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Wiley Argues for Recklessness Rule in Resisting-Arrest Cases
Writing Separately to Majority Opinion Holding That Charges May Be Sustained Upon Proof That Defendant ‘Should Have Known’ That He Was Battling Officer, Jurist Notes Split, Says Higher Threshold Is Warranted
By Kimber Cooley, associate editor
Div. Eight of this district’s Court of Appeal has held that negligence in failing to recognize an officer’s status as a member of the police force is sufficient to support a conviction for resisting arrest, drawing a separate opinion by Justice John Shepard Wiley Jr. who argued that the statute’s requisite “willful” mental state is best interpreted as requiring a higher, reckless state of mind.
The question follows a split in authority among the courts of appeal as to whether actual knowledge or negligence is required by Penal Code §148(a)(1), which provides:
“Every person who willfully resists, delays, or obstructs any public officer…in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.”
In Monday’s opinion, authored by Presiding Justice Maria E. Stratton and joined in by Justice Victor Viramontes, the court sided with the decisions holding that negligence as to the officer’s status is sufficient. Stratton wrote:
“[A]ppellant…asks us to strengthen the elements that must be proven to convict a defendant of willfully resisting arrest under Penal Code section 148, subdivision (a). He contends that such a conviction must require proof that a defendant ‘actually knew’ that the person being resisted was a peace officer acting in the lawful performance of official duties. We disagree and hold that section 148, subdivision (a) requires that a jury find only that a defendant ‘knew or reasonably should have known’ that the person they were resisting was a peace officer….”
Wiley penned an opinion concurring in the result but argued that both sides of the divide have adopted faulty interpretations of the “willfulness” standard, asserting that recklessness is the appropriate threshold, saying:
“Although the matter is not free from doubt, the best forecast is that the high court would apply the Model Penal Code’s recklessness standard and not negligence to the resisting arrest statute. Otherwise, mere civil negligence would be sufficient for this criminal statute.”
Challenging his §148(a)(1) conviction was Royce Gresham, who was contacted by police officers in May 2022 after driving his car into an apartment building and allegedly threatening an occupant with a knife.
Gresham claims that he suffers from schizoaffective disorder and that he did not realize that Los Angeles County Sheriff’s Department Deputies Jacob Winter and Dillan Williams—who were in uniform and arrived at the scene in a marked patrol car—were peace officers when he disobeyed their commands to stop resisting their attempts to detain him.
Los Angeles Superior Court Judge Lisa Strassner presided over the ensuing trial and instructed the jury based on California Criminal Jury Instruction No. 2656, which asked the panel to decide whether “[w]hen the defendant acted, he knew, or reasonably should have known, that…Winter was a peace officer performing or attempting to perform his duties.”
The jury found Gresham guilty despite expert testimony by a clinical psychologist as to the defendant’s mental health afflictions. Monday’s opinion affirms his conviction, rejecting the defendant’s invitation to follow the 2019 Sixth District case of In re A.L., which held that the statute requires actual knowledge that the resisted party was a police officer.
Wiley’s View
Wiley pointed to the 2008 California Supreme Court case of Yount v. City of Sacramento which dealt with whether a defendant’s conviction on a charge of violating §148(a)(1) foreclosed his ability to civilly sue the police officer involved for allegedly using excessive force.
Addressing whether claim preclusion applied, then-Justice Marvin Baxter (now retired) cited Court of Appeal decisions setting forth the elements of §148(a)(1) as including that “the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties.”
Wiley opined:
“The Courts of Appeal are well-advised to follow every word from the Supreme Court. Applying Yount’s mention of the elements, we must affirm.”
He added:
“After the…decision, however, a split developed in lower courts over the proper definition of the statute’s elements. If Yount’s mention of the elements is not authoritative, courts should construe ‘willfully,’ in this context, to mean ‘recklessly’ as the Model Penal Code precisely defines this state of mind. Under this interpretation, we must also affirm. This second path to affirmance, however, yields a difference in elements. In some future case, this will be paramount.”
Definition of ‘Willfully’
Noting that the Penal Code’s definition of “willfully” only requires a volitional act, he cited California Chief Justce Roger John Traynor’s opinion for the majority in the 1956 case of People v. Vogel, in which the high court interpreted a different criminal statute with a presumption that moral culpability was mandatory.
Saying that the courts interpreting §148(a)(1)’s “willfullness” as negligence faltered in defining “that requisite higher level of culpability,” he argued that “courts should look to the recklessness standard adopted by the Model Penal Code,” promulgated by the American Law Institute in 1962, which defines the mental state as a “conscious[] disregard[] [of] a substantial and unjustifiable risk.”
Wiley remarked:
“Criminal liability usually requires at least a reckless state of mind….That is, the norm for criminal liability usually requires, and is satisfied by, recklessness. Negligence is a possible criminal law standard. But it is exceptional.”
He acknowledged that “[t]he Legislature is, of course, free to specify that negligence can support criminal liability,” but commented:
“The criminal law only rarely bases penal liability on negligence of any kind. Incarceration and the stain of a criminal conviction are severe penalties. Our society generally reserves this harsh treatment for people who make blameworthy decisions rather than for those who are merely careless.”
Applying his proposed rule to the case at hand, he declared:
“The jury instruction was improper, for it did not require recklessness. But the error was harmless by any standard….Gresham’s view of an approaching man in full police uniform meant he consciously perceived a substantial and unjustifiable risk that he was resisting police officers.”
He added:
“[A]ll paths lead to the same destination for Gresham: we affirm this judgment. But which path is legally correct? For future interactions between police and the public, this matters. Only our Supreme Court can resolve this conflict in the lower courts.”
The case is People v. Gresham, 2025 S.O.S. 2142.
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