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Video shows San Diego Police SDPD choking student

On Behalf of | Nov 6, 2014 | Firm News |

I saw this story in the news.  Obviously there is more to the story than the video.  The interesting aspect of a PC 148(a)(1) resiting arrest trials is the focus that is put on the officers actions and reactions.  In most other cases it is key to see what the accused did to determine whether a crime was committed.  However, these cases (as well as San Diego DUIs) really take a look at the officer.  Did they follow procedures?  Did they properly assessed the situation to use the force allowed in the matrix?  The jury takes in the situation and determines whether the force used was reasonable.

Again, I will not speculate what happened in this case.  I will say that officer better have good reasons to use the force he did.


Cell phone video of a San Diego Police officer arresting a 15-year-old student on the Lincoln High School campus will be part of an internal investigation to ensure the officer acted appropriately.

The video shot last Friday shows freshman Eric Smith getting pulled to the ground by an officer performing a vascular neck restraint, also known as a “chokehold.”

“It’s allowed under certain circumstances” said SDPD Captain Jorge Duran, who added the move is permitted under the department’s force matrix guidelines.

The student taking the cell phone video can be heard yelling “Look at what they’re doing to this kid.”

Smith’s mother Desiree Grant saw it for the first time Sunday morning.

“I literally broke down at church just from what I seen,” said Grant.

The video doesn’t show what prompted the confrontation. Smith was drunk; he admits to ditching his second period class to drink vodka with friends.

He passed out five hours later on the football field bleachers during an in-school homecoming rally while listening to music on a classmate’s phone.

During Smith’s drunken nap, he says someone took the phone, and when the classmate accused him of stealing it, police were notified.

The SDPD officer was on campus assisting a San Diego Unified School District officer because it was a busy Halloween Friday.

The officers searched Smith’s pockets. They didn’t find the phone, but they did find a lighter which is not allowed on school grounds.

“When they went to take the lighter from him, he resisted and they began to struggle with the student,” said Duran.

Smith, suspended for two days by the district, says he can’t stop thinking about the incident and can’t sleep.

“I felt like they did too much, they didn’t have to do all that,” he said.

His mom agrees. “He is facing punishment from me. I’m not sugar coating his behavior, but the excessive force and the chokehold and the manner they conducted themselves didn’t set well with me,” said Grant. “At no time was that officer’s life threatened where he had to use excessive force.”

Adding to Grant’s frustration, she says she wasn’t notified of the incident until 5 p.m., three hours after it happened. By that time, her son had already been booked into Juvenile Hall for felony battery on an officer.

According to the arrest report, the arrest was made at 2:30 pm and the family was notified at 3:50 pm.

The San Diego Police Department says it will conduct an internal investigation into the incident and arrest after Grant filed an official complaint. The department now looks into every single citizen complaint as part of a renewed effort toward transparency.

Video can be seen here.

Hire a Proactive, affordable, and quality defense when you are facing San Diego DUI charges.  Whether you have been charged of a San Diego DUI, Poway DUI, La Mesa DUI, Santee DUI, Mission Valley DUI, Clairemont DUI, Point Loma DUI, La Jolla DUI, Carmel Valley DUI, Mira Mesa DUI, Pacific Beach DUI, Del Mar DUI, Carmel Valley DUI, Encinitas DUI, Oceanside DUI, Ocean Beach DUI, Escondido DUI, Vista DUI, San Marcos DUI, Carlsbad DUI, El Cajon DUI it is vital you need to hire an attorney who knows how to defend your rights and can determine if the government can prove their case.  Contact the Law Office of Mark Deniz now for a free case evaluation at 858-751-4384 or send an email to [email protected] 

Here is some law on the subject

148. (a) (1) Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, 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.

2656. Resisting Peace Officer, Public Officer, or EMT

The defendant is charged [in Count ______] with (resisting[,]/ [or] obstructing[,]/ [or] delaying) a (peace officer/public officer/ emergency medical technician) in the performance or attempted performance of (his/her) duties.

To prove that the defendant is guilty of this crime, the People must prove that:

1. <insert name, excluding title> was (a/an) (peace officer/public officer/emergency medical technician) lawfully performing or attempting to perform (his/her) duties as a (peace officer/public officer/emergency medical technician);

2. The defendant willfully (resisted[,]/ [or] obstructed[,]/ [or] delayed) <insert name, excluding title> in the performance or attempted performance of those duties;


3. When 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.

Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.

[A person who is employed as a police officer by <insert name of agency that employs police officer> is a peace officer.]

[A person employed by <insert name of agency that employs peace officer, e.g., “the Department of Fish and Game”> is apeace officer if <insert description of facts necessary to make employee a peace officer, e.g., “designated by the director of the agency as a peace officer”>.]

[An officer or employee of <insert name of state or local government agency that employs public officer> is a public officer.]

[An emergency medical technician is someone who holds a valid certificate as an emergency medical technician.]

[The duties of (a/an) <insert title of peace officer, public officer, or emergency medical technician> include <insert job duties>.]

<When lawful performance is an issue, give the following paragraph and Instruction 2670, Lawful Performance: Peace Officer.>

[A peace officer is not lawfully performing his or her duties if he or she is (unlawfully arresting or detaining someone/ [or] using unreasonable or excessive force in his or her duties). Instruction 2670 explains (when an arrest or detention is unlawful/ [and] when force is unreasonable or excessive).]

[The People allege that the defendant (resisted[,]/ [or] obstructed[,]/ [or] delayed) <insert name, excluding title> by doing the following: <insert description of acts when multiple acts alleged>. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed.]

[If a person intentionally goes limp, requiring an officer to drag or carry the person in order to accomplish a lawful arrest, that person may have willfully (resisted[,]/ [or] obstructed[,]/ [or] delayed) the officer if all the other requirements are met.]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the crime.

“[I]f a defendant is charged with violating section 148 and the arrest is found to be unlawful, a defendant cannot be convicted of that section.” (People v. White (1980) 101 Cal.App.3d 161, 166 [161 Cal.Rptr. 541].) An unlawful arrest includes both an arrest made without legal grounds and an arrest made with excessive force. (Id. at p. 167.) “[D]isputed facts bearing on the issue of legal cause must be submitted to the jury considering an engaged-in-duty element.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1217 [275 Cal.Rptr. 729, 800 P.2d 1159].) The court has a sua sponte duty to instruct that the defendant is not guilty of the offense charged if the arrest was unlawful. (People v. Olguin (1981) 119 Cal.App.3d 39, 46-47 [173 Cal.Rptr. 663].) On request, the court must instruct that the prosecution has the burden of proving the lawfulness of an arrest beyond a reasonable doubt. (People v. Castain (1981) 122 Cal.App.3d 138, 145 [175 Cal.Rptr. 651].)

If lawful performance is an issue, give the bracketed paragraph on lawful performance and the appropriate portions of CALCRIM No. 2670, Lawful Performance: Peace Officer. When giving the portion of CALCRIM No. 2670 on the “use of force,” the court must either delete the following sentence or specify that this sentence does not apply to a charge of violating Penal Code section 148: “If a person knows, or reasonably should know, that a peace officer is arresting or detaining him or her, the person must not use force or any weapon to resist an officer’s use of reasonable force.” (People v. White, supra, 101 Cal.App.3d at pp. 168-169 [court must clarify that Pen. Code, � 834a does not apply to charge under section 148].)

If the prosecution alleges multiple, distinct acts of resistance, the court has a sua sponte duty to instruct on unanimity. (People v. Moreno (1973) 32 Cal.App.3d Supp. 1, 9 [108 Cal.Rptr. 338].) Give the bracketed paragraph that begins with “The People allege that the defendant.”

The jury must determine whether the alleged victim is a peace officer. (People v. Brown (1988) 46 Cal.3d 432, 444-445 [250 Cal.Rptr. 604, 758 P.2d 1135].) The court may instruct the jury on the appropriate definition of “peace officer” from the statute (e.g., “a Garden Grove Regular Police Officer and a Garden Grove Reserve Police Officer are peace officers”).(Ibid.) However, the court may not instruct the jury that the alleged victim was a peace officer as a matter of law (e.g., “Officer Reed was a peace officer”). (Ibid.) If the alleged victim is a police officer, give the bracketed sentence that begins with “A person employed as a police officer.” If the alleged victim is another type of peace officer, give the bracketed sentence that begins with “A person employed by.”

The court may give the bracketed sentence that begins with “The duties of a <insert title . . . > include” on request. The court may insert a description of the alleged victim’s duties such as “the correct service of a facially valid search warrant.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1222 [275 Cal.Rptr. 729, 800 P.2d 1159].)

If the facts indicate passive resistance to arrest, give the bracketed sentence that begins with “If a person goes limp.” (In re Bacon (1966) 240 Cal.App.2d 34, 53 [49 Cal.Rptr. 322].)


Elements. Pen. Code, � 148(a); see In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329 [116 Cal.Rptr.2d 21].

General-Intent Crime. In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329 [116 Cal.Rptr.2d 21].

Knowledge Required. People v. Lopez (1986) 188 Cal.App.3d 592, 599-600 [233 Cal.Rptr. 207].

Multiple Violations Permissible If Multiple Officers. Pen. Code, � 148(e).

Peace Officer Defined. Pen. Code, � 830 et seq.

Emergency Medical Technician Defined. Health & Saf. Code, �� 1797.80-1797.84.

Delaying Officer From Performing Duties. People v. Allen (1980) 109 Cal.App.3d 981, 985-986, 987 [167 Cal.Rptr. 502].

Verbal Resistance or Obstruction. People v. Quiroga (1993) 16 Cal.App.4th 961, 968, 970-972 [20 Cal.Rptr.2d 446] [nondisclosure of identity following arrest for felony, not misdemeanor]; People v. Green (1997) 51 Cal.App.4th 1433, 1438 [59 Cal.Rptr.2d 913] [attempt to intimidate suspected victim into denying offense].

Passive Resistance to Arrest. In re Bacon (1966) 240 Cal.App.2d 34, 53 [49 Cal.Rptr. 322].

Unanimity. People v. Moreno (1973) 32 Cal.App.3d Supp. 1, 9 [108 Cal.Rptr. 338].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Governmental Authority, �� 18-19.

1 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 11, Arrest, � 11.06[3][b] (Matthew Bender).

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, � 85.02[2][a][i] (Matthew Bender).

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