When police use excessive force after the defendant has already completed the offense of resisting arrest, this does not negate the lawful performance element of the crime. Defendant stood in between a police officer and a person who was being cited by the officer for violating a municipal code. He refused repeated police requests to move away and sit down. Defendant was warned he would be arrested for delaying or obstructing the officers but ignored these warnings. When police arrested defendant he became combative. The officers responded to his acts with the use of greater force. During trial the jury asked whether the officers’ use of excessive force subsequent to the act of resisting negated the lawful performance element of the offense. The court responded “no.” Nuno was convicted of resisting arrest (Pen. Code, § 148, subd. (a)(1)). He appealed. The superior court appellate division reversed, finding the officers used excessive force. The case was certified to the Court of Appeal. Held: Reversed. A person who willfully resists, delays, or obstructs a police officer in the lawful discharge of any duty is guilty of a misdemeanor. The lawfulness of the officer’s conduct is an essential element of the offense. However, two or more isolated factual contexts could exist within one continuous chain of events. Thus, the trial court’s response to the jury question was correct.

The trial court did not err by instructing the jury that defendant could be convicted of delaying or obstructing an officer if he stepped in front of an officer who was writing a citation. Defendant argued that his act of stepping in front of an officer who was in the process of writing a citation, was a legally invalid theory for resisting an officer because he did not actually obstruct the officer. It is reversible error for the trial court to instruct the jury on a legally inadequate theory. But here, defendant actively intervened between the officer and the person being cited, during the officer’s lawful attempt to issue a citation. A violation of section 148, subdivision (a)(1) does not require that a defendant forcibly interfere with the officer’s activities. Defendant’s act distracted the officer, created a reasonable concern for officer safety, and delayed the officer in completing the citation. The evidence supported the jury’s finding.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/H044771.PDF