Resisting Arrest

• Resisting Arrest, per P.C. §§ 69 and 148(a)(1)
• Relevant Jury Instructions in a Resisting Arrest Case

It is reversible error for a trial court to instruct a jury in a criminal case that the defendant’s unlawful resistance to his arrest negates the prosecution’s need to prove that the officers acted in the lawful performance of their duties.

On December 18, 2018, defendant John Wesley Southard was observed by two California Highway Patrol (CHP) officers (Officers Brenton Dunaj and Spencer Good) on Highway 101 (a two-lane stretch of highway, with one lane in each direction) in Del Norte County, driving a pickup truck at about 35 mph in a 55-mile-per-hour speed zone.  It was also observed that defendant was straddling the white line separating the roadway from the shoulder.  Suspecting that the defendant might be driving while under the influence (but apparently not sure that they had enough), the officers followed him.  Defendant eventually pulled to the side of the road and stopped on his own initiative.  The officers pulled up behind him.  At this point, it was observed that defendant’s license plate tab was expired.  Although initially intending to conduct a consensual encounter only, at least until they were able to determine whether defendant was in fact driving while impaired, Officer Dunaj, upon noting the expired license plate tab, turned on their vehicle’s emergency lights.  In so doing, the officers conceded in later testimony that by turning on their emergency lights, the situation had been converted into a detention.  Officer Dunaj also later testified, in what the prosecutor conceded was confusing and contradictory testimony, that he activated his vehicle’s emergency lights due to the observed violation of V.C. § 21658 (requiring the driver to drive in a single lane), even though this statute only applies to roadways with two or more lanes in one direction, and even though Officer Dunaj did not list this section in his reports.  In his arrest report, Officer Dunaj instead listed V.C. § 22107 ....