Friday, August 17, 2012

California Penal Code section 69


Case Name: People v.   Nishi , District: 1 DCA , Division: 1 , Case #: A129724

Opinion Date: 7/13/2012  , DAR #: 9687

Case   Holding:

A warrantless search of a campsite does not violate the   Fourth Amendment when a person is not legitimately on the premises and is aware   that occupying the premises without consent is illegal. In 2010,   appellant sent e-mails to the Department of Defense complaining that Department   of Fish and Game personnel had unlawfully shot protected mountain lions and that   he was armed and would fire on all sheriffs and Fish and Game personnel. The   e-mail was forwarded to local agencies who advised their staff to take   precautions. A deputy sheriff located appellant on a preserve and arrested him.   Appellant's campsite was searched and shotgun shells were located and seized   from a tarp surrounding the tent. The warrantless search did not violate the   Fourth Amendment. Appellant had no reasonable expectation of privacy because he   was not lawfully or legitimately on the premises. Camping on the preserve was   prohibited without a permit and appellant did not have one. Because he   previously had been cited for illegal camping and evicted from other campsites   in the preserve, he was conscious of the illegality. Appellant was not in a   position to legitimately consider the campsite as a place society recognized as   private to him.

Substantial evidence supports a Penal Code   section 69 (resisting an executive officer) conviction when a person e-mails a   threatening message with the intent to deter officials from performing their duties   and it may be inferred that he intended that the message would be conveyed to   the intended targets. Appellant was convicted of section 69, with the   conduct in question being the e-mail he sent to the Department of Defense. The   appellate court, observing that appellant had not raised a First Amendment   argument, evaluated the conviction under a substantial evidence test, and found   that it was supported by the evidence. Penal Code section 69 sets forth two ways   the offense can be committed; the first is by threats to prevent an officer from   performing a duty imposed by law, also known as attempting to deter, and the   second is by resisting an officer by force or violence in the performance of his   duty. Here, the case against appellant was based on the first form of violation   of section 69. The evidence demonstrated that appellant intended to deter   officials from patrolling or otherwise performing duties in the preserve by   threatening to "fire on" them if they appeared. Appellant essentially   acknowledged this when he told a sheriff's deputy that the e-mail "worked" by   keeping officers off the preserve. Section 69 does not require that the threat   be transmitted separately or directly to the intended victim or that defendant   have the present ability to carry it out, only that it deterred performance of   a duty. The inference may be drawn that appellant intended that the threatening   message would be conveyed from the Department of Defense to the intended law   enforcement targets.

If you are arrested for allegedly violating California Penal Code section 69, you need an attorney who understands your situation, and the recent caselaw behind it. The Law Office of George Derieg has serious experience litigating Penal Code section 69 cases.
Contact Attorney George Derieg for all your criminal litigation concerns, particularly Cal Penal Code section 69, resisting an executive officer.
George Derieg
510-355-2747

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