Is Resisting Arrest a Felony in California? Penal Code 148 Explained
The short answer: resisting arrest under Penal Code section 148, subdivision (a)(1), is a misdemeanor in California, punishable by up to one year in county jail and a fine of up to $1,000. It becomes a felony only when the conduct fits a different statute, such as resisting an executive officer by force or threats under Penal Code section 69, battery on a peace officer with injury under Penal Code section 243, subdivision (c)(2), or taking an officer's weapon under section 148, subdivisions (b) through (d). The charge is far more defensible than most people assume, because the prosecutor must prove the officer was acting lawfully at the moment you resisted.
Why this charge deserves attention. Section 148 is one of the most frequently filed misdemeanors in Southern California, and it is often the only charge left after the original reason for the stop falls apart. It is also a charge that officers add when a person argues, films, walks away, or goes limp. Gramling Law Group defends these cases at the San Bernardino Justice Center, the Fontana and Rancho Cucamonga courthouses, the Riverside Hall of Justice, and the Los Angeles County courthouses in downtown Los Angeles, Pomona, and Long Beach, and this guide explains what the prosecutor has to prove and where the cases break down.
What Does Penal Code 148 Prohibit?
The text is broad. Section 148, subdivision (a)(1), makes it a crime to willfully resist, delay, or obstruct any public officer, peace officer, or emergency medical technician in the discharge or attempted discharge of any duty of the office. "Resist" is the word people know, but "delay" and "obstruct" cover much more: giving a false name, running from a detention, refusing to get out of a car during a lawful stop, physically interfering with the arrest of someone else, or stiffening up so officers cannot apply handcuffs. Refusing to identify yourself during a lawful detention has been treated as obstruction in some cases and not in others, and the distinction turns on the facts.
Recording the police is not a crime. Section 148, subdivision (g), states that photographing or recording an officer in a public place, or in a place where the person has a right to be, does not by itself constitute resisting, delaying, or obstructing. If the only thing you did was film, the charge fails. If you filmed from inside the officer's workspace or refused a lawful order to step back while filming, the analysis changes.
What Must the Prosecutor Prove for Resisting Arrest?
Three elements beyond a reasonable doubt. The jury instruction, CALCRIM 2656, breaks section 148, subdivision (a)(1), into three parts. (1) The person you resisted, delayed, or obstructed was a peace officer, public officer, or EMT who was lawfully performing or attempting to perform his or her duties at the time. (2) You willfully resisted, obstructed, or delayed that officer in the performance of those duties. (3) When you acted, you knew, or reasonably should have known, that the person was an officer performing those duties. The prosecutor must prove each element beyond a reasonable doubt, and the first element is where most of the litigation happens.
Lawful performance is an element, not an afterthought. An officer is not lawfully performing duties while making an unlawful arrest or detention or while using unreasonable or excessive force. The California Supreme Court confirmed in In re Manuel G. (1997) 16 Cal.4th 805 that the lawfulness of the officer's conduct is part of what the prosecution must prove in a section 69 case, and the same rule applies to section 148. If the detention that started the encounter lacked reasonable suspicion, or the arrest lacked probable cause, the resisting charge collapses along with it. That is why a 1538.5 motion and a challenge to the stop matter even in a case with no physical evidence to suppress. Can Police Search Your Car in California explains how those stop-and-detention rules work.
Willfulness means on purpose, not with bad intent. The prosecutor does not have to prove that you intended to break the law or to harm the officer, only that you acted deliberately. Falling because you were intoxicated, failing to hear a command in a chaotic scene, or flinching from pain during handcuffing are not willful acts, and the defense should develop those facts through body camera footage and witnesses.
Knowledge of the officer's status. Plainclothes officers, unmarked cars, and encounters that begin with someone grabbing you from behind create real doubt on the third element. The question is what a reasonable person in your position would have understood, so lighting, uniforms, verbal identification, and the sequence of events all matter.
When Resisting Arrest Becomes a Felony
Penal Code section 69. Resisting an executive officer by force or violence, or attempting by threats or violence to deter an officer from performing a duty, is a wobbler under section 69. The District Attorney can file it as a felony carrying 16 months, two years, or three years, or as a misdemeanor. Prosecutors in San Bernardino and Riverside County commonly file section 69 when there was a punch, a kick, a shove, or a threat, and they use the misdemeanor section 148 count as the fallback. Our guide on reducing a felony to a misdemeanor under Penal Code 17(b) explains how a section 69 conviction can later be reduced.
Battery on a peace officer. Any touching of an officer becomes battery under section 243, subdivision (b), a misdemeanor, and a wobbler under subdivision (c)(2) if it causes an injury requiring medical treatment. Spitting, grabbing an arm, and pushing a hand away have all supported these charges. Is Assault and Battery a Felony in California walks through the battery elements.
Taking or attempting to take an officer's weapon. Section 148, subdivisions (b), (c), and (d), separately punish removing or attempting to remove a baton, a firearm, or another weapon from an officer during resistance, and subdivision (d) is a wobbler with felony exposure. Evading an officer in a vehicle is charged under Vehicle Code section 2800.1 or, with reckless driving, Vehicle Code section 2800.2, and giving a false name to an officer is charged under Penal Code section 148.9.
What Are the Defenses to a Resisting Arrest Charge?
The arrest or detention was unlawful. This is the first defense to examine. If the officer stopped your car without reasonable suspicion, detained you at a party without a lawful basis, or entered your home without a warrant or exigency, the officer was not lawfully performing duties, and what you did in response is not a crime under section 148. The defense typically files a motion to suppress, subpoenas the dispatch records and body camera footage, and cross-examines the officer on the basis for the stop at the preliminary hearing or a pretrial evidentiary hearing.
Excessive force. An officer who uses unreasonable force is not lawfully performing duties, and a person may use reasonable force to defend against it. People v. Curtis (1969) 70 Cal.2d 347 held that while Penal Code section 834a bars forcible resistance to an arrest the person believes is unlawful, it does not strip the right to defend against excessive force. Since 2020, Penal Code section 835a has required that deadly force be used only when necessary in defense of human life, and it restates the objective reasonableness standard for other force. Body camera footage, medical records of your injuries, and the officer's use-of-force report are the core of this defense. In Yount v. City of Sacramento (2008) 43 Cal.4th 885, the Supreme Court explained that a section 148 conviction and a claim of excessive force can coexist when the force came after the resistance ended, which is a reminder that the timeline of each second of the encounter matters.
You did not know the person was an officer. Undercover operations, off-duty officers, and encounters that begin with force before any identification give rise to this defense. The question is whether a reasonable person would have known, and the officer's own report often supplies the answer when it admits that identification came late.
The conduct was not resisting, delaying, or obstructing. Arguing with an officer, criticizing the officer, asking why you are being stopped, or declining to consent to a search is protected conduct, not obstruction. In People v. Wetzel (1974) 11 Cal.3d 104, the Supreme Court reversed a section 148 conviction where the defendant stood in her doorway and refused to let officers enter without a warrant, because refusing consent is not obstruction. The line between a verbal refusal and physical interference is where many of these cases are won.
Officer credibility. Section 148 is frequently charged in encounters that started badly for the officer, and the report is written after the fact. Inconsistencies between the report, the body camera, the dispatch log, and civilian witnesses are the defense's most reliable tool. A Pitchess motion under Evidence Code section 1043 can obtain prior complaints of excessive force or dishonesty from the officer's personnel file when the defense shows good cause. What Makes a Criminal Case Weak in California discusses how these gaps are used.
What Are the Penalties for Resisting Arrest in California?
Misdemeanor section 148, subdivision (a)(1). Up to one year in county jail, a fine of up to $1,000, or both. In practice, a first offense in the Inland Empire or Los Angeles County is usually resolved with probation, a fine, community service, or a short program, and judges in San Bernardino and Riverside County often consider misdemeanor diversion under Penal Code section 1001.95 because section 148 is not on the exclusion list. Our guide on misdemeanor diversion explains how to ask for it.
Felony exposure. Section 69 carries 16 months, two years, or three years in county jail under Penal Code section 1170, subdivision (h), when filed as a felony. Battery on an officer with injury under section 243, subdivision (c)(2), carries 16 months, two years, or three years as a felony. Neither is a strike by itself, but a great bodily injury finding changes that analysis.
Collateral consequences. A misdemeanor section 148 conviction carries no state firearm prohibition by itself, although taking an officer's firearm under subdivision (d) does, and a felony conviction under section 69 carries the lifetime ban under Penal Code section 29800. Immigration consequences for a simple section 148 conviction are generally limited, but section 69 and battery on an officer raise crime of violence and moral turpitude questions that Penal Code section 1016.3 requires counsel to address before a plea. Security guards, nurses, teachers, and other licensed professionals should expect a licensing board inquiry, and any conviction that suggests a problem with authority is used in custody litigation, which our child custody page addresses.
After the case. A section 148 conviction can usually be dismissed under Penal Code section 1203.4 after probation, and a case resolved by diversion is dismissed and the arrest sealed. See How to Expunge a Criminal Record in California.
How Resisting Arrest Cases Move Through Southern California Courts
Where the case is heard. A misdemeanor section 148 case from San Bernardino, Rialto, Colton, Highland, or Redlands is generally heard at the San Bernardino Justice Center, while Fontana cases go to the Fontana courthouse and Ontario, Rancho Cucamonga, and Chino cases go to the Rancho Cucamonga courthouse. Riverside, Moreno Valley, and Corona cases go to the Riverside Hall of Justice. Los Angeles cases go to the Clara Shortridge Foltz Criminal Justice Center downtown or to the regional courthouses in Van Nuys, Pomona, Long Beach, Torrance, and Compton, and Orange County cases go to the Central Justice Center in Santa Ana or the West Justice Center in Westminster. Confirm the courthouse on your citation and the court's website. The San Bernardino, Fontana, Rancho Cucamonga, Pomona, and Los Angeles criminal defense pages describe each courthouse.
Arraignment and the first offer. Most section 148 defendants are cited and released or bail out, and the first appearance is an arraignment where counsel can appear for the client under Penal Code section 977. The initial offer often includes a plea to section 148 with probation, and it improves once the defense obtains the body camera footage and dispatch records, which the prosecution must produce under Penal Code section 1054.1. Should You Take a Plea Deal in California discusses when to hold out.
What the prosecutor sees. Filing deputies look at the original reason for the contact, whether the officer was injured, whether the defendant was intoxicated, and whether the body camera supports the report. Cases where the underlying charge was rejected and only the section 148 count survives are treated with more skepticism, and a well-prepared defense presentation before filing can end the case. What Prosecutors Look At Before Filing Criminal Charges and How Prosecutors Build Criminal Cases describe that review.
Common mistakes. Explaining yourself to the officer after the arrest produces admissions that the prosecutor will use; read Understanding Your Rights When Questioned by Police. Posting the video of the encounter online before your lawyer has reviewed it hands the prosecutor your best evidence with your commentary attached. Missing the court date turns a defensible misdemeanor into a bench warrant, as explained in What Happens If You Miss Court in California. And delaying the preservation of body camera and surveillance footage lets the best evidence disappear on a retention schedule.
Frequently Asked Questions
Is resisting arrest a felony or a misdemeanor in California?
Resisting under Penal Code section 148, subdivision (a)(1), is a misdemeanor. It becomes a felony only when charged under a different statute, such as Penal Code section 69 for resisting an executive officer with force or threats, Penal Code section 243, subdivision (c)(2), for battery on an officer with injury, or Penal Code section 148, subdivision (d), for taking an officer's firearm. Those are wobblers, so the prosecutor chooses whether to file a felony.
Can I be convicted of resisting arrest if the arrest was illegal?
No. Lawful performance of the officer's duties is an element the prosecutor must prove. If the detention lacked reasonable suspicion or the arrest lacked probable cause, the officer was not lawfully performing duties, and a conviction under Penal Code section 148 cannot stand. The defense raises the issue through a suppression motion, cross-examination, and a jury instruction on lawful performance.
Is it resisting arrest to refuse to answer police questions?
Generally no. You have a constitutional right to remain silent, and declining to answer questions is not obstruction. Refusing to identify yourself during a lawful detention, giving a false name, or physically interfering with the officer are different, and the false name is charged separately under Penal Code section 148.9. Talk to a lawyer before assuming your silence was the basis for the charge.
Can I go to jail for a first resisting arrest charge?
It is possible but uncommon on a first misdemeanor. Penal Code section 148 authorizes up to one year in county jail, but a first offense with no injury to the officer is usually resolved with probation, a fine, or diversion under Penal Code section 1001.95. Felony resisting under Penal Code section 69 carries real custody exposure and should be defended aggressively from the start.
Does a resisting arrest conviction affect gun rights?
A misdemeanor under Penal Code section 148, subdivision (a)(1), does not by itself trigger a state firearm ban. A felony conviction under Penal Code section 69 or any other felony carries a lifetime ban under Penal Code section 29800, and taking an officer's firearm under section 148, subdivision (d), is on the ten-year misdemeanor list in Penal Code section 29805. Confirm the current lists before relying on them.
Can a resisting arrest charge be dismissed or diverted?
Often, yes. Resisting under Penal Code section 148 is not on the exclusion list for misdemeanor diversion under Penal Code section 1001.95, so judges in Riverside, San Bernardino, and Los Angeles County can grant diversion over the prosecutor's objection when the facts and history support it. Completing diversion results in dismissal and sealing of the arrest. Cases with unlawful detention or excessive force issues are also candidates for outright dismissal.
Gramling Law Group defends resisting arrest, battery on an officer, and related charges at the San Bernardino Justice Center, the Fontana and Rancho Cucamonga courthouses, the Riverside Hall of Justice, the Clara Shortridge Foltz Criminal Justice Center, and the criminal courts of the Inland Empire, Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options so that clients know the cost before the first court date. Call (909) 654-4575 or contact us through this website for a consultation.
This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
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