully and unlawfully used violence, or a threat of violence, to try to prevent an officer from performing a lawful duty, and
2. when you acted, you did so intentionally.²

Meanwhile, to convict you of resisting an executive officer under a resistance offense, prosecutors must prove beyond a reasonable doubt these three elements of California Criminal Jury Instruction “CALCRIM” 2652:

1. you unlawfully used force or violence to resist an executive officer,
2. when you acted, the officer was performing a lawful duty, and
3. when you acted, you knew the officer was performing a duty.³

These elements are discussed below.

“Executive Officer”

An executive officer is a government official who may use their own discretion in performing his duties.⁴ Examples include:

• police officers and sheriffs,
• judges,
• government prosecutors and defense attorneys, and
• other elected officials.

“Willfully”

You commit an act willfully when you do it willingly or on purpose.⁵

“Threat of Violence”

A threat may be oral or written and may be implied by a pattern of conduct or a combination of statements and conduct.⁶

Note that you do not have to communicate the threat directly to the intended victim: You may do so through someone else.⁷

Note also that it is not necessary, for a guilty conviction, that you have the actual ability to carry out the threat.⁸

“Violence”

“Force” and “violence” mean any unlawful application of physical force against another person.

It is not necessary that the application causes harm or pain – the slightest touch is enough if done in a rude, angry, or offensive manner.⁹

2. Defenses

Here at Shouse Law Group, we have represented literally thousands of people accused of obstructing authority, including resisting an executive officer. In our experience, the following six defenses have proven very effective with judges, juries, and prosecutors at getting these charges reduced or dismissed.

The Officer’s Conduct Was Unlawful or Outside of their Job Duties

An officer must be performing some lawful duty in order for you to be found guilty under 69 PC.¹⁰ This means a solid defense is for you to show that, while you may have interfered with an officer, that officer was acting unlawfully or outside the cope of their job.

For example, a peace officer is not lawfully performing their duties if they are:

• unlawfully arresting or detaining you, or
• using unreasonable or excessive force in their duties.¹¹

If we believe you have been a victim of police misconduct, we would file a Pitchess motion. This is a request for information contained in the law enforcement officer’s personnel file.

If it turns out that other people have accused the officer of misconduct, that information can be used to impeach the officer’s credibility. This could lead to the charge being reduced or dismissed during the pretrial process.

You Acted in Self-Defense

If you resisted an executive officer who was using excessive force against you, you are entitled to exercise your right to defend yourself in accordance with California’s self-defense laws. These laws will protect your conduct as long as the force you used was reasonable under the circumstances.¹²

Typical evidence we rely on in these cases includes eyewitness accounts, surveillance video, and medical records.

There Was No Executive Officer

Recall that 69 PC only applies to executive officers. Maybe the alleged victim in this case believed they were an executive officer when in fact 69 PC does not apply to them.

In these cases, we would examine the alleged victim’s job title and duties to see if there is a plausible argument that they do not qualify as an executive officer.

Nothing You Said Was a Threat of Violence or Prevented the Officer from Doing their Job

We have seen cases where people were arrested for PC 69 for saying to the officer something like, “You are the worst cop I have ever seen. You should be fired!”

While this is not a prudent thing to tell police, it does not count as violence, and it does not prevent the officer from carrying out their duties. As long as no credible physical threats were made – or nothing was said to deter the officer from doing their work – the charge should be dismissed.

Nothing You Did Prevented the Officer from their Job Duties

We have also seen PC 69 cases where people were arrested for giving an officer the middle finger or stomping their feet in anger.

While these actions are not recommended, they do not prevent the officer from carrying out their duties. Therefore, resisting executive officer charges should not stand.

You Did Not Realize You Threatened an Executive Officer

We use this defense when you genuinely did not know – and had no reason to know – that the person you threatened was an executive officer. This is also a handy defense if you were intoxicated since we can argue you lacked the mental capacity to form any criminal intent.

In some cases, we may be able to reach out to the D.A. prior to charges getting filed (called a prefile intervention). If we can show the prosecutors that their case is too weak to justify charges, they may agree to drop the case before it even gets to court.

3. Penalties

A violation of Penal Code 69 PC is a wobbler, meaning that it can be charged as either a misdemeanor or a felony.

If charged as a misdemeanor, resisting an executive officer is punishable by:

• misdemeanor (or summary) probation,
• up to one year in county jail, and/or
• a maximum fine of $10,000.¹³

If charged as a felony, the offense is punishable by:

• felony (or formal) probation,
• 16 months, 2 years, or 3 years in county jail, and/or
• a fine of up to $10,000.¹⁴

You may also be ordered to pay restitution to the victim for any injuries or losses.

4. Immigration Consequences

If you are a non-citizen convicted of felony resisting an officer – and the facts show that the felony is an “aggravated” felony – you face being deported.¹⁵ Therefore, seek out legal counsel right away to try to get your charge reduced to a non-deportable offense.

5. Expungements

An “expungement” releases you from virtually “all penalties and disabilities” arising out of the conviction.¹⁶ As a basic rule, PC 1203.4 authorizes an expungement of your criminal record provided you:

1. successfully completed probation or jail, and
2. are not currently charged with a criminal offense, on probation for one, or serving a sentence for a crime.¹⁷

6. Gun Rights

A felony conviction for violating PC 69 will strip you of your gun rights for life. A misdemeanor conviction should not affect your right to possess or own firearms.

7. Civil Remedies for False Arrest

There are instances when you may get injured because an executive officer is acting unlawfully. In these situations, you may be able to file a civil lawsuit for:

1. false arrest, or
2. a violation of United States Code Section 1983.

False Arrest

A false arrest is a type of wrongful arrest in which you are detained without your consent and without legal authority. In the event that a false arrest occurs, you can bring a civil lawsuit against the police and try to obtain compensation for any losses incurred.

To succeed in such a civil suit, you must successfully prove the following:

1. the police arrested you without a warrant,
2. you were harmed, and
3. the officer’s conduct was a substantial factor in causing that harm.¹⁸

You may be able to obtain both:

• compensatory damages, and
• punitive damages.

Section 1983 Claims

United States Code Section 1983 is a law that allows people whose constitutional rights have been violated by government officials the chance to sue those officials in court.

The constitutional rights protected by Section 1983 include:

• the Fourth Amendment constitutional right against unreasonable search and seizure, and
• the Eighth Amendment constitutional right against cruel and unusual punishment.

This means if an executive officer violates either of these rights of a party, that party may try to bring a civil suit to recover any damages the officer caused.

A plaintiff bringing this suit may be able to recover both:

• compensatory damages, and
• punitive damages.

8. Related Offenses

Battery on a Peace Officer – PC 243

Penal Code 243 PC makes it a crime:

1. to unlawfully harm or touch a police officer in an offensive manner, and
2. to do so, while the officer is engaged in the performance of his duties.

Note that this offense applies only to police officers, while 69 PC applies to the broader topic of executive officers.

Evading a Police Officer – VC 2800.1

Vehicle Code 2800.1 VC makes it a crime to willfully attempt to flee from a police officer who is pursuing you in a car or on a bicycle.

Note that Penal Code 69 is much broader in scale since VC 2800.1 only applies to the limited fact pattern of trying to flee from a cop that is in a car or on a bike.

Felony Reckless Evading – VC 2800.2

Vehicle Code 2800.2 VC bars felony reckless evading, which is fleeing from the police while driving with a willful or wanton disregard for the safety of people or property. Despite its name, felony reckless evading can be prosecuted as a misdemeanor or a felony.

Criminal Threats – PC 422

Penal Code 422 PC is the California statute that prohibits “criminal threats.”

A “criminal threat” is made when:

1. you threaten to kill or physically harm another person, and
2. that person is thereby placed in a state of reasonably sustained fear for their safety or for the safety of their immediate family.¹⁹

Note that the victim here does not have to be limited to an executive officer or a police officer.

Assault – PC 240

Penal Code 240 PC prohibits assault, which is the illegal attempt (with the present ability) to cause a violent injury to another person.

Simple assault is a misdemeanor punishable by up to six months in jail and up to $1,000. The penalties can double if the victim is an on-duty officer.

Assault with a Deadly Weapon – PC 245(a)(1)

Assault with a deadly weapon under Penal Code 245(a)(1) PC is defined as attacking or attempting to attack another person with a weapon capable of causing death or great bodily injury. This can be a misdemeanor or a felony depending on the case.

Assault on a Police Officer – PC 241(c)

Penal Code 241(c) PC prohibits assaulting a police officer while they are performing official duties. This is a misdemeanor carrying up to one year in jail and/or $2,000.

Battery – PC 242

Penal Code 242 PC defines simple battery as the “willful and unlawful use of force or violence” on another person. Simple battery is a misdemeanor punishable by up to six months in jail and up to $1,000.

Aggravated Battery – PC 243(d)

Penal Code 243(d) PC defines aggravated battery as battery causing serious bodily injury. Depending on the facts, this offense can be a misdemeanor carrying up to one year in jail or a felony carrying up to four years in jail.

Resisting Arrest – PC 148(a)

Penal Code 148(a) PC makes it a misdemeanor to willfully resist, delay or obstruct peace officers or EMTs who are performing their official duties. This crime is usually less serious than resisting an executive officer.

Additional Reading

For more information, read our related articles:

• Police misconduct – how to bring a lawsuit – Bringing civil charges against law enforcement.
• Is it illegal to lie to police? – Whether giving false information is a crime.
• What does “resisting, delaying or obstructing an officer” mean? – What qualifies as resisting an officer.
• Do I have to identify myself to police in California? – Your legal obligations to police.

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