PC 148(b): Removing a Police Officer's Weapon While Resisting Arrest: Law, Sentence, & Defense
Information on the crime of removing an officer’s weapon while resisting arrest is found at California penal code section 148(b) PC. When the weapon that is taken from an officer is the officer’s firearm, then the crime is charged under California penal code section 148(c).
This page is dedicated to a brief overview of the law, the punishments, and the defenses that are related to PC 148(b) [Remove Officer’s Weapon While Resisting Arrest]. For further information, including information on PC 148(c), please contact our criminal defense lawyers today for a free consultation 909-913-3138.
PC 148(b) Law
Every person who, during the commission of… resisting arrest, removes or takes any weapon, other than a firearm, from the person of, or immediate presence of, a public officer or peace officer… is guilty of removing an officer’s weapon while resisting arrest (PC 148(b) Abbrev.).
To prove the crime of PC 148(b), the district attorney must prove:
The police officer was lawfully performing, or attempting to perform, his duties as a police officer;
The defendant willfully resisted, obstructed, or delayed arrest;
The defendant knew or should have known that the police officer was, in fact, a police officer, who was performing as a police officer, or attempting to perform as a police officer;
While the defendant resisted, obstructed, or delayed the police officer, the defendant removed a weapon from the police officer;
PC 148(b) Punishment
Wobbler: PC 148(b) is classified as a “wobbler” offense in California. A “wobbler” offense is any criminal charge that may be classified as a felony, or alternatively as a misdemeanor. In other words, when the district attorney chooses to file criminal charges of removing a police officer’s weapon while resisting arrest, the district attorney may file the criminal charge as a felony, or alternatively as a misdemeanor.
Note: Whether the district attorney files misdemeanor or felony criminal charges of PC 148(b) against the defendant depends on many factors, including the presence of any mitigating or aggravating circumstances in the case, the defendant’s criminal history, and more.
Felony: When the defendant is charged with felony PC 148(b) charges, then the defendant may face up to three (3) years in the county jail (maximum sentence). A felony probation sentence, with or without some actual jail, might be possible in a felony PC 148(b) case (See “Probation Sentence” below).
Misdemeanor: When the defendant is charged with misdemeanor PC 148(b) charges, then the defendant may face up to one (1) year in the county jail. A misdemeanor probation sentence, with or without some actual jail, might be possible after a conviction for misdemeanor PC 148(b) (See “Probation Sentence” below).
Suspended Sentence: A “suspended” jail sentence is a jail sentence that is not actually served unless the defendant violates some condition of his or her out-of-custody release. Suspended sentences are allowed in PC 148(b) cases, but a suspended sentence is not guaranteed. Whether or not the defendant is allowed to serve a suspended sentence after a conviction for removing a police officer’s weapon while resisting arrest depends on many factors.
Note: A “split” jail sentence may also be allowed after a felony conviction of PC148(b)-F. For more information on suspended or split jail sentences, please see Penal Code 1170(h) Sentencing.
Probation Sentence: A probation sentence is a period of supervision, as opposed to a period of incarceration. A probation sentence is allowed in both felony and misdemeanor PC 148(b) cases; however, a probation sentence is not guaranteed after a conviction for removing a police officer’s weapon while resisting arrest. Whether or not a probation sentence is allowed in any PC 148(b) case depends on the circumstances of the case and the defendant’s criminal history.
Note: A probation sentence can include a period of actual jail, but the jail sentence that is related to a probation sentence may usually, but not always, be served alternatively on work release or house arrest. Also, a felony probation sentence, also called “formal probation,” is supervised by a probation officer, and a misdemeanor probation sentence, is usually, but not always, monitored by the court (criminal court clerk).
Work Release / House Arrest: As stated, a probation sentence is a period of supervision instead of an actual jail sentence (usually). However, the defendant is usually ordered to fulfill certain duties, or conditions, or probation when he or she is supervised. These conditions may include a period of manual labor, such as picking up trash around local jails (work release), or confinement to the defendant’s home (house arrest). For more information, see Work Release & House Arrest.
Firearm Prohibition: The defendant who is convicted of removing a police officer’s weapon while resisting arrest will suffer a prohibition against owning or possessing firearms as part of his or her punishment. A misdemeanor conviction of PC 148(b) usually carries a ten (10) year ban on owning or possession a firearm, and a felony conviction of PC 148(b) usually carries a lifetime ban on owning or possessing a firearm (subject to the possibility of restoring firearm rights).
Other Penalties: In addition the penalties listed above, if the defendant is convicted of any PC 148(b) charge, the defendant may suffer the following direct and indirect consequences: loss of immigration status, deportation from the U.S. (Non-US citizens), loss of a professional license, loss of military service benefits, civil lawsuits, criminal protective orders, loss of school scholarships, restitution, and more.
PC 148(b) Defenses
No two PC 148(b) cases are the same; therefore, no two defenses will be the same. With that in mind, the most common defenses to a criminal charge of removing a police officer’s weapon while resisting arrest, including: statute of limitations, self-defense (against the officer), lack of intent to remove officer’s weapon (accident), insanity, coerced confession, and more.
Reclassification of Offense: In some felony cases of PC 148(b), it might be possible to have the judge, or district attorney, reclassify the crime as a misdemeanor. This is not a true defense in the sense that the defendant is completely exonerated of the criminal charges, but it is a good option for cases where the district attorney’s evidence is strong in favor of guilt.
Note: Reclassification of a crime from a felony to a misdemeanor is common, but not guaranteed, in plea bargaining between the defendant and the district attorney. For information on reclassification of a wobbler offense from a felony to a misdemeanor, see PC 17(b).
Judicial Diversion: “Judicial Diversion” is a criminal procedure whereby the defendant pleads guilty to qualifying crime in exchange for the court’s promise to dismiss the criminal charges upon successful probation-like sentencing (diversion terms). Judicial diversion is allowed in misdemeanor PC 148(b) cases, but diversion is not guaranteed. Whether or not the defendant is allowed to enter judicial diversion depends on many factors, including the defendant’s criminal history, the egregiousness of the facts, and more. For more information, see Judicial Diversion, or PC 1001.95.
Post-Conviction Relief: If the defendant has suffered a criminal conviction for removing a police officer’s weapon while resisting arrest, he or she may have certain post-conviction relief options, including but not limited to, the following: withdraw of a plea, motion to set aside the conviction (expungement), certificate of rehabilitation, appeal the criminal conviction, motion the court to terminate probation early, and more.
Note: If the defendant was arrested for PC 148(b), but the district attorney declined to file criminal charges against the defendant (for several reasons, including lack of sufficient evidence), then the defendant may request that his or her arrest for PC 148(b) be removed from public record and law enforcement’s arrest records. For more information, see Seal and Destroy a Criminal Arrest Record.
To learn more about the criminal charge of removing a police officer’s weapon while resisting arrest, or PC 148(b), or PC 148(c) [Removal of a firearm from a police officer while resisting arrest, contact our criminal defense lawyers for a free consultation. Our criminal defense lawyers are always available to discuss you defense options and rights. We proudly serve the Inland Empire, including the cities of Rancho Cucamonga, Ontario, Victorville, Redlands, San Bernardino, Riverside, Moreno Valley, Fontana, Rialto, Yucaipa, and more. Call today!
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