Can a defendant be convicted of resisting an unlawful arrest under section 148 of the California Penal Code?

California, United States of America

The following excerpt is from People v. Moreno, 108 Cal.Rptr. 338, 32 Cal.App.3d Supp. 1 (Cal. Super. 1973):

A close reading of People v. Curtis, 70 Cal.2d 347, 74 Cal.Rptr. 713, 450 P.2d 33, reveals the obvious validity of the defense contention. Curtis squarely holds that If the arrest is unlawful there can be no conviction of Penal Code section 148 because the officer is not 'in the discharge of his duty.' At pages 354 and 355, 74 Cal.Rptr. 713, 450 P.2d 33 the court discusses the effect of Penal Code section 834a and, relying on evidence from the legislative hearings, unequivocally stated that it Had no purpose or result of creating a new substantive crim of resisting an unlawful arrest.

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Can a defendant be convicted of resisting an unlawful arrest under section 148 of the California Penal Code?

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