a peace officer ….”
However, penal code section 602(n) does not apply to “persons on the premises who are engaging in activities protected by the United States or California Constitution.” (See the California appellate case of People v. Medrano (1978) 78 Cal.App.3d 198). In the recent Los Angeles protests over the presidential election, any charges of criminal trespass potentially can be successfully defended if the protested was protesting on public property and the protest was the lawful exercise of a person’s Constitutional right to free speech and assembly.
California Resisting Arrest Attorney Can Defend Charges
Many times lawful protesters will be charged with interfering with the discharge of a peace officers duties or resisting arrest when failing to disperse from what otherwise appears to be a lawful protest. Protesters may be in need of a resisting arrest attorney. California Penal Code section 148 criminalizes resisting arrest if the prosecution can prove beyond a reasonable doubt that:
- A police and/or peace officer was lawfully performing or attempting to perform his or her duties;
- The accused willfully obstructed, delayed or resisted the police or peace officer in the attempted performance or performance of their duties;
- When the accused acted, they knew or reasonably should have known that the peace officer was performing or attempting to perform his or her duties.
To prove someone acted willfully in violating the law, the government need only prove that the accused did the act on purpose or willingly. The prosecution need not prove that person intended to hurt an officer, gain an advantage or break the law.
In the case of persons lawfully protesting, a resisting arrest attorney would defend charges which would lead to complete dismissal or charges or a finding of not guilty at any potential trial can occur when the defendant can show that the arrest or detention was unlawful. Specifically, under Penal Code section 148, a police or peace officer is not lawfully performing his or her duties if they are unlawfully detaining or arresting someone or they are using unreasonable or excessive force in performing their duties.
Generally, in order for a detention to be lawful, a peace officer must have reasonable suspicion that a crime has occurred. Further, for an arrest to be lawful, law enforcement must have probable cause that a crime has been committed. There is a long line of California and United States Supreme Court constitutional cases describing what constitutes reasonable suspicion or probable cause. It is always wise to consult a criminal defense lawyer when defending charges arising out of what appears to be lawful protests so that an unnecessary misdemeanor or even felony conviction can be avoided.
California Vandalism Charges
Sometimes certain persons can be charged with vandalism during a protest when property is damaged or destroyed. However, in order for a district attorney to get a criminal conviction for vandalism, the must prove:
- The accused maliciously damaged, defaced with graffiti or with inscribed material or destroyed real or personal property; and
- The accused was not the owner or the co-owner of the damaged property.
If the damaged personal or real property is less than $400.00 in value, the charge would be a misdemeanor where a defendant could face county jail time. If the damage exceeds $400.00, the criminal case can be charged as a felony where a defendant could be exposed to a California state prison sentence.
In order to prove a defendant acted maliciously a prosecutor must present facts showing that the accused intentionally did a wrongful act or acted with unlawful intent to annoy or injure someone. When a person is charged with vandalism after lawfully protesting, they should always defend such charges especially if the accused was acting lawfully and not maliciously as defined under the vandalism statute of California Penal Code section 594.
Facing criminal charges after exercising your right to protest, can be stressful but also important not only for your future but for the future of our citizens to object and protest Government activity or rhetoric which harms our citizens and future. As such, in order to properly defend such charges, we recommend that you immediately consult and/or retain a qualified California criminal defense lawyer. Call for a free consultation 844-210-1701