Filed 7/30/19
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SIXTH APPELLATE DISTRICT

In re A.L., a Person Coming Under the              H045802
Juvenile Court Law.                               (Santa Clara County
                                                   Super. Ct. No. 17-JV-42477A)


THE PEOPLE,

        Plaintiff and Respondent,

        v.

A.L.,

        Defendant and Appellant.


        A.L. was declared a ward of the juvenile court after it found she committed three
offenses: battery on a peace officer, resisting an officer, and resisting an officer with
force. A.L. contends the court erred by not considering her state of mind at the time she
resisted. Two of the offenses––resisting an officer (Pen. Code, § 148, subd. (a)(1)) and
forcefully resisting an officer (Pen. Code, § 69)––require actual knowledge that an officer
is engaged in the performance of duty. Since the record does not unambiguously show
the juvenile court misapplied the law, we must affirm the wardship order.
                                    I.   BACKGROUND
        Sixteen-year-old A.L. was in a fight with her sister violent enough for police to be
called. Several officers responded in full uniform and marked patrol cars. When they
arrived, A.L.’s sister was on the ground covering her face and A.L. appeared to be
kicking her. A.L. walked to one of the officers and said, “Take her to the fucking jail.
Look, she bit me,” while displaying a bite mark on her arm. She then started back toward
her sister, who was still on the ground. The officer grabbed A.L.’s arm and told her, “I
saw you kick her when she was down … [h]old on. Hold on. … Relax.” But she pulled
away, so a second officer took hold of her other arm. She screamed and dropped to the
pavement. While going to the ground, she kicked at and scratched one of the officers
with her fingernails; then she bit him on the arm. He punched A.L. twice in the head,
turned her onto her stomach, and put her in handcuffs.
       The District Attorney filed a juvenile wardship petition alleging that A.L. violated
Penal Code sections 243, subdivision (d) (battery causing serious bodily injury); 243,
subdivision (b) (battery on a peace officer); 69 (resisting a peace officer by force); and
148, subdivision (a)(1) (resisting a peace officer). At the contested jurisdictional hearing,
the prosecutor conceded there was insufficient evidence to sustain the battery with
serious bodily injury count, but urged the remaining counts should be sustained. The
prosecutor argued that the element of the resisting offenses requiring knowledge the
officer was performing a duty had been proven––even if the court accepted A.L.’s
position that she resisted because, as the victim of her sister’s attack, the officers had no
right to detain her: “[T]hat seems to be the crux of her issue, is that she felt she didn’t
have to comply with putting her arms behind her back and being handcuffed because she
felt she wasn’t the actual perpetrator; that she was instead the victim and she was angry
and she fought. And she doesn’t get to do that once the Court makes the determination
that the police were actually within their rights to detain her, and in this particular case,
they were.”
       The juvenile court agreed, stating, “the law is real clear here. Whether you think
the police have the right to detain you or stop you or hold onto you, the law in this state
says you don’t get to resist. That’s just what the Penal Code says. There’s no way
around it.” The court sustained the allegations that A.L. violated Penal Code section 243,
subdivision (b); section 69; and section 148, subdivision (a)(1). She was declared a ward
of the court, returned to parental custody under supervision of a probation officer, and
                                               2
ordered to comply with various conditions recommended by the probation department,
including 30 hours of community service.
                                     II.    DISCUSSION
       A.L. contends the juvenile court used an incorrect standard to find that she
violated Penal Code sections 243, subdivision (b); 69; and 148, subdivision (a)(1).1 She
argues that the court’s comments in announcing its decision reveal that it did not consider
her state of mind at the time she resisted, which is an element of each offense.
       Wrongful intent is fundamental to virtually all criminal offenses. (Pen. Code,
§ 20.) “So basic is this requirement that it is an invariable element of every crime unless
excluded expressly or by necessary implication.” (In re Jennings (2004) 34 Cal.4th 254,
267.) Criminal liability will not be imposed without proof of the necessary mental state,
except where the Legislature has expressed in the language of the statute that liability will
attach solely because an act was committed, without regard to a perpetrator’s intent.
(Ibid.) Determining whether the juvenile court applied the correct legal standard for
intent requires us to interpret the applicable statutes, which we do using our independent
judgment. (People v. Morales (2018) 25 Cal.App.5th 502, 509.) The rules governing our
inquiry are well established: “When construing a statute, a court seeks to determine and
give effect to the intent of the enacting legislative body. (Citation.) ‘ “We first examine
the words themselves because the statutory language is generally the most reliable
indicator of legislative intent.” ’ ” (People v. King (2006) 38 Cal.4th 617, 622.) “ ‘If the
words themselves are not ambiguous, we presume the Legislature meant what it said, and
the statute’s plain meaning governs.’ ” (Schatz v. Allen Matkins Leck Gamble & Mallory
LLP (2009) 45 Cal.4th 557, 571.) Consistent with those principles, we look to the plain
language of the statutes at issue here to determine what mental state the Legislature
identified as an element of each offense.


       1
           Unspecified statutory references are to the Penal Code.
                                               3
   A. PENAL CODE SECTION 243, SUBDIVISION (B): “KNOWS OR REASONABLY
      SHOULD KNOW”
       Penal Code section 243, subdivision (b) prohibits battery on a peace officer. It
applies “[w]hen a battery is committed against the person of a peace officer […] and the
person committing the offense knows or reasonably should know that the victim is a
peace officer [] in the performance of his or her duties[.]” The statute does not impose
strict liability for battery on a peace officer; rather, it punishes only someone who
actually knows or reasonably should know the victim is an officer performing his or her
duty. “Knows or reasonably should know” is a criminal negligence standard. It allows
the wrongful intent required for a criminal offense to be proven either by the perpetrator’s
own state of mind or based on what a reasonable person would be aware of in a given
situation. (See Williams v. Garcetti (1993) 5 Cal.4th 561, 574 [“Under the criminal
negligence standard, knowledge of the risk is determined by an objective test: ‘[I]f a
reasonable person in defendant's position would have been aware of the risk involved,
then defendant is presumed to have had such an awareness.’ ”].)
       Since criminal negligence is an objective standard, the juvenile court was correct
that under Penal Code section 243, subdivision (b), it makes no difference whether A.L.
believed the officers were performing their duty when they detained her. It is enough that
a reasonable person would have believed they were. (See, e.g., People v. Luo (2017)
16 Cal.App.5th 663, 670–671.) Accordingly, the juvenile court applied the correct
standard in finding that A.L. violated Penal Code section 243, subdivision (b).
   B. PENAL CODE SECTION 69: “KNOWINGLY”
       Penal Code section 69 defines two different crimes: attempting to deter an
executive officer in the performance of duty by threats or violence; and resisting an
executive officer in the performance of duty by force or violence. (People v. Smith
(2013) 57 Cal.4th 232, 240.) The prosecution’s theory was that A.L. violated section 69
by forcefully resisting an officer. The offense is committed when a person “knowingly


                                              4
resists, by the use of force or violence, the officer, in the performance of his or her duty.”
(Pen. Code, § 69.) The intent element specified by the Legislature––knowingly––
“requires actual knowledge on the part of the defendant that the person being resisted is
an executive officer and that the officer is engaged in the performance of his/her duty.”
(People v. Hendrix (2013) 214 Cal.App.4th 216, 237; see also People v. Atkins (2019)
31 Cal.App.5th 963, 974.) Actual knowledge, unlike constructive knowledge under a
criminal negligence standard, means a person is subjectively aware of the necessary facts.
(See Pen. Code, § 7, subd. (5) [“The word “knowingly” imports only a knowledge that
the facts exist which bring the act or omission within the provisions of this code.”].) We
agree with A.L that her knowledge regarding whether the officers were performing their
duty is relevant to deciding if she violated Penal Code section 69. A subjective
appreciation of that fact is an element of the offense.
       Requiring proof of actual knowledge does not mean that a defendant can avoid
culpability under Penal Code section 69 merely by asserting a belief that an officer had
no right to detain them. A defendant’s assertion regarding any disputed fact––including
his or her own state of mind––is not dispositive, as not every assertion is a credible one.
The trier of fact is not required to accept the defendant’s version of events, particularly if
it is at odds with other evidence. The controlling question is whether the evidence shows
A.L. knew that the officers were in the performance of duty when they tried to stop her
from advancing toward her sister. A.L.’s retrospective testimony about her state of mind
at the time of the offense does not require a finding in her favor on the issue. But the
prosecution’s burden of proving a Penal Code section 69 charge includes the element of
actual knowledge that the officer was performing a duty.
   C. PENAL CODE SECTION 148, SUBDIVISION (A)(1): “WILLFULLY”
       Penal Code section 148, subdivision (a)(1) prohibits resisting an officer in the
performance of duty, though the resistance need not be forceful or violent. The intent
specified in the statute is that the perpetrator “willfully resists, delays, or obstructs any []
                                                5
peace officer … in the discharge or attempt to discharge any duty of his or her office or
employment[.]” (Pen. Code, § 148, subd. (a)(1).)
       Willfully is most naturally read as synonymous with knowingly, because “ ‘the
term “willfully” … imports a requirement that “the person knows what he is doing.” ’ ”
(People v. Garcia (2001) 25 Cal.4th 744, 752, quoting People v. Honig (1996)
48 Cal.App.4th 289, 334.) When “willfully” is the mental state required for a crime, the
perpetrator must have actual knowledge of the relevant facts. (In re Jerry R. (1994)
29 Cal.App.4th 1432, 1437.) Therefore, Penal Code section 148, subdivision (a)(1)––like
the similar offense described by Penal Code section 69––requires that a defendant have
actual knowledge he or she is resisting an officer in the performance of duty.
       We are mindful that our conclusion disagrees with People v. Lopez (1986)
188 Cal.App.3d 592, which held the intent element of Penal Code section 148,
subdivision (a)(1) is criminal negligence––“knows or should know.” Lopez considered a
challenge to a jury instruction which told the jury that “willfully” means the act was
committed intentionally, but it did not identify the defendant’s knowledge of particular
facts as an element of the section 148 offense. The Lopez court held, correctly, that
knowledge is an element of Penal Code section 148, subdivision (a)(1) and the instruction
for that charge “should include knowledge as an element.” (People v Lopez, supra, at
pp. 599–600.) But in our view the court then inaccurately stated what would satisfy the
element: “Before one can be found culpable, however, he or she must know, or through
the exercise of reasonable care should have known, that the person attempting to make
the arrest is an officer.” (Id. at p. 599.) As we have discussed, that standard describes
criminal negligence, not willfulness. Lopez is correct in that the crime of resisting an
officer requires proof of a defendant’s state of mind as an element. But “willfulness”
requires proof of actual and not merely constructive knowledge.
       As this court noted in People v. Atkins, supra, 31 Cal.App.5th 963, 979, the
analysis used in Lopez to arrive at the knowledge standard for Penal Code section 148,
                                             6
subdivision (a) is “somewhat elliptical.” Lopez appears to have adopted a criminal
negligence standard from the language of Penal Code section 834a, a statute imposing a
generalized duty to not resist arrest: “If a person has knowledge, or by the exercise of
reasonable care, should have knowledge, that he is being arrested by a peace officer, it is
the duty of such person to refrain from using force or any weapon to resist such arrest.”
But Penal Code section 834a is a different statute. Its language should not be imported to
define the offense created by Penal Code section 148, subdivision (a)(1), particularly
when the Legislature specified a different mental state––willfulness––as the intent
element for that offense. (See In re Jennings, supra, 34 Cal.4th at p. 275 [when the
Legislature expressly includes a scienter requirement, a court must not read that element
out of the statute and ease the prosecution’s burden of proof].) 2 Indeed, since the
Legislature used the language of criminal negligence in Penal Code section 834a (and
also in section 243, subdivision (b)) but decided to use different language in section 148,
subdivision (a)(1), we must respect that choice. (In re Jennings, supra, 34 Cal.4th 254,
273, quoting People v. Norwood (1972) 26 Cal.App.3d 148, 156 [“ ‘It is a settled rule of
statutory construction that where a statute, with reference to one subject contains a given
provision, the omission of such provision from a similar statute concerning a related
subject is significant to show that a different legislative intent existed with reference to
the different statutes.’ ” ].) Regardless of whether it is desirable from a policy
perspective to make criminal negligence the standard for resisting an officer, “we must



       2
          As People v. Atkins, supra, 31 Cal.App.5th at p. 978 observed, “The holding of
Lopez has been incorporated into the pattern jury instruction for section 148(a), which
requires the prosecution to prove that, ‘[w]hen the defendant acted, (he/she) knew, or
reasonably should have known that [the officer] was [a peace officer] performing or
attempting to perform (his/her) duties.’ (CALCRIM No. 2656.)” Since there was no jury
trial in this case, the accuracy of that instruction is not an issue in this appeal. But under
our holding that Penal Code section 148, subdivision (a)(1) requires proof of actual
knowledge, not merely criminal negligence, CALCRIM 2656 is incorrect.
                                               7
give effect to the statute as written, not as it might have or should have been written.” (In
re Jerry R., supra, 29 Cal.App.4th at p. 1439.)
       The Supreme Court has found criminal negligence to be the intent element for at
least one offense where the Legislature did not expressly articulate the “knows or should
know” standard in the statute. In re Jorge M. decided that Penal Code section 12280,
subdivision (b), a statute prohibiting possession of assault weapons, is violated when a
person knows or reasonably should know that a particular firearm is an “assault weapon”
as defined by the law. (In re Jorge M. (2000) 23 Cal.4th 866, 887.) The analysis in
Jorge M. does not support grafting a criminal negligence standard onto Penal Code
section 148, subdivision (a)(1). The most significant reason is that the statute in Jorge M.
stated no intent requirement at all. The question was whether the offense imposed strict
liability, where a person can be convicted without regard to state of mind, or whether an
intent requirement should be read into the statute. By deciding that strict liability was
inappropriate and criminal negligence should be the standard, the Supreme Court
increased the prosecution’s burden of proof as compared with the language of the statute.
But here, imposing a criminal negligence standard when the statutory text requires
willfulness would decrease the burden of proving a violation.
       The Jorge M. court also found criminal negligence to be the appropriate standard
because, in view of the law’s intent to alleviate a serious public safety threat posed by
assault weapons, the statute should not be read to contain “any mental state requirement
that the prosecution would foreseeably and routinely have special difficulty proving.”
(In re Jorge M., supra, 23 Cal.4th at p. 884.) No similar difficulty is posed by requiring
proof of actual knowledge that an officer was engaged in the performance of duty.
Actual knowledge may be proven circumstantially. (Ibid.) Indeed, absent an admission
by the defendant, it must be. It is common knowledge that an officer may detain
someone suspected of wrongdoing or who poses a threat to public safety. As a result, the
circumstances of an encounter can, in an appropriate case, readily establish that a
                                              8
defendant knew the person being resisted was an officer in the performance of duty. In
contrast, to know that a firearm has the characteristics of an assault weapon may require
specialized knowledge, so “in many instances a defendant's direct testimony or prior
statement that he or she was actually ignorant of the weapon's salient characteristics will
be sufficient to create reasonable doubt.” (Id. at pp. 884–885.) The special difficulty in
proving actual knowledge that was identified in Jorge M. is not present in a prosecution
for resisting arrest.
       We note that while actual knowledge is a higher standard than criminal
negligence, both standards are proven in much the same way: Circumstantial evidence
tending to show that a reasonable person would have known an officer was engaged in
the performance of duty will likewise tend to show that a particular defendant was aware
of that fact. The only difference when actual knowledge is required is that if a defendant
denies knowing the relevant facts, the trier of fact must judge the credibility of that
statement. Using actual knowledge as the intent element for Penal Code section 148,
subdivision(a)(1) comports with the statutory language and does not present any undue
obstacle to its enforcement.
       A defendant’s actual knowledge that an officer is engaged in the performance of a
duty is required by the plain language of both Penal Code sections 69 and 148,
subdivision (a)(1). Less clear is whether that requirement means a defendant must
subjectively appreciate that an officer is lawfully performing a duty. There may be no
distinction between performing a duty and lawfully performing a duty, since an officer
who is acting unlawfully cannot be said to be performing his or her duty. (See, e.g.,
People v. Olguin (1981) 119 Cal.App.3d 39, 46 [when officers use excessive force they
are “not acting within the scope of their duties”].) But in the context of the Penal Code
section 190.2, subdivision (a)(7) special circumstance for killing an officer in retaliation
for performance of duty, the Supreme Court decided “the defendant’s subjective
understanding that the officer’s conduct was lawful is not an element of proof.” (People
                                              9
v. Jenkins (2000) 22 Cal.4th 900, 1021.) Here, even if actual knowledge of lawful
performance were required, the juvenile court’s comments do not unambiguously reveal a
misunderstanding of the law on that point. We therefore need not decide the contours of
the actual knowledge element.
   D. NO UNAMBIGUOUS MISUNDERSTANDING OF LAW
       Having decided that Penal Code sections 69 and 148, subdivision (a)(1) require
proof of A.L.’s actual knowledge, we must determine whether the juvenile court’s
comments at the disposition hearing show a clear misapplication of the law, necessitating
reversal. “Ordinarily statements made by the trial court as to its reasoning are not
reviewable. An exception to this general rule exists when the court's comments
unambiguously disclose that its basic ruling embodied or was based on a
misunderstanding of the relevant law.” (In re Jerry R., supra, 29 Cal.App.4th at p. 1440.)
The juvenile court’s statement that “whether you think the police have the right to detain
you … you don’t get to resist,” does not on its face establish the court applied the wrong
legal standard.
       The prosecutor argued that A.L.’s belief about whether the officers were
performing a duty is irrelevant “once the Court makes the determination that the police
were actually within their rights to detain her, and in this particular case, they were.” If
the juvenile court accepted that position, it may have found that the statutes were violated
so long as the officers were performing their duty, without regard to A.L.’s awareness of
that fact. But the juvenile court’s comments here are susceptible of more than one
interpretation, and unless the comments unambiguously show it misunderstood the law,
we must affirm. The court may indeed have been expressing a misunderstanding of the
relevant law by indicating A.L.’s state of mind did not matter. On the other hand, the
court may have been referring only to the Penal Code section 243, subdivision (b) count,
in which case the comments correctly described the law. The court also expressly found
that the necessary elements for all three offenses had been proven beyond a reasonable
                                             10
doubt, and those elements include the actual knowledge requirement of Penal Code
sections 69 and 148, subdivision (a)(1). On balance, the juvenile court’s comments are
not so unambiguous as to require reversal.
                                 III.   DISPOSITION
      The juvenile court’s order is affirmed.




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                               ____________________________________
                               Grover, J.




I CONCUR:




____________________________
Danner, J.




I CONCUR IN THE JUDGMENT ONLY:




____________________________
Mihara, Acting P. J.




H045802 - The People v. A.L.
Trial Court:                          Santa Clara County Superior Court,
                                      Case No.: 17-JV-42477A

Trial Judge:                          Hon. Franklin E. Bondonno
Attorneys for Plaintiff/Respondent:   Xavier Becerra
The People                             Attorney General of California
                                      Gerald A. Engler
                                       Chief Assistant Attorney General
                                      Jeffrey M. Laurence
                                       Senior Assistant Attorney General
                                      Rene A. Chacon
                                       Supervising Deputy Attorney General
                                      Julia Y. Je
                                       Deputy Attorney General
Attorneys for Defendant/Appellant:    Under Appointment by the Court of Appeal:
A.L., a Minor                         Mark McKenna
                                      Law Office of Mark McKenna
