In People v. Serna,[1] a California Court of Appeal held that Penal Code section 148(a)(1) does not require that a defendant have actual knowledge they are resisting, delaying, or obstructing a police officer. It is sufficient for trier of fact to find the defendant knew or reasonably should have known that the person they resisted was a peace officer.
Background
In August 2021, California Highway Patrol Officer Holguin was on duty providing security and protection for Caltrans as they performed weed abatement near the freeway at approximately 8:30 a.m. The officer was in a marked patrol vehicle and in uniform. Prospero Guadalupe Serna was walking within the traffic lanes. The officer encountered Serna and used his vehicle to block traffic so Serna would not be struck by oncoming traffic. The officer asked Serna to move over to the right shoulder and Serna initially complied. Serna appeared agitated and had blood on his hands. When Serna started walking back into the lanes, the officer exited his patrol car, placed himself in front of Serna, and ordered Serna to stop while placing his hand on Serna’s chest. Serna pushed the officer back. The officer grabbed his Taser and elevated his demeanor. Serna backed off but continued walking along the shoulder. The officer repeated this process several times, with him following Serna in his vehicle, exiting the vehicle, and trying to keep Serna out of the lanes. However, Serna pushed the officer several more times throughout the encounter.
Serna ran back into the traffic lanes. After Serna refused the officer’s orders to stop, the officer deployed his Taser. The officer jumped on Serna, but Serna fought through the Taser cycle. The officer deployed his Taser once more with little effect. The officer was finally able to pin Serna down with the help of a second officer. However, Serna continued to resist, and the officers were not able to secure handcuffs on him. After several minutes of struggling, four San Bernardino police officers arrived on scene to assist with Serna’s detention. Serna was finally placed in handcuffs. After Officer Holguin informed Serna that he was being detained for obstructing, Serna told him he wasn’t the police. In response, the officer explained to him that California Highway Patrol Officers are the police. Officer Holguin later testified that Serna did not attempt to run into traffic when he first drew his Taser, indicating he understood the officer’s commands.
A jury found Serna guilty of two misdemeanors: knowingly resisting arrest (Penal Code section 69), and willfully resisting, delaying, or obstructing a peace officer (Penal Code section 148(a)(1)). On appeal to the Appellate Division of the Superior Court of San Bernardino County, Serna claimed his attorney rendered ineffective assistance of counsel by not seeking to admit Serna’s mental health records to negate the knowledge requirements for the two offenses and by failing to request the trial court instruct the jury that evidence of a mental defect was relevant to its determination of whether Serna formed the requisite intent for the offenses. Because evidence of mental disease, defect, or disorder is only admissible to showfailure to form a specific intent,[2] and case law had established Sections 69 and 148(a)(1) are general intent crimes, the appellate division held Serna’s attorney did not provide deficient representation by not seeking to introduce mental health records and not requesting the instruction.
The appellate division recognized a split in authority on the question of whether Section 148(a)(1) includes an element of the perpetrator’s actual knowledge that the person they resisted, delayed, or obstructed was a peace officer: In re A.L. (6th Dist. 2019) 38 Cal.App.5th 15, the court held that Section 148(a)(1) does include an actual knowledge requirement; however, People v. Mackreth (6th Dist. 2020) 58 Cal.App.5th 317, the court disagreed with A.L., and held that Section 148(a)(1) does not require actual knowledge. The appellate division granted Serna’s request to certify his appeal for transfer to the Fourth District Court of Appeal, and limited the issue to be decided as follows: “Does Penal Code section 148, subdivision (a)(1) require that a person have actual knowledge that the person being resisted is an executive officer?” The Fourth District granted the transfer, deeming it necessary to settle an important question of law.
Discussion
Relying heavily on In re A.L., Serna argued on appeal that, as a matter of statutory interpretation, Penal Code section 148(a)(1) includes the element that a person knows they are resisting, delaying, or obstructing a peace officer. Because the jury was not instructed on the element of actual knowledge, Serna contended the judgment must be reversed. Following the contrary holding in Mackreth, the People argued that the jury was properly instructed a defendant violates Section 148(a)(1) if he knew or should have known the person being resisted was a police officer.
Section 148(a)(1) provides: “Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician…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.” The Fourth District observed that on its face, Section 148(a)(1) includes no knowledge element whatsoever.
The Fourth District explained that the key term in Section 148(a)(1) for the instant case was “willfully.” “Willfully” is usually synonymous with “intentionally.” (In re Rolando S. (2011) 197 Cal.App.4th 936, 941; see People v. Davis (2005) 126 Cal.App.4th 1416, 1435.) The California Supreme Court has explained that “the terms ‘willful’ or ‘willfully,’” when applied in a penal statute, require only that the illegal act or omission occur “intentionally,” without regard to motive or ignorance of the act’s prohibited character.’ [Citation.] ‘Willfully…“‘implies that the person knows what he is doing, intends to do what he is doing and is a free agent.’ [Citation.]”’ [Citations.] The use of the word ‘willfully’ in a penal statute usually defines a general criminal intent, absent other statutory language that requires ‘an intent to do a further act or achieve a future consequence.’” (People v. Atkins (2001) 25 Cal.4th 76, 85.)
The Fourth District noted that consistent with the analysis in Atkins, courts have held Section 148(a)(1) is a general intent crime, proscribing only the particular act (resist, delay, obstruct) without reference to an intent to do a further act or achieve a future consequence.[3] In People v. Lopez (5th Dist. 1986) 188 Cal.App.3d 592, the defendant challenged his conviction under Section 148 claiming his jury was not instructed the offense included the element that he knew he was fleeing from a police officer and not someone else. Lopez held that Section 148 should be read to include a knowledge requirement as “that of actual knowledge or what a reasonable person should have known. This is an objective standard for measuring the knowledge of the actor.” (Lopez, at p. 599, italics added.)[4]
The Fourth District noted that until recently, California state courts, including the Supreme Court, have unanimously included the holding from Lopez when stating the elements of the Section 148(a)(1) offense. “The legal elements of that crime are as follows: ‘“(1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) 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.”’” (Yount v. City of Sacramento (2008) 43 Cal.4th 885, 895, italics added, quoting In re Muhammed C., 95 Cal.App.4th 1325, 1329 (6th Dist. 2002).)
The Fourth District agreed with the analysis of Section 148(a)(1) in Mackreth, which applied the rules of statutory construction and reviewed the statute’s legislative history. Mackreth held Section 148(a)(1) “does not require actual knowledge,” “respectfully disagree[ed] with and declin[ed] to follow A.L.,” and “reject[ed] Serna’s claim that the trial court erred by instructing the jury with CALCRIM No. 2656 because the instruction did not require actual knowledge.” (Mackreth, supra, 58 Cal.App.5th at p. 334.)
The Fourth District found the analysis in Mackreth to be persuasive, declined to follow A.L., and concluded Section 148(a)(1) does not require the defendant knew they resisted, delayed, or obstructed a police officer. Moreover, the Court noted that the near-universal adoption of the knowledge requirement from Lopez, supra, 188 Cal.App.3d 592, including the (at least implied) imprimatur given the rule by the California Supreme Court in Yount v. City of Sacramento, supra, 43 Cal.4th at page 895, strongly counseled against adopting the contrary holding in A.L. The Court stated, “It is enough for a jury or trier of fact to find the defendant knew or reasonably should have known the person they resisted was a police officer.” Therefore, the Fourth District Court of Appeal affirmed.
HOW THIS AFFECTS YOUR AGENCY
Agencies may observe that almost all state courts, like the Fourth District here, have consistently found that as to Penal Code section 148(a)(1), it is sufficient for a jury or trier of fact to find the defendant knew or reasonably should have known the person they resisted was a police officer. Moreover, the California Supreme Court implicitly gave this rule its endorsement in stating the elements of the Section 148(a)(1) offense. See Yount v. City of Sacramento (2008) 43 Cal.4th 885, 895. As a result of this ruling, it should be less burdensome to prosecute individuals for delaying, resisting or obstructing peace officers in the course of their duties.
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at jrt@jones-mayer.com
Information on www.jones-mayer.com is for general use and is not legal advice. The transmission of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.
[1] 109 Cal. App. 5th 563 (4th Dist. 2025).
[2] See Penal Code section 28(a).
[3] See People v. Christopher, 137 Cal.App.4th 418, 431 (4th Dist. 2006), quoting In re Muhammed C., 95 Cal.App.4th 1325, 1329 (6th Dist. 2002).
[4] The Fourth District noted that “[t]he holding of Lopez has been incorporated into the pattern jury instruction for Section 148(a).” (Atkins, supra, 31 Cal.App.5th at p. 978.) CALCRIM No. 2656 requires the jury to find that, “[w]hen the defendant acted, (he/she) knew, or reasonably should have known, that <insert name, excluding title> was (a/an) (peace officer/public officer/emergency medical technician) performing or attempting to perform (his/her) duties.” (Italics added.) The trial court in this case instructed the jury with CALCRIM No. 2656 on the elements for Section 148(a)(1), including the requirement that defendant “knew, or reasonably should have known” he resisted, delayed, or obstructed a police officer.