ELEMENTS OF THE OFFENSE

To prove you guilty of PC 69, Resisting or Threatening an Executive Officer, the DA must prove each of the following elements beyond a reasonable doubt: 

1. You willfully and unlawfully used violence or a threat of violence to try to prevent or deter an executive officer from performing his or her lawful duty;

 

AND

 

2. When you acted, you intended to prevent or deter the officer from performing her or lawful duty.

UNDERSTANDING THE ELEMENTS

What does “willfully” mean?

Someone commits an act “willfully” when he or she does it willingly or on purpose. 

Who or what is an “executive officer”?

An executive officer is a government official -- generally, a police officer -- who may use his or her own discretion in performing his or her job duties. 

What if the officer was off-duty at the time?

The executive officer does not need to be performing his or her job duties at the time the threat is communicated. The officer could be off-duty, but as long as you had reason to believe he or she was an officer at the time of the threat, that will be enough to prove that element. However, if you had no idea the person you threatened was an officer (for example, the officer was off-duty and in street clothes), then that could be a workable defense.

What counts as a threat?

It depends. A threat may be oral or written and may be implied by a pattern of conduct or a combination of statements and conduct. This could be an issue. For example, say the threat was simply a hand gesture. Well, depending on what you did (say, for example, you made a slit your throat hand gesture), that could be enough to convict you even if you didn’t say anything at the time.

You do not have to communicate the threat directly. Having someone else do the threat on your behalf is not a loophole. The DA must, however, prove that you intended your statement to be taken as a threat.

What if you didn’t really intend for your threat to be taken seriously?

The DA has to prove you intended your statement to be understood as a threat. However, they don’t have to prove you actually intended to carry out the threat. This is a critical element and often the most effective element for your lawyer to focus your defense on. For example, it is very common for people, in the heat of the moment, to mouth off at officers. There’s a big difference between simply blowing off some steam and actually threatening an officer in a way that can reasonably be interpreted as a true threat. These cases are very contextual. Depending on the circumstances, you very well may have a strong argument that there’s not enough to prove your intent.

PENAL CODE § 69. RESISTING OR THREATENING AN OFFICER

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