Information on the crime of assault by a police officer, sometimes referred to as ‘excessive use of force’ or ‘unlawful beating by a peace officer,’ is found at California Penal Code Section 149 PC.
PC 149 Law
Per PC 149: ‘Every public officer who, under color of authority, without lawful necessity, assault or beats and person…is guilty of assault by a police officer (PC 149 Abbrev. & Summarized).
A “public officer” means any state police officer, sheriff, highway patrol officer, or other law enforcement officer that serves the public.
Under Color of Authority: The term “under color of authority” in PC 149 means that the officer assaulted a person while he or she was on the job, as opposed to when the officer is not working in his or her official capacity as an officer.
Assault or Beats: To “assault” means to unlawfully place another person in reasonable apprehension of an immediate battery. To “beat” means to apply force against another person without consent or legal justification. The terms “assault” and “beat” in the legal definition of Penal Code 149 are not synonymous. However, if an officer either assaults or beats another person without legal justification, then PC 149 applies.
Note: “Beat” is synonymous with “battery” in the PC 149 context. For clarity, the balance of this article will use the term “battery” in place of “beat.”
For example, an officer assaults a victim when she shoots at a person without legal justification. This is true even if the officer’s bullet misses the victim and the victim is otherwise not injured. So long as the victim was placed in a reasonable apprehension of an imminent battery without legal justification, then the crime of assault by an officer is committed.
Similarly, if the officer’s bullet strikes the victim, and the officer was not legally justified in her application of force against the defendant, then the officer is guilty of PC 149.
PC 149 Penalties
Wobbler Offense: PC 149 is a wobbler offense. A wobbler offense is a crime that may be charged either as a misdemeanor, or as a felony. Whether the district attorney charges the defendant with misdemeanor or felony PC 149 charges depends mostly on the defendant’s criminal history, the circumstances of the case, and more. For more information, see Wobbler Offense.
Felony PC 149: When assault or battery by a police officer is charged as a felony, the defendant may face up to three years in the county jail (“county prison”) [PC149-F].
Misdemeanor PC 149: When assault or battery by a police officer is charged as a misdemeanor, the defendant may face up to one year in the county jail [PC149-M].
Probation Sentence: A probation sentence is a period of supervision in lieu of a jail sentence. A probation sentence is available in both felony and misdemeanor PC 149 cases, but a probation sentence is never guaranteed. Whether a probation sentence is granted in any case depends on the circumstances of the case, the defendant's criminal history, the terms of any plea agreement between the defendant and the district attorney, and more.
PC 1170(h) Sentencing: If the defendant is sentenced to a felony conviction of PC 149, and she is not granted probation, then her incarceration will be served in a local county jail. This is known as a “county prison” sentence. Also, the judge may allow the defendant’s felony sentence to be “split,” or “suspended (aka “joint suspended” prison sentence).
If the judge allows the defendant’s prison sentence to be “split,” then the defendant will serve some portion of her sentence in county prison, and some portion of her sentence out of custody on work release. A “suspended” prison sentence is a sentence that is not served at all unless the defendant violates some condition of her out-of-custody release.
Fine: Per California law, the maximum fine for any conviction of PC 149 is $10,000.00. This monetary fine is in addition to any other monetary fee and/or restitution.
Other Penalties: In addition to the penalties listed above, if the defendant is arrested or convicted of PC 149, the defendant could suffer the following penalties: civil lawsuit filed against the officer and the agency for which the officer works, criminal protective orders against the defendant and in favor of the victim, loss of law enforcement employment, Internal Affairs Investigations against the officer, loss of the right to own or possess a firearm (10 year ban for misdemeanor PC 149 convictions and lifetime ban for felony PC 149 convictions), loss of military service, court fees and fines, restitution, and more.
PC 149 Defenses
Lawful Necessity: PC 149 announces the most common defense used in response to an allegation of assault or battery by a peace officer. Essentially, the defendant is authorized to use force necessary to make an arrest when the defendant has probable cause to believe that a crime has been committed by the defendant. This includes the authority arrest on a misdemeanor citation or misdemeanor warrant if the officer believes the defendant will not otherwise appear in court if she is not arrested.
Note: The amount of force necessary to make the arrest is based on a case-by-case analysis. For example, if the officer shoots to kill a person who is actively committing a murder, then the officer is probably justified in her use of force when she kills the victim. On the other hand, if the officer shoots to kill a suspect who fails to stop at a DUI checkpoint, and the officer has no other reason than the failure to stop as to why she shoots the victim, then the officer is likely guilty of PC 149 (at a minimum).
Other Defenses: Common defenses that respond to a PC 149 criminal charge, include: self-defense, defense of others, insufficient evidence to prove the defendant acted outside of a reasonable use of force under the circumstance, statute of limitations, mistake of fact, necessity, and more.
Note: An officer has the right to use self-defense the same as anyone else. In other words, if the officer is being attacked, then the defendant may use the amount of force reasonably needed to repel that attack, including the use of deadly force if necessary.
For example, if the officer is performing Field Sobriety Tests on a DUI suspect, and out of nowhere, the DUI suspect brandishes a firearm and makes criminal threats towards the officer, then the officer is likely legally entitled to use force, including deadly force in self-defense in this scenario. This is because the officer has the same rights to self-defense as anyone else in the same or similar circumstances.
17(b) Motion to Reduce Felony: A PC 17(b) motion to reduce a felony to a misdemeanor is common in cases where the defendant is charged with any “wobbler” crime, including PC 149 cases. A PC 17(b) motion, if successful, will have the defendant’s felony PC 149 charge (or conviction) reduced to a misdemeanor for almost all purposes.
Note: A PC 17(b) motion is not a true defense in the sense that the defendant is exonerated, but it does allow the case to proceed as a misdemeanor instead of a felony. If the defendant has already been convicted of PC 149, and she is granted probation, then after her probation is successfully completed, she may file a PC 17(b) motion to reduce her felony PC 149 conviction to a misdemeanor. For more information, see PC 17(b) Motion to Reduce a Felony to a Misdemeanor.
Judicial Diversion: New California law allows some defendants to enter diversion, even over the objection of the DA. This new California Judicial Diversion Law is found at PC 1001.95. Essentially, a “diverted” prosecution, if successful, may help the defendant keep his job, avoid jail, and even avoid a criminal record for most purposes. For more information, see PC 1001.95 Judicial Diversion.
If you or a loved one is charged with assault or battery by an officer (Penal Code 149), contact our criminal defense lawyers today for a free consultation. We offer aggressive defense services for anyone charged with a misdemeanor felony crime in the Counties of Riverside, Los Angeles, or San Bernadino, including the cities of Redlands, Fontana, Rialto, Ontario, Victorville, San Bernardino, Yucaipa, Rancho Cucamonga, Chino, Riverside, and more. Call today!
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