Metropolitan News-Enterprise


Monday, December 23, 2013


Page 1


Court of Appeal Takes Broad View of Resisting-Arrest Statute


By JUSTIN LEVINE, Staff Writer


California Penal Code §69, which criminalizes the threat or use of force or violence to resist or prevent a police officer from performing an official duty, does not require that forceful resistance be specifically directed towards or used on any officer, the Fourth District Court of Appeal ruled Friday.

Div. One affirmed Fernando Bernal’s conviction for violating the statute in a confrontation with Escondido officers. He was arrested in October 2011 after officers who spotted him along with two others at night on a closed bike path that was subject to a gang injunction.

Bernal had been identified as a known gang member.

After the officers approached Bernal, they conducted a patdown search and discovered an axe in his front waistband. Officer Russell Whitaker then moved the axe to a secure area and attempted to handcuff him.

Before handcuffs could be placed on him, Bernal used his hands to push against Whitaker and attempted to run.

Whitaker dropped his handcuffs and grabbed Bernal around his waist with both hands in order to try and prevent him from running. Bernal ran, dragging Whitaker with him for roughly nine yards while he jerked his hips in an effort to shake Whitaker off.

Both men eventually fell to the ground and an assisting officer ran over to help Whitaker place the handcuffs on. Whitaker suffered bruised and scraped knees from the melee.

Force Denied

On appeal, Bernal argued that his §69 conviction should be reversed because there was no evidence that he used force against or on Whitaker himself and that §69 requires that any force or violence be specifically directed toward an officer.

The Court of Appeal rejected his argument, calling it a “narrow interpretation” of the statute.

Writing for a unanimous panel, Justice Patricia Benke said that a violation of §69 only requires “forceful resistance” and does not require force or violence on the person of the officer.

Benke wrote:

“[F]orce used by a defendant in resisting an officer’s attempt to restrain and arrest the defendant is sufficient to support a conviction…By interpreting section 69 in terms of the risk of violence created by any forceful resistance to arrest, rather than in terms of any intent to commit harm, [it is not required] that a defendant intend to harm a police officer or direct force or violence toward an officer.”

She said that under this interpretation, “Bernal’s forceful attempt to escape from Officer Whitaker plainly violated section 69.”

Unpublished Portion

In an unpublished portion of her opinion, Benke said the trial judge was not required to give a sua sponte instruction on the meaning of the phrase “force or violence” as used in §69 since the legislature didn’t intend to imbue the words with any technical meaning and the words were commonly understood by jurors.

She also rejected Bernal’s various allegations of prosecutorial misconduct and said that there was sufficient evidence to support his conviction of street terrorism under Penal Code §186.22(a) since the record showed he and his gang cohorts were deliberately armed because they were going to be tagging in a rival gangs’ territory.

The case is People v. Bernal, D062831.


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