263 Cal.Rptr.3d 702
Cal. Ct. App.2020Background
- Defendant Billy Ray Gerberding was convicted of violating Penal Code § 148(a)(1) for resisting, delaying, or obstructing a peace officer during an arrest arising from a homeless camp clean-up.
- Officer Omar Khan (Fresno Police Homeless Task Force) ordered Gerberding to move a broken cart blocking the sidewalk; Gerberding refused after being told contents could be stored or destroyed.
- Officer Khan grabbed Gerberding’s wrist when Gerberding started to walk away; a struggle ensued, the officer swept Gerberding’s legs, pinned him, and handcuffed him; body cam was activated during the struggle.
- The prosecution relied solely on a theory that Gerberding violated Fresno Municipal Code § 13-109 (prohibiting a person from standing or sitting in a street so as to obstruct passage).
- The appellate court concluded FMC § 13-109 unambiguously prohibits a person’s body, not personal property, from obstructing a street/sidewalk; therefore the officer misapplied the ordinance to the cart and lacked probable cause to arrest.
- Applying Heien and its concurrence (requiring a genuinely ambiguous statute for a reasonable mistake of law), the court held the officer’s mistake was not objectively reasonable; the arrest was unlawful and the § 148 conviction could not stand. Judgment reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Lawfulness of arrest under FMC § 13-109 | Ordinance covers obstructions to passage; officer saw a clear violation (cart blocking sidewalk) | § 13-109 prohibits a person sitting/standing, not property; no evidence defendant’s person obstructed sidewalk | Statute unambiguously targets persons, not property; arrest lacked probable cause and was unlawful |
| Reasonableness of officer's mistake of law (Heien) | Officer’s interpretation was reasonable; supports probable cause | The statute is not ambiguous; mistake was unreasonable under Heien/Kagan concurrence | Heien does not justify misreading an unambiguous ordinance; mistake was objectively unreasonable |
| Sufficiency of evidence for Penal Code § 148 conviction | Officer testified defendant refused orders and resisted arrest | If arrest was unlawful for lack of probable cause, nonviolent resistance is not crime under § 148 | Because arrest lacked probable cause and prosecution relied solely on the ordinance theory, evidence insufficient; conviction reversed |
Key Cases Cited
- Heien v. North Carolina, 574 U.S. 54 (2014) (Fourth Amendment permits reasonable mistakes of law, but reasonableness requires genuine ambiguity per Kagan concurrence)
- In re Manuel G., 16 Cal.4th 805 (1997) (defendant cannot be convicted for resisting an officer who is not lawfully performing duties)
- People v. Arias, 45 Cal.4th 169 (2008) (rules of statutory construction applied to interpret ordinances and statutes)
- Atwater v. City of Lago Vista, 532 U.S. 318 (2001) (officer may arrest for minor offenses committed in presence if probable cause exists)
- Gerstein v. Pugh, 420 U.S. 103 (1975) (probable cause defined by facts and circumstances sufficient to warrant belief that suspect committed an offense)
- Dunaway v. New York, 442 U.S. 200 (1979) (every arrest is unreasonable under Fourth Amendment unless supported by probable cause)
- People v. Gonzalez, 51 Cal.3d 1179 (1990) (officer not engaged in performance of duties when making unlawful arrests)