Trying to Prevent an Executive Officer From Performing A Duty – Penal Code Section 69

California law punishes those who use threats or violence to deter an “executive officer” from carrying out his or her duty.¹ An “executive officer” is a government employee vested with discretion to make decisions on the job. Police officers and prosecutors are examples of executive officers.

Penal Code Section 69 violations are typically considered by prosecutors whenever police officers find themselves in a violent encounter².

Elements of the Offense

Prosecutors must prove the following elements beyond a reasonable doubt:

1. The defendant willfully used force or the threat of force to prevent an executive officer from carrying out official duty;

AND

2. When the defendant made his threat or used force, he had the intent to deter the executive officer from performing a lawful duty.³

The existence of a “threat” may be determined based on the defendant’s verbal or written statements to the officer, or any behavior that implies a threat.⁴ The prosecution must prove, however, that the defendant intended his statement to be taken as a threat. A person may still be found guilty of the crime even if he made a hollow threat that he never truly intended to carry out. The key is whether the defendant had the goal of deterring the officer from carrying out his or her duty.

Examples of PC 69 Violations:

• Oscar is pulled over for a broken head lamp. When challenging the ticket, Oscar becomes extremely angry and steps out of his vehicle. He raises his fists and takes a fighting stance against the Highway Patrol Officer. The officer subdues Oscar by deploying his electronic control device. The officer may choose to arrest Oscar for a Penal Code Section 69 violation, or the less serious offense of resisting or obstructing an officer under Section 148.
• Bob sees the deputy district attorney at a grocery store who is presently investigating him for fraud. Bob tells the prosecutor that he will see him dead if he files criminal charges against him.

Defenses

Every case turns on its unique facts. Defenses to a PC 69 violation may include:

1. Intent. Defense counsel should closely scrutinize any words or actions attributed to his client and the circumstances under which the remarks were made. Words and actions can be taken out of context. There may be a reasonable non-threatening interpretation to the evidence. All circumstances surrounding the defendant’s intent should be closely scrutinized. The “threat” prong of the statute requires a “specific intent,” i.e., that the defendant intended to dissuade the executive officer’s official duty in the future. The violent “resistance” prong of Penal Code Section 69, is considered to be a “general intent” crime in that the prosecution must only prove that the defendant knowingly and “willingly” (purposefully) resisted an officer.⁶Some police officers are known to use dangerous or excessive restraint techniques. By compressing an arrestee’s chest or choking off his airway, an officer can induce an involuntary reaction on the part of the arrestee in which the person struggles for air. If the defendant struggled with officers under these conditions, the issue of criminal intent should be vigorously challenged.
2. Knowledge. The defendant must know that the person he resisted or threatened was, in fact, an executive officer.⁷ The knowledge element can often be contested if the officer wore civilian clothing.
3. Voluntary intoxication. Voluntary intoxication can be a defense to a Penal Code Section 69 charge when the allegation is based on a threat.⁸ Alcohol, drug use, or any other mental defect may reflect on the defendant’s intent. It is common for impaired individuals to make foolish and outlandish statements immediately after they are taken into custody. Intoxication may undermine the prosecution’s assertion that the defendant harbored the specific intent to prevent the officer from performing his official duty.
4. The peace officer used excessive force or was not otherwise performing a lawful duty. A defendant cannot be convicted unless the officer was acting lawfully at the time of the offense. In some cases, defense counsel can demonstrate that a police officer was engaged in an unlawful search or detention at the time of the encounter.⁹ Similarly, a court must give a self-defense instruction to explain the defendant’s conduct if it appears that the officer was acting unlawfully or using excessive force.¹⁰

Punishment under Penal Code Section 69

Penal Code Section 69 is a “wobbler” offense. This means that the crime may be punished as either a felony or a misdemeanor. A violation is punishable as:

• A misdemeanor carrying incarceration in the county jail for up to one year;
• A felony punishable by a local prison term of 16 months, 2 years or three years. (Absent disqualifying events stemming from the defendant’s prior criminal history, Section 69 offenders shall be incarcerated in county jail facilities, not state prison (Penal Code Section1170(h)).
• Felony probation may be granted with a local jail term of up to one year.
• A fine not to exceed $10,000.¹¹

Commentary

Bill Haney is a former Supervising Deputy District Attorney. He supervised the prosecution of all Penal Code Section 69 offenses in the Ventura County District Attorney’s Office. Additionally, Mr. Haney has trained hundreds of police officers in the lawful use of force in Ventura and Los Angeles Counties.

A defense investigation must involve the interview of all percipient witnesses as soon as possible. Additionally, it is possible that an adjacent home or business caught the incident on surveillance video. Some jurisdictions require cameras to be placed on the bodies of officers, or in their patrol cars. Video evidence sometimes acts as a “silent witness” and completely undermines the government’s case. All available evidence should be closely scrutinized to determine the accuracy of the involved officer’s report.

Police officers are given wide latitude to use force under the law. As a result, some officers gravitate towards excessive force in the field. It is not uncommon for some officers to use chest compressions and other improper restraint techniques that induce an involuntary flight or fight response on the part of the arrestee. If the arrestee is injured, officers will almost always demand a criminal filing against him for a violation of Penal Code Section 69, or the crime of resisting arrest under Penal Code Section 148. Officers know that if the District Attorney obtains a conviction against the arrestee, his ability to sue them in state or federal court for civil rights violations is greatly diminished. It may be necessary to hire the services of an expert witness to explain why the officer’s conduct was unlawful, or why the use of force was excessive.

When words alone form the basis of a PC 69 charge, prosecutors have wide latitude in charging a defendant. Threats that involve death or great bodily injury will often be charged under Penal Code Section 422 if the officer is willing to admit that he was in sustained fear. Section 422 is a “strike offense.”¹² Because officers are sometimes loathe to admit that an arrestee’s threat left them in sustained fear for their safety as required by Penal Code Section 422 (Criminal Threats), prosecutors may opt to file a felony under Section 69.

If you are the target of a Penal Code Section allegation, you should contact a competent criminal defense attorney immediately.

¹California Penal Code § 69

²Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 103: Reasonable doubt is proof that leaves a juror with an abiding conviction that the criminal allegation is true.

³CALCRIM No. 2651

⁴CALCRIM No. 2651

⁵CALCRIM No. 2651

⁶People v. Rasmussen (2010) 189 Cal.App.4th 588, 594.

⁷People v. Hendrix (2013) 214 Cal.App.4th 216.

⁸People v. Lopez (2005) 129 Cal.App.4th 1508.

⁹In re Manuel G. (1997) 16 Cal.4th 805.

¹⁰People v. Castain (1981) 122 Cal.App.3d 138, 145.

¹⁰Penal Code § 69

¹⁰Penal Code § 1192.7.