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Name: People v. Perry
Case #: F074841
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 06/18/2019

Unlawful arrest alone is not legally sufficient for conviction under Penal Code section 149, requiring reversal of defendant’s conviction on instructional grounds. Defendant Perry, a (now former) police officer, escorted Mother to Father’s house to enforce a child custody order, resulting in Father’s arrest. Father alleged that Perry used excessive force during the encounter. Perry was convicted by a jury of unnecessarily assaulting or beating another person while acting under color of authority (Pen. Code, § 149). During trial, the jury was presented with two theories upon which it could convict Perry for assault by a public officer: (1) that Perry lacked authority to use any force because the arrest itself was unlawful, and (2) that the force itself was unreasonable. On appeal, Perry challenged the first theory as legally incorrect and factually unsupported. Held: Reversed. Penal Code section 149 criminalizes an officer’s use of force “without lawful necessity,” meaning “more force than was necessary under the circumstances.” An unlawful arrest or detention alone is not sufficient for a conviction under section 149. (People v. Lewelling (2017) 16 Cal.App.5th 276.) Here, the jury was properly instructed that it was required to find Perry acted without legal necessity, but was also instructed on “lawful arrest” and encouraged to decide if Perry’s arrest of Father was lawful. This was error because the instructions improperly suggested that if the arrest was unlawful, use of force during that arrest was “without legal necessity.” Reversal was required because the record revealed no basis to conclude the jury necessarily rested its verdict on a valid theory of guilt. However, retrial is permitted because substantial evidence exists to support a conviction on a valid theory (i.e. that Perry used more force than was reasonably necessary.)

The full opinion is available on the court’s website here: