Gabbi Lemos v. COUNTY OF SONOMA , STEVE FREITAS , and MARCUS HOLTON

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GABBI LEMOS ,
Plaintiff-Appellant,
v.
COUNTY OF SONOMA , STEVE
FREITAS , and M ARCUS HOLTON ,
Defendants-Appellees.
No. 19-15222
D.C. No.
4:15-cv- 05188-
YGR
OPINION
Appeal from the United States District Court
For Northern California, Oakland
Yvonne Gonzalez Rogers, District Judge, Presiding
Argued and Submitted May 22, 2020
San Francisco, California
Filed July 16, 2021
Before: Marsha S. Berzon and Sandra S. Ikuta, Circuit
Judges, and Ivan L.R. Lemelle,* District Judge.
Opinion by Judge Lemelle;
Dissent by Judge Berzon
* The Honorable Ivan L.R. Lemelle, United States District Judge for
the Eastern District of Louisiana, sitting by designation.

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2 LEMOS V. COUNTY OF S ONOMA
SUMMARY**
42 U.S.C. § 1983 / Heck v. Humphrey
The panel affirmed the district court’s order on summary
judgment holding that appellant’s 42 U.S.C. § 1983 claim
for excessive force was barred by Heck v. Humphrey, 512
U.S. 477 (1994).
Appellant argued that her conviction after jury trial for
violations of California Penal Code § 148(a)(1) (resisting,
obstructing, or delaying a peace officer), and her § 1983
claim were not necessarily based on the same transaction,
and therefore not barred by Heck.
The panel held that the relevant inquiry in applying Heck
is whether the record contained factual circumstances that
supported the underlying conviction under § 148(a)(1), and
not whether the conviction was obtained by a jury verdict or
a guilty plea. The panel held further that, based on the jury
instructions and evidence of record before it, the jury verdict
established that appellant resisted and the deputy’s conduct
was lawful throughout the encounter. Furthermore, in
California, the lawfulness of an officer’s conduct is an
essential element of the offense of resisting, delaying, or
obstructing a peace officer. The panel held that the record
compelled a finding the jury determined that the arresting
deputy acted within the scope of his duties without the use
of excessive force, and that appellant sought to show that the
same conduct constituted excessive force. The district court
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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LEMOS V. COUNTY OF S ONOMA 3
appropriately considered summary disposition of remaining
legal issues under Heck and its progeny. In reliance, the
panel found that Smith v. City of Hemet, 394 F.3d 689 (9th
Cir. 2005 (en banc), and Beets v. City of Los Angeles, 669 F.
3d 1038 (9th Cir. 2012), controlled application of the Heck
bar as found by the district court.
Judge Berzon dissented. She wrote that the jury was
instructed that there were four possible factual bases on
which it could convict appellant, and three of the factual
bases pertained to acts not an issue in appellant’s section
1983 claim. Success on appellant’s section 1983 claim
therefore did not necessarily imply that her conviction was
invalid. In concluding that Heck barred appellant’s
excessive force claim, the majority fundamentally erred.
COUNSEL
Izaak D. Schwaiger (argued), Schwaiger Law Firm,
Sebastopol, California; John Houston Scott and Lizabeth N.
de Vries, Scott Law Firm, San Francisco, California; for
Plaintiff-Appellant.
Richard W. Osman (argued) and Sheila D. Crawford,
Bertrand Fox Elliott Osman & Wenzel, San Francisco,
California, for Defendants-Appellees.

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4 LEMOS V. COUNTY OF S ONOMA
OPINION
LEMELLE, District Judge:
Appellant Gabbi Lemos appeals the district court’s order
granting appellee County of Sonoma, Sheriff Steve Freitas,
and Deputy Marcus Holton’s motion for summary judgment.
Appellant argues that her conviction after jury trial for
violations of California Penal Code § 148(a)(1) and her
42 U.S.C. § 1983 claim are not necessarily based on the
same transaction, and as a result the district court erred in
ruling that the § 1983 claim was barred by Heck v.
Humphrey, 512 U.S. 477 (1994).
FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
On June 13, 2015, Deputy Holton, after seeing a pickup
truck blocking a lane of traffic and hearing screaming,
stopped at the home of Gabbi Lemos to investigate what he
believed was a domestic dispute involving Karli Labruzzi
and Darien Balestrini. After speaking with Balestrini,
outside of the vehicle, Holton walked around to the
passenger side where he encountered Labruzzi, Gabbi
Lemos, Lemos’s mother, and Lemos’s sister. Holton asked
Lemos, her mother, and sister to step away from the vehicle
so that Holton could speak with Labruzzi.
While speaking with Labruzzi, Holton attempted to open
the truck door. Lemos then inserted herself between Holton
and the open truck door while pointing her finger at Holton
and yelling that Holton was not allowed to go in the truck.
Holton then pushed Lemos away from him with his right
hand. After closing the truck door and repeatedly ordering
Lemos, Lemos’s mother and Lemos’s sister to calm down to
which the parties did not comply, Holton requested backup.

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LEMOS V. COUNTY OF S ONOMA 5
Following backup’s arrival, Lemos and others continued
to be uncooperative. Holton then separated Lemos’s mother
from the group to explain the investigation, but Lemos’s
mother returned to the group and continued to be
uncooperative. Subsequently, Lemos’s mother told Lemos
to go into the house at which point Lemos turned to walk
toward the house. As Lemos walked past Holton, Holton told
her, “Hey, come here. Hey.” Lemos did not respond and
continued to walk away. Holton then ran up behind Lemos,
grabbed her, and brought her to the ground.
On November 12, 2015, Lemos filed a complaint in the
district court asserting an excessive force claim under
42 U.S.C. § 1983 arising out of the June 13, 2015 incident.
Lemos claimed Holton used excessive force in stopping her
from fleeing as he attempted to arrest her. On April 18, 2016,
the district court stayed the federal action during pendency
of state criminal proceedings against Lemos, in which
Lemos had been charged with resisting, obstructing, or
delaying a peace officer in violation of California Penal
Code § 148(a)(1).1
On August 31, 2016, a jury was instructed Lemos could
be found guilty of violating California Penal Code
§ 148(a)(1). The jury was instructed to find each of the
following elements beyond a reasonable doubt: (1) “Deputy
1 California Penal Code § 148(a)(1) provides, “Every person who
willfully resists, delays, or obstructs any public officer, peace officer, or
an emergency medical technician, as defined in Division 2.5
(commencing with Section 1797) of the Health and Safety Code, in the
discharge or attempt to discharge any duty of his or her office or
employment, when no other punishment is prescribed, shall be punished
by a fine not exceeding one thousand dollars ($1,000), or by
imprisonment in a county jail not to exceed one year, or by both that fine
and imprisonment.”

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6 LEMOS V. COUNTY OF S ONOMA
Marcus Holton was a peace officer lawfully performing or
attempting to perform his duties as a peace officer,”
(2) “[Lemos] willfully resisted, obstructed or delayed
Deputy Marcus Holton in the performance or attempted
performance of those duties,” and (3) “[w]hen [Lemos]
acted, she knew, or reasonably should have known, that
Deputy Marcus Holton was a peace officer performing or
attempting to perform his duties.” As to the first element,
the jury was instructed that “[a] peace officer is not lawfully
performing his or her duties if he or she is unlawfully
arresting or detaining someone or using unreasonable or
excessive force in his or her duties.” With respect to the
second element, the jury was instructed that Lemos could be
found guilty based on four theories of liability: Lemos
(1) made physical contact with Holton as he was trying to
open the truck door; (2) placed herself between Holton and
Ms. Labruzzi; (3) blocked Holton from opening the truck
door and seeing or speaking to Ms. Labruzzi; or (4) pulled
away from Holton when Holton attempted to grab her.
Lemos was convicted by a jury for violating California Penal
Code Section 148(a)(1) when Lemos resisted, delayed, or
obstructed Deputy Holden while he was conducting his
duties as an officer on June 13, 2015.
On May 24, 2018, the district court lifted the stay. On
November 8, 2018, all defendants filed a motion for
summary judgment. The district court issued its order
granting defendant’s motion for summary judgment on
January 29, 2019. Lemos timely filed a notice of appeal.
JURISDICTION AND STANDARD OF REVIEW
The district court had jurisdiction pursuant to 28 U.S.C.
§ 1331. We have appellate jurisdiction pursuant to
28 U.S.C. § 1291.

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LEMOS V. COUNTY OF S ONOMA 7
We review de novo the district court’s grant of summary
judgment. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th
Cir.1996). We must determine, “viewing the evidence in the
light most favorable to the nonmoving party, whether
genuine issues of material fact exist.” Id. We will affirm only
if no “reasonable jury viewing the summary judgment record
could find by a preponderance of the evidence that the
plaintiff is entitled to a favorable verdict.” Narayan v. EGL,
Inc., 616 F.3d 895, 899 (9th Cir.2010). “If a rational trier of
fact could resolve a genuine issue of material fact in the
nonmoving party’s favor,” summary judgment is
inappropriate. Bravo v. City of Santa Maria, 665 F.3d 1076,
1083 (9th Cir.2011). “[C]redibility determinations, the
weighing of the evidence, and the drawing of legitimate
inferences from facts are jury functions, not those of a
judge.” Id. (quoting Nelson v. City of Davis, 571 F.3d 924,
927 (9th Cir.2009)).
Lemos contends that jurors in the criminal trial were
instructed she could be found guilty of violating § 148(a)(1)
based on four theories of liability, and the jury was given a
general verdict form. The verdict form did not indicate
whether the jury found Lemos guilty of one or all of the
instances given in the jury instructions. Lemos contends that
if the jury did not find her guilty of pulling away from Holton
when he attempted to restrain her (the fourth theory of
liability), then her § 1983 claim is not barred by Heck.
Excessive force claims are analyzed under the objective
reasonableness standard of the Fourth Amendment as
enunciated in Graham v. Connor, 490 U.S. 386 (1989), and
Tennessee v. Garner, 471 U.S. 1 (1985). See Blanford v.
Sacramento Cnty., 406 F.3d 1110, 1115 (9th Cir. 2005). For
assigned reasons below, we discern no material factual
disputes from this record. The sole issue remaining on

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8 LEMOS V. COUNTY OF S ONOMA
appeal is a basic Heck question—whether success on
Lemos’s § 1983 excessive force claim “would ‘necessarily
imply’ or ‘demonstrate’ the invalidity” of Lemos’s state
court conviction under California Penal Code § 148(a)(1).
THE HECK PRECLUSION DOCTRINE
In Heck v. Humphrey, the United States Supreme Court
held that:
[I]n order to recover damages for allegedly
unconstitutional conviction or imprisonment,
or for other harm caused by actions whose
unlawfulness would render a conviction or
sentence invalid, a § 1983 plaintiff must
prove that the conviction or sentence has
been reversed on direct appeal, expunged by
executive order, declared invalid by a state
tribunal authorized to make such
determination, or called into question by a
federal court's issuance of a writ of habeas
corpus . . . . A claim for damages bearing that
relationship to a conviction or sentence that
has not been so invalidated is not cognizable
under § 1983. Thus, when a state prisoner
seeks damages in a § 1983 suit, the district
court must consider whether a judgment in
favor of the plaintiff would necessarily imply
the invalidity of his conviction or sentence; if
it would, the complaint must be dismissed
. . . .
512 U.S. 477, 486 (1994). Under Heck, “[w]hen a plaintiff
who has been convicted of a crime under state law seeks
damages in a § 1983 suit, ‘the district court must consider
whether a judgment in favor of the plaintiff would

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LEMOS V. COUNTY OF S ONOMA 9
necessarily imply the invalidity of his conviction or
sentence.’” Hooper v. Cnty. of San Diego, 629 F.3d 1127,
1130 (9th Cir. 2011) (quoting Heck, 512 U.S. at 487). If it
would, the civil action is barred. Id.; cf. Yount v. City of
Sacramento, 43 Cal. 4th 885, 902 (2008) (extending Heck to
California state law claim for battery). Heck instructs that “if
a criminal conviction arising out of the same facts stands and
is fundamentally inconsistent with the unlawful behavior for
which section 1983 damages are sought, the 1983 action
must be dismissed.” Smithart v. Towery, 79 F.3d 951, 952
(9th Cir.1996) (per curiam). However, a plaintiff’s allegation
of excessive force by a police officer is not barred by Heck
if the officer’s conduct is “distinct temporally or spatially
from the factual basis for the [plaintiff’s] conviction.” Beets
v. Cnty. of Los Angeles, 669 F.3d 1038, 1042 (9th Cir. 2012)
(citing Smith v. City of Hemet, 394 F.3d 689, 699 (9th
Cir.2005) (en banc)).
In Beets, we rejected an attempt to separate a deputy’s
action from the criminal activity underlying the § 1983
plaintiffs’ excessive-force claim. The § 1983 plaintiffs in
Beets, like Lemos here, argued that there were several
possible factual bases for the relevant criminal conviction.
Id. at 1045. Therefore, they argued, the conviction was not
necessarily based on the same factual basis as the alleged
civil rights violations. Id. In Beets, as here, the jury
instructions in the criminal case required that to convict the
defendant, the jury had to find she acted willfully against a
police officer who was “lawfully performing his duties as a
peace officer,” and that the officer was not “using
unreasonable or excessive force in his or her duties.” Id.
Beets reaffirmed and relied on Smith to conclude that the
jury necessarily determined that during the entire course of
the deputy’s conduct, he “acted within the scope of his duties

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10 LEMOS V. COUNTY OF S ONOMA
and did not use excessive force.” Beets, 669 F.3d at 1045.2
In Smith, we distinguished such a jury verdict from a guilty
plea: “[W]here a § 1983 plaintiff has pled guilty or entered
a plea of nolo contendere . . . it is not necessarily the case
that the factual basis for his conviction included the whole
course of his conduct.” 394 F.3d at 699 n.5. Beets reaffirmed
this distinction. 669 F.3d at 1045. Because the jury’s verdict
in the criminal case necessarily found that the deputy did not
use excessive force at any time during the “course of the
defendant’s conduct,” id. (quoting Smith, 394 F.3d at 699
n.5), a verdict in the plaintiffs’ favor on their § 1983
excessive-force claim would have necessarily implied that
the underlying criminal conviction was invalid. Therefore,
the claim was barred by Heck. Id.
Although Beets relied on Smith in determining the officer
acted within the scope of his duties during the entire course
of conduct, it was one of two independent grounds on which
Beets rejected the plaintiffs’ argument that the relevant
conviction was not barred by Heck; indeed, Beets made clear
that the argument failed “on two counts.” Id. Nevertheless,
“[i]t is well-established that ‘where a decision rests on two
or more grounds [as in Beets], none can be relegated to the
2 Reliance on Beets and Smith is criticized in a well-reasoned dissent
to an unpublished disposition in Wilson v. City of Long Beach, 567 F.
App’x 485 (9th Cir. 2014), cert. denied, 135 S. Ct. 1154 (2015). While
positing certain record deficiencies in the factual and legal outcomes, the
dissent also emphasized that the ruling in Beets, and footnote 5 in Smith,
on which Beets relies, are non-binding dicta. We note however when the
circuit was sitting en banc, as in Smith, even dicta is binding on
subsequent panels. An en banc panel announces “binding legal
principle[s] for three-judge panels and district courts to follow even
though the principle[s] [may be] technically unnecessary to the . . .
disposition of the case.” Barapind v. Enomoto, 400 F.3d 744, 751 n.8
(9th Cir. 2005) (en banc) (per curiam).

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LEMOS V. COUNTY OF S ONOMA 11
category of obiter dictum.’” United States v. Vidal-Mendoza,
705 F.3d 1012, 1016 n.5 (9th Cir. 2013) (quoting Woods v.
Interstate Realty Co., 337 U.S. 535, 537 (1949)).
This comparative analysis of jury verdicts and guilty
pleas does not support the proposition, as grossly
mischaracterized by the dissent, that this opinion serves as
an open invitation for police overreaction, provided that the
prosecutor secures a guilty jury verdict as opposed to a guilty
plea. Whether the accused wishes to proceed to trial or enter
a guilty plea is not the defining factor of Heck’s application.
Instead, the relevant inquiry is whether the record contains
factual circumstances that support the underlying conviction
under § 148(a)(1), not whether the conviction was obtained
by a jury verdict or a guilty plea. Beets, 669 F.3d at 1045;
Yount, 43 Cal. 4th at 891.
Yount involved an incident wherein the plaintiff
consistently resisted the officers’ attempts to place him in the
patrol car until one officer mistakenly fired his pistol, instead
of his taser, to subdue the plaintiff. Yount, 43 Cal. 4th at 888.
In pleading no contest to a violation of § 148(a)(1) for his
conduct leading up to the gunshot, Yount stipulated to a
factual basis “without any explicit recitation of what those
facts were.” Id. at 895. Upon review of Yount’s conviction,
his subsequent admission to its underlying facts, and
eyewitness testimony at the Heck hearing, the Supreme
Court of California found that Heck barred his § 1983 claims
pertaining to the force used by the officers in response to
Yount’s violent resistance. Id. at 898. However, the court
found that Heck did not bar Yount’s claims regarding the use
of deadly force thereafter because there was nothing within
the criminal record that provided a justification for such
force. Id.

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12 LEMOS V. COUNTY OF S ONOMA
To the extent that the dissent mischaracterizes our
opinion to imply that a guilty plea to § 148(a)(1) will lack
factual support to bar a § 1983 claim under Heck, Yount
demonstrates that such is untrue. Rather, as established in
Yount, so long as evidentiary support for the § 148(a)(1)
conviction exists in the record, plea agreements, just like
guilty jury verdicts, may establish the criminal defendant’s
resistance toward the officers and the officer’s lawful
conduct in response.
We further acknowledge that Heck would not necessarily
bar a § 1983 claim for excessive force when the defendant
enters into a plea agreement and the conviction and the
§ 1983 claim are based on different actions taken during one
continuous transaction. See Hooper v. City of San Diego,
629 F.3d 1127, 1134 (9th Cir. 2011) (excessive force used
after an arrest is made does not destroy the lawfulness of the
arrest). In Hooper, the complainant struggled briefly with the
arresting officer after they were on the ground by “jerking
side to side.” The officer restrained Hooper’s hands behind
her back, and she allegedly stopped resisting when instructed
to do so by the officer. Thereafter, and in response to a
gathering of spectators, the officer allegedly screamed “Get
away from my car. Get away from my car. Come here,
Kojo.” The officer’s German Shepherd ran up to and bit
Hooper’s head and held her head until backup arrived. The
dog’s bites caused significant injuries to Hooper. She pled
guilty to resisting a peace officer under California Penal
Code § 148(a)(1). Hooper neither disputed the lawfulness of
the arrest nor her resistance. Id. at 1129. However, she
contends that the officer used excessive force after her
resistance ended. The material facts in Hooper are
distinguishable from the material facts in Lemos.
Significantly, Hooper entered into a plea agreement—as
opposed to being convicted by a jury—so it was not

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LEMOS V. COUNTY OF S ONOMA 13
necessarily determined that the officer acted lawfully
“throughout the whole course of [Hooper’s] conduct,”
Smith, 394 F.3d at 699 n.5, and she reportedly stopped
resisting before the alleged use of excessive force by the
canine, while Lemos’ resistance was clearly viewed by her
trial jury as continuous throughout the entire transaction of
events leading up to and including all subsequent physical
contacts with the arresting deputy. The jury instructions
required that the jury find that Deputy Holton was “lawfully
performing or attempting to perform his duties as a peace
officer,” and the instructions explained that an officer “is not
lawfully performing his or her duties if he or she is
unlawfully arresting or detaining someone or using
unreasonable or excessive force in his or her duties.”
Therefore, based on the jury instructions and evidence of
record before it, the jury verdict established Lemos resisted
and the deputy’s conduct was lawful throughout the
encounter. See Beets, 669 F.3d at 1045; cf. Yount, 43 Cal.
4th at 896–97 (holding that plaintiff's unlimited no contest
plea established his culpability for resisting an officer during
the entire incident).
Furthermore, in California, the lawfulness of an officer’s
conduct is an essential element of the offense of resisting,
delaying, or obstructing a peace officer. In re Muhammed C.,
95 Cal. App. 4th 1325, 1329 (2002). For the
§148(a)(1) conviction to be valid, a criminal defendant must
have “resist[ed], delay[ed], or obstruct[ed]” a police officer
in the lawful exercise of his duties. Id. This circuit further
explained in Smith:
Excessive force used by a police officer at the
time of the arrest is not within the
performance of the officer’s duty. Id.; People
v. Olguin, 119 Cal.App.3d 39, 45–46,

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14 LEMOS V. COUNTY OF S ONOMA
173 Cal.Rptr. 663 (Cal.Ct.App.1981) (“[A]n
arrest made with excessive force is equally
unlawful. ‘[It] is a public offense for a peace
officer to use unreasonable and excessive
force in effecting an arrest.’ ”) (citation
omitted) (emphasis added); People v. White,
101 Cal.App.3d 161, 167, 161 Cal.Rptr. 541
(Cal.Ct.App.1980) (“Thus, in the present
case it becomes essential for the jury to be
told that if they found the arrest was made
with excessive force, the arrest was unlawful
and they should find the defendant not guilty
of those charges which required the officer to
be lawfully engaged in the performance of his
duties ( [Cal.Penal Code] §§ 245, subd. (b),
243 and 148).”) (emphasis added).
Under the definitions set forth in the
California cases listed above, “the time of the
arrest” does not include previous stages of
law enforcement activities that might or
might not lead to an arrest, such as
conducting an investigation; it includes only
the time during which the arrest is being
effected. A conviction for resisting arrest
under § 148(a)(1) may be lawfully obtained
only if the officers do not use excessive force
in the course of making that arrest. A
conviction based on conduct that occurred
before the officers commence the process of
arresting the defendant is not “necessarily”
rendered invalid by the officers' subsequent
use of excessive force in making the arrest.
For example, the officers do not act
unlawfully when they perform investigative

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LEMOS V. COUNTY OF S ONOMA 15
duties a defendant seeks to obstruct, but only
afterwards when they employ excessive force
in making the arrest. Similarly, excessive
force used after a defendant has been arrested
may properly be the subject of a § 1983
action notwithstanding the defendant's
conviction on a charge of resisting an arrest
that was itself lawfully conducted. See, e.g.,
Sanford v. Motts, 258 F.3d 1117, 1119–20
(9th Cir.2001) (explaining that a successful
§ 1983 suit based on excessive force would
not necessarily imply the invalidity of
Sanford's conviction under § 148(a)(1)
because the officer's use of excessive force
occurred subsequent to the conduct for which
Sanford was convicted under § 148(a)(1)).
Smith, 394 F.3d at 695–696.
Thus, the dissent is correct in stating that a valid
§148(a)(1) conviction does not necessarily implicate the
lawfulness of the officer’s conduct throughout the entirety of
his encounter with the arrestee. Dis. Op. at 26. Simply put,
a conviction under §148(a)(1) is valid only when “the officer
was acting lawfully at the time the offense against the officer
was committed.” People v. Williams, 26 Cal. App. 5th 71, 82
(2018) (emphasis added); Smith, 394 F.3d at 699. While we
do not dispute the dissent’s position as a general statement
of law, it does not change the fact that the jury unanimously
found that Holton acted lawfully throughout the continuous
chain of events on June 13, 2015, even when he placed
Lemos under arrest.
In cases like Lemos involving several potential grounds
for a § 148(a)(1) violation within a continuous chain of

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16 LEMOS V. COUNTY OF S ONOMA
events, courts often take into account certain temporal
considerations regarding the individual’s resistance and the
officer’s use of force. Williams, 26 Cal. App. 5th at 86; see
Yount, 43 Cal. 4th at 899 (“Though occurring in one
continuous chain of events, two isolated factual contexts
would exist, the first giving rise to criminal liability on the
part of the criminal defendant, and the second giving rise to
civil liability on the part of the arresting officer.” (citation
omitted)); see also Hooper, 629 F.3d at 1131 (“[A]
conviction under § 148(a)(1) can be valid, even if, during a
single continuous chain of events, some of the officer’s
conduct was unlawful.”). However, contrary to the dissent’s
interpretation, the statute does not require jurors to isolate
each potential basis for a § 148(a)(1) violation and make
piecemeal determinations of the officer’s lawful conduct at
each event, as previously acknowledged by this Court. See
Hooper, 629 F.3d at 1132 (“Section 148(a)(1) does not
require that an officer’s lawful and unlawful behavior be
divisible into two discrete ‘phases,’ or time periods, as we
believed when we decided Smith.”). Accordingly, California
jurisprudence advises against so-called “temporal hair-
splitting” in search of a distinct break between the criminal
act and the use of force where none meaningfully exists.
Fetters v. County of Los Angeles, 243 Cal. App. 4th 825, 841
(2016); Truong v. Orange County Sheriff’s Dept., 129 Cal.
App. 4th 1423, 1429 (2005).
The dissent nevertheless claims that the jury instructions
here specifically directed the jurors to “distinguish among
[each factual basis], unanimously.” Dis. Op. at 31. In Smith,
the court stated:
Where a defendant is charged with a single-
act offense but there are multiple acts
involved each of which could serve as the

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LEMOS V. COUNTY OF S ONOMA 17
basis for a conviction, a jury does not
determine which specific act or acts form the
basis for the conviction . . . . Thus, a jury’s
verdict necessarily determines the lawfulness
of the officers’ actions throughout the whole
course of the defendant’s conduct, and any
action alleging the use of excessive force
would necessarily imply the invalidity of his
conviction.
394 F.3d at 699 n.5 (citation omitted); accord Beets,
669 F.3d at 1045.3 While it is correct that the jury had to
agree unanimously that Lemos committed at least one of the
four violations, it was not required of the jury to expressly
identify which of those bases gave rise to the § 148(a)(1)
conviction, just as in Smith.
Viewed in light of binding circuit precedent, the record
compels finding the jury determined that the arresting deputy
acted within the scope of his duties without the use of
excessive force, and that Lemos seeks to show that the same
conduct constituted excessive force. Here, as in Beets,
669 F.3d at 1045, the jury was instructed that “[a] peace
officer is not lawfully performing his or her duties if he or
she is unlawfully arresting or detaining someone or using
unreasonable or excessive force in his or her duties.” And,
3 The dissent claims that this language in Smith may no longer be a
correct statement of law in California in light of our Hooper decision.
Dis. Op. at 34–35. However, Hooper’s reassessment of how § 148(a)(1)
should be interpreted has no bearing on the jury’s ultimate determination
of the defendant’s guilt and the officer’s lawful actions during the
incident here. We remain bound by Beets to read the jury instructions
here as compelling the determination that Holton was not using
unreasonable or excessive force throughout the entire course of Lemos’s
conduct. See Beets, 669 F.3d at 1045.

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18 LEMOS V. COUNTY OF S ONOMA
the jury was told that it could convict Lemos only if “Deputy
Marcus Holton was a peace officer lawfully performing or
attempting to perform his duties as a peace officer.”
Lemos’s jury considered all parties’ evidence of relevant
conduct, including the officers’ body camera footage that’s
part of this record. Material factual disputes have been
resolved by Lemos’s jury. Therefore, the district court
appropriately considered summary disposition of remaining
legal issues under Heck and its progeny. In reliance, we find
that Smith and Beets control application of the Heck bar as
found by the district court.
AFFIRMED.
BERZON, Circuit Judge, dissenting:
The majority today holds, in effect, that once a person
resists law enforcement, she has invited the police to inflict
any reaction or retribution they choose, as long as the
prosecutor could get the plaintiff convicted by a jury—and
not as the result of a plea—on a charge of resisting, delaying,
or obstructing a police officer. In so holding, the majority
confidently asserts that a jury’s conviction of a defendant
under California Penal Code section 148(a)(1)—unlike
conviction under the same section by plea agreement—
necessarily requires a determination that the officers
involved were acting lawfully at all times during the course
of the interaction with the defendant, and so, under Heck v.
Humphrey, 512 U.S. 477 (1994), precludes an excessive
force claim for damages under 42 U.S.C. § 1983.
But the jury instructions in this case were flatly
inconsistent with that version of what a section 148(a)(1)
conviction connotes. Lemos’s jury was instructed that there

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LEMOS V. COUNTY OF S ONOMA 19
were four possible factual bases on which it could convict
Lemos, and that it could “not find the defendant guilty unless
you all agree that the People have proved that the defendant
committed at least one of the alleged acts of resisting,
obstructing, or delaying a peace officer who was lawfully
performing his or her duties, and you all agree on which act
the defendant committed.” (emphasis added). Three of the
factual bases pertained to acts not at issue in Lemos’s
section 1983 claim. Success on her section 1983 claim
therefore does not necessarily imply that her conviction is
invalid.
In concluding nonetheless that Heck bars Lemos’s
excessive force claim, the majority fundamentally errs.
Neither California law nor Ninth Circuit precedent supports
or requires this result. And it is likely to encourage the very
sort of police overreaction to minor criminal behavior that
has led to public outcry and calls for reform in recent years.
I emphatically dissent.
I.
Here are the relevant facts, viewed, as we must view
them on review of a summary judgment order, in the light
most favorable to Gabrielle Lemos, the non-moving party,
see Tuuamalemalo v. Greene, 946 F.3d 471, 476 (9th Cir.
2019):
On June 13, 2015, Gabrielle Lemos’s family had thrown
a party at their home celebrating her graduation from high
school. Around 11:00 p.m. that same day, Lemos’s sister,
Karli Labruzzi, returned to the family home with her
boyfriend, Darien Balestrini, to retrieve her cell phone.
Balestrini’s truck was parked on the two-lane road in front
of the house, blocking one lane of traffic, when Sheriff’s
Deputy Holton drove by on patrol. Holton testified that he

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20 LEMOS V. COUNTY OF S ONOMA
heard yelling, including a woman’s voice “saying they’re
fighting or there’s some type of fight.” He decided to
investigate, activating his body camera.
Holton first spoke with the driver, Balestrini. Balestrini
explained calmly that his girlfriend, Labruzzi, was drunk,
had misplaced her cell phone, and was crying; he denied that
anyone had been fighting. Holton next walked toward the
passenger side of the truck where Labruzzi was seated, to
investigate whether there had been any domestic violence or
a “domestic related incident.” According to Holton, a
“domestic related incident is just an argument between
people who have an established relationship, say a
boyfriend/girlfriend, husband and wife, established
relationship, they have argument, but there’s no crime
committed.” Lemos, her mother Michelle, and her sister
were standing near the passenger door when Holton
approached. Holton asked the three women to step away
from the vehicle so that he could speak with Labruzzi.
At that point, Labruzzi leaned out of the passenger
window with her cell phone and stated that she had lost her
phone and that there was no fight. Holton then opened the
passenger door to see whether Labruzzi had any weapons or
visible injuries on her body. Lemos loudly said, “Officer,
what are you doing? You’re not allowed to do that,” and
stepped between Holton and her sister. With his right hand
Holton pushed Lemos away from him.
As Lemos and her mother continued to protest that
Holton was not allowed to go into the car without a warrant,
Holton closed the passenger door. He later testified that by
this time he had decided to arrest Lemos, but he did not
announce that intention. Instead, he attempted to grab
Lemos, but her mother and sister shielded her, repeatedly
shouting, “What are you doing?” and “Leave her alone!”

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LEMOS V. COUNTY OF S ONOMA 21
Holton drew his Taser and pointed it at the women, yelling
that they should calm down because he was “investigating
something.” But the mother and daughters continued to
protest, so Holton called for backup. Deputy Dillion arrived
a short time later, and several other officers arrived after that.
Around when Dillion arrived, Holton asked Lemos’s
mother to speak with him away from the group. She
followed him but continued to object, telling Holton,
“You’re not touching my kid again.” When Holton repeated
that he was investigating something, Lemos’s mother
reiterated that there was no “domestic” for him to investigate
and complained that he had grabbed her daughter. She then
returned to the group.
Dillion began talking to Lemos and her sister while
Holton and Lemos’s mother spoke separately. Lemos was
cooperative and calm as she and her sister spoke to Dillion.
She told her mother to calm down so that they could listen
to Dillion. Lemos explained to Dillion that her family was
upset because they believed Holton had assaulted her when
he pushed her away from the car door, and she listened to
Dillion’s response.
As Dillion continued speaking to Lemos’s sister, their
mother told Lemos to go into the house. Following her
mother’s advice, Lemos walked toward the house. Still not
announcing an intention to arrest Lemos, Holton ran after
Lemos, saying, “Hey, come here. Hey,” and grabbed her left
wrist. At the time, Lemos was eighteen years old, five feet
tall, and weighed 105 pounds; Holton weighed
approximately 250 pounds. When she twisted away from
him, Lemos asserts, Holton “grabbed [her] by the back of the
neck, picked her up off the ground, threw her into the ground
face-first, and rubbed her face into the gravel.” As Lemos
and her family screamed, Holton pinned Lemos facedown

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22 LEMOS V. COUNTY OF S ONOMA
on the ground and handcuffed her hands behind her back.
Lemos’s mother tried to pull Holton off Lemos but Dillion
moved her mother away.
Holton then—finally—announced that Lemos was
“under arrest for interfering,” and took her to a patrol car.
Her face was bloodied, and she was later taken to the hospital
in an ambulance. Lemos incurred “thousands of dollars in
medical expenses and was unable to leave her house for over
a month following these events.”
The District Attorney initially declined to prosecute
Lemos. After this excessive force suit was filed, however,
Lemos was charged with a violation of California Penal
Code section 148(a)(1). The criminal case was tried to a jury.
The jury was instructed that Lemos was alleged to have
committed four acts of resistance, delay, or obstruction, so
there were four possible factual bases for concluding that
Lemos had violated section 148(a)(1). Those four
alternatives, the jury was told, were that Lemos:
1. made physical contact with the Deputy as
he was trying to open the truck door;
2. placed herself between the Deputy and
Ms. Labruzzi;
3. blocked [the] deputy from opening the
truck door and seeing or speaking with
Ms. Labruzzi;
4. pulled away when [the Deputy] attempted
to grab her.

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LEMOS V. COUNTY OF S ONOMA 23
The jury was further instructed:
You may not find the defendant guilty unless
you all agree that the People have proved that
the defendant committed at least one of the
alleged acts of resisting, obstructing, or
delaying a peace officer who was lawfully
performing his or her duties, and you all
agree on which act the defendant committed.
(Emphasis added.) The jury returned a verdict of guilty on a
general verdict form; it did not indicate which act or acts
formed the basis for the conviction.
The district court granted summary judgment to the
officers on Lemos’s excessive force claim, concluding that,
as a result of her criminal conviction, her section 1983 claim
was barred under Heck v. Humphrey, 512 U.S. 477 (1994).
II.
A. Heck Framework
Heck held that a plaintiff may not use a civil suit under
section 1983 to attack collaterally the validity of a criminal
conviction that arises out of the same underlying facts.
512 U.S. at 486–87. If success on the section 1983 claim
“would necessarily imply the invalidity” of the conviction,
the claim is barred under Heck. Id. at 487 (emphasis added).1
1 This bar does not apply if “the conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared invalid
by a state tribunal authorized to make such determination, or called into
question by a federal court’s issuance of a writ of habeas corpus.” Id.
at 486–87. Lemos does not contend that her conviction has been

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24 LEMOS V. COUNTY OF S ONOMA
Lemos was convicted of violating California Penal Code
section 148(a)(1), a misdemeanor. A section 148(a)(1)
violation is often referred to as “resisting arrest,” but—
importantly for this case—it encompasses more than that
shorthand suggests. A person violates section 148(a)(1) if
she “willfully resists, delays, or obstructs any . . . peace
officer . . . in the discharge or attempt to discharge any duty
of his or her office.” Cal. Penal Code § 148(a)(1). Under the
statute, then, resistance is not required for a conviction, nor
need the offense occur in the course of an arrest.
As a matter of California law, a conviction on a section
148(a)(1) charge establishes that there was a valid basis for
the arrest, i.e., the arrest was lawful. A conviction under
section 148(a)(1) “requires that the officer be lawfully
engaged in the performance of his or her duties” at the time
the arrestee resists, obstructs, or delays the officer. Yount v.
City of Sacramento, 43 Cal. 4th 885, 894 (2008). So, as we
have recognized, “[i]n California, the lawfulness of the
officer’s conduct is an essential element of the offense of
resisting, delaying, or obstructing a peace officer.” Smith v.
City of Hemet, 394 F.3d 689, 695 (9th Cir. 2005) (en banc).
The use of excessive force in an investigatory stop or during
an arrest violates the Fourth Amendment’s protection
“‘against unreasonable . . . seizures’ of the person.” Graham
v. Connor, 490 U.S. 386, 394 (1989) (alteration in original)
(quoting U.S. Const. amend IV).
Critically, and, contrary to the majority’s assertion, Maj.
Op. at 13, whether it follows the defendant’s plea or a jury’s
verdict, a single section 148(a)(1) conviction cannot
establish that all of an officer’s conduct throughout an
invalidated, reversed, expunged, or impugned by the grant of a writ of
habeas corpus.

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LEMOS V. COUNTY OF S ONOMA 25
extended interaction with the arrestee was lawful. More
specifically, a section 148(a)(1) conviction does not
necessarily establish that force used by an officer prior to or
after a section 148(a)(1) arrest was reasonable and so not
excessive. The California Supreme Court in Yount, 43 Cal.
4th 885, interpreting California law, has so held, explaining
that if a defendant “resist[s] a lawful arrest” and the officers
“respond with excessive force to subdue him,” then
[t]he subsequent use of excessive force
would not negate the lawfulness of the initial
arrest attempt, or negate the unlawfulness of
the criminal defendant’s attempt to resist it.
Though occurring in one continuous chain of
events, two isolated factual contexts would
exist, [with only] the first giving rise to
criminal liability on the part of the criminal
defendant . . . .
Id. at 899 (quoting Jones v. Marcum, 197 F. Supp. 2d 991,
1005 n.9 (S.D. Ohio 2002)). In other words, “a conviction
under § 148(a)(1) can be valid even if, during a single
continuous chain of events, some of the officer’s conduct
was unlawful.” Hooper v. County of San Diego, 629 F.3d
1127, 1131 (9th Cir. 2011) (citing Yount, 43 Cal. 4th 885).
In reaching this conclusion, Yount rejected Susag v. City of
Lake Forest, 94 Cal. App. 4th 1401 (Cal. Ct. App. 2002),
“which had . . . viewed the plaintiff’s criminal conviction as
encompassing all of the acts of resistance supported by the
evidence.” Yount, 43 Cal. 4th at 888–89. Under Yount, then,
if an officer engages in lawful conduct supporting a section
148(a)(1) conviction and, separately, applies excessive
force, the conviction remains valid. See id. at 899. Where
that is the case, a finding of excessive force in a civil § 1983
action would only “necessarily imply the invalidity of the

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26 LEMOS V. COUNTY OF S ONOMA
convictions,” Heck, 512 U.S. at 487, and so, under Heck,
preclude § 1983 liability if the excessive force claim
pertained to the part of the interaction between the criminal
defendant/civil suit plaintiff and the officer being sued for
damages that involved lawful police conduct.
Application of Heck in this context is complicated when,
as here, there were several possible factual bases for the
section 148(a)(1) conviction, i.e., more than one alleged act
of resistance, delay, or obstruction, but it is not clear from
the record which particular act or acts form the basis of the
conviction. Because the Heck bar applies only when a
section 1983 claim “would necessarily imply the invalidity”
of the conviction and not if it only might imply the
conviction’s invalidity, id. (emphasis added), the Heck bar
does not apply unless the conduct challenged in the
excessive force suit is necessarily the same conduct found
lawful in the section 148(a)(1) conviction. See Smith,
394 F.3d at 699; Hooper, 629 F.3d at 1134.
Thus, to determine whether a plaintiff’s conviction for
resisting arrest bars her excessive force claim under Heck,
our case law instructs that we must examine the record
regarding the factual basis for the conviction. See, e.g.,
Smith, 394 F.3d at 699; Hooper, 629 F.3d at 1134. Three key
Ninth Circuit decisions—Smith and Hooper, which held that
there was no Heck bar, and Beets v. County of Los Angeles,
669 F.3d 1038 (9th Cir. 2012), which held that there was—
illustrate how this precept works in practice.
In Smith, the plaintiff refused police orders to take his
hands out of his pockets, put them on his head, and turn
around. 394 F.3d at 693–94. Smith subsequently physically
resisted arrest, and police used physical force to subdue him:
the officers ordered a police dog to bite Smith three times
and pepper-sprayed him four times. Id. at 694. Smith pleaded

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LEMOS V. COUNTY OF S ONOMA 27
guilty to the section 148(a)(1) violation, but “there [was] no
information as to which of his actions constituted the basis
for his plea.” Id. at 698. Addressing this information
vacuum, Smith concluded that “[b]ecause on the record
before us we cannot determine that the actions that underlay
Smith’s conviction upon his plea of guilty occurred at the
time of or during the course of his unlawful arrest, Smith’s
success in the present action would not necessarily impugn
his conviction.” Id. at 699.
Turning to Hooper: In that case, the plaintiff “jerked her
hand away” from an officer as he attempted to handcuff her.
629 F.3d at 1129. She then physically resisted until both she
and the officer were on the ground and the officer had
secured her hands behind her back. See id. After she had
stopped physically resisting, a police dog, on the officer’s
command, bit Hooper’s head, causing significant damage to
her scalp. Id. Hooper pleaded guilty to a violation of section
148(a)(1). Id.
Hooper held the Heck bar inapplicable, because “holding
in Hooper’s § 1983 case that the use of the dog was
excessive force would not ‘negate the lawfulness of the
initial arrest attempt, or negate the unlawfulness of
[Hooper’s] attempt to resist it [when she jerked her hand
away from Deputy Terrell].’” Id. at 1133 (alterations in
original) (quoting Yount, 43 Cal. 4th at 899). Hooper reached
this result although the entire incident “took place . . . in a
span of 45 seconds.” Id. at 1129.
Finally, in Beets, the plaintiffs alleged excessive force by
a police officer who shot their son, Glenn Rose. 669 F.3d
at 1040. Rose drove a truck “rapidly in the direction of” the
officer, who, “fearing for his life, fired at [Rose] and killed
him.” Id. Rose’s companion, a passenger in the truck, was
convicted of assaulting the officer with a deadly weapon, on

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28 LEMOS V. COUNTY OF S ONOMA
the theory that she had aided and abetted Rose. Id. The
criminal jury was instructed that the lawfulness of the
officer’s actions was an element of the crime, so it could not
convict unless it found that the officer was not using
excessive force at the time of the assault with a deadly
weapon (the truck). Id. at 1041. Holding the conviction
barred the excessive force claim under Heck, Beets
determined that on the facts before the court in that case,
“there are not multiple factual bases for [the] conviction,” so
the jury’s verdict necessarily established that the only use of
force at issue (i.e., the officer’s shooting Rose) was not
excessive. 669 F.3d at 1045.
Beets also briefly asserted, quoting Smith, that, as a
matter of California law, a jury verdict necessarily
determines that all of the officer’s conduct must have been
lawful. 669 F.3d at 1045 (citing Smith, 394 F.3d at 699 n.5).2
But Beets is clear that “there [were] not multiple factual
bases for [the] conviction,” so the jury considered the
lawfulness of only one action by the officer in reaching its
verdict on the charge of assault on an officer with a deadly
weapon. See 669 F.3d at 1045. In that circumstance, the jury
did necessarily find lawful all of the officer’s conduct that it
considered, and Beets’s recitation of Smith’s summary of
California law was essentially an aside. And that recitation
is in any event not relevant here, where the criminal jury was
instructed precisely contrary to Smith’s and Beets’s
descriptions of the scope of a section 148(a)(1) jury
conviction.
2 At the time of the Beets decision, the Ninth Circuit had already
recognized that this was an inaccurate description of current, post-Smith
California law. See Hooper, 629 F.3d at 1131–32. See pp. 33–36, infra,
discussing this aspect of Beets.

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LEMOS V. COUNTY OF S ONOMA 29
In sum, the Heck bar does not apply if the record leaves
open the possibility that the officer’s lawful conduct
supporting the section 148(a)(1) conviction is different from
the officer’s alleged unlawful application of excessive force,
see Smith, 394 F.3d at 699; or that the officer used some
force that was reasonable and some force that was excessive,
see Hooper, 629 F.3d at 1134. The excessive force claim is
barred if the record conclusively establishes that the
conviction and the section 1983 claim are based on the same
actions by the officer, as in Beets. See 669 F.3d at 1045.
B. Application of Heck in this case
Under this framework, Heck does not bar Lemos’s claim
that Holton used excessive force when he threw her to the
ground and rubbed her face into the gravel. As instructed,
the jury’s verdict could well have been based on Lemos’s
obstruction (and Holton’s corresponding lawful actions) six
minutes earlier, when Lemos inserted herself between
Holton and the passenger door.
Again, the jury here was specifically instructed as to four
possible acts of resistance, delay, or obstruction by Lemos
that could support a section 148(a)(1) conviction. The first
three potential bases for the conviction were that Lemos
“1. made physical contact with the Deputy as he was trying
to open the truck door; 2. placed herself between the Deputy
and Ms. Labruzzi; 3. blocked [the] deputy from opening the
truck door and seeing or speaking with Ms. Labruzzi.”
Holton is not alleged in this case to have used excessive force
at any of those times. And although none of those incidents
involved an arrest, section 148(a)(1), I repeat, covers
obstructing or delaying a lawful investigation, which is what
was alleged with regard to the first three incidents the jury
was asked to consider. Only the fourth potential basis for the
conviction involved the same incident as Lemos’s section

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30 LEMOS V. COUNTY OF S ONOMA
1983 excessive force claim: “4. [Lemos] pulled away when
[the Deputy] attempted to grab her,” before she was taken to
the ground, handcuffed, and, finally, arrested. The jury was
further instructed that it could not render a verdict of guilty
unless it unanimously agreed that Lemos had “committed at
least one of the alleged acts,” and it also “all . . . agree[d] on
which act the defendant committed.”
Thus, it is simply not true that the criminal jury in this
case necessarily concluded that all of the officer’s conduct,
including the force used when she was grabbed on the way
to her house, taken to the ground, and injured, was lawful—
that is, not excessive. The jury, based on the instructions
given, could have unanimously decided to convict because
of Lemos’s actions while she was at the car attempting to
prevent Holton from interacting with Ms. Labruzzi.
Whether the instructions given should have been
otherwise, as the outdated discussion in Smith, repeated in
Beets, would indicate, simply does not matter. The analysis
appropriate under Heck depends on what the jury verdict
necessarily actually determined. Here, the criminal jury was
instructed to look at the twelve-minute set of events
discretely, not as a whole. And the jury was specifically
allowed to convict Lemos under § 148(a)(1) even if it
thought Holton’s actions at the time he tackled her to the
ground as she was walking to the house were unlawful
because the force used was excessive.
It is worth noting—although not directly relevant to the
Heck analysis—that, if anything, a conviction on one or all
of the first three incidents sent to the jury is more likely than
on the fourth. The first three incidents involved little force
by Holton but did, on the officers’ version, present evidence
of actual interference with Holton’s investigation. The
incident on which this case centers, in which Lemos was, on

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LEMOS V. COUNTY OF S ONOMA 31
the mother’s advice, trying to leave a contentious situation,
did not stop as soon as told to do so, and was physically
wrestled to the ground and injured by a police officer, is a
poor candidate for a unanimous jury conclusion that she was
resisting lawful police activity.
So, on the facts and very specific instructions given the
jury here regarding discrete bases for conviction, the Heck
bar does not apply. As in Hooper, a “holding in [Lemos’s]
§ 1983 case that the [takedown] was excessive force would
not ‘negate the lawfulness of the initial [investigation at the
car door], or negate the unlawfulness of [Lemos’s] attempt
to [obstruct that investigation].’” 629 F.3d at 1133 (quoting
Yount, 43 Cal. 4th at 899). And, just as in Smith, the record
does not establish that Lemos’s conviction was based on any
particular one or combination of the four alleged acts. See
394 F.3d at 698. Thus, “[b]ecause we are unable to
determine ‘the factual basis for [Lemos’s conviction],’ [her]
lawsuit does not necessarily imply the invalidity of [her]
conviction and is therefore not barred by Heck.” Smith,
394 F.3d at 698 (quoting Heck, 512 U.S. at 487).
C. Majority’s Error
The majority’s fundamental error in reaching the
opposite conclusion is that it ignores the critical distinction
between the criminal case underlying Beets and the
conviction here. That distinction, of course, is that here,
there was an instruction to the jury that it should not regard
every interaction between Holton and Lemos that fateful
night in June as a single incident, but instead should
distinguish among them, unanimously. In Beets, in contrast,
there was one interaction only in dispute, and no indication
the criminal jury was asked to distinguish that incident from
any other.

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32 LEMOS V. COUNTY OF S ONOMA
The majority substitutes for this determinative
circumstance the assertion that because the criminal case
underlying the Heck bar argument was decided by a jury and
not by a guilty plea, the conviction necessarily establishes,
as a matter of California law, that all of Deputy Holton’s
conduct throughout his twelve-minute interaction with
Lemos and her family was deemed lawful. Maj. Op. at 10,
12–13. The distinction between a section 148(a)(1)
conviction based on a jury’s verdict—apparently any jury
verdict, including one in which the jury was specifically told
to distinguish between four interactions and decide which
involved obstruction of lawful police action—and one based
on a plea cannot possibly bear the weight assigned to it by
the majority.
The majority concludes, for example, that “Lemos’
resistance was clearly viewed by her trial jury as continuous
throughout the entire transaction of events leading up to and
including all subsequent physical contacts with the arresting
deputy.” Maj. Op. at 12–13. How could we possibly know
that, when the jury was instructed that it should not take that
approach? We have no evidence of how the jury evaluated
each of the four bases for conviction it was told
independently to consider. All we know is that it
unanimously concluded that Lemos had committed at least
one of the four alleged acts of resistance, delay, or
obstruction, and so entered a verdict of guilty on a general
verdict form. In fact, the best evidence of what actually
occurred—the officers’ body-worn camera footage—reveals
that for several minutes between the incident at the car door
and Lemos’s eventual arrest, Lemos was cooperative and
calm as she spoke to Deputy Dillion. This evidence is plainly
inconsistent with the majority’s unfounded conclusion that
the jury must have found that Lemos resisted continuously
“throughout the encounter.” Maj. Op. at 13.

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LEMOS V. COUNTY OF S ONOMA 33
Nor did Beets and Smith announce the rule the majority
posits—that whatever a jury is instructed to decide, the legal
effect of a section 148(a)(1) conviction is always that the
jury found all of the officer’s conduct to be lawful. The key
language that appears in Smith and Beets assumes
instructions according with an outdated statement of
California law, as Hooper explained. See Hooper, 629 F.3d
at 1132. But even if that statement of law were accurate, the
language contained in a footnote in Smith and repeated in
Beets (in both instances, as explained earlier, in discussions
unconnected to the facts of the case) is inapplicable to the
facts of this case by its own terms.
The language in Beets on which the majority relies is a
direct quote from a footnote in the Ninth Circuit’s 2005 en
banc decision in Smith:
Where a defendant is charged with a single-
act offense but there are multiple acts
involved each of which could serve as the
basis for a conviction, a jury does not
determine which specific act or acts form the
basis for the conviction. See People v.
McIntyre, 115 Cal. App. 3d 899, 910–11
(Cal. Ct. App. 1981) (“It is only incumbent
that [the jury] agree [a culpable act] occurred
on that date, the exact time or sequence in
relation to the[offense] is not material.”)
(citation omitted). Thus, a jury’s verdict
necessarily determines the lawfulness of the
officers’ actions throughout the whole course
of the defendant’s conduct, and any action
alleging the use of excessive force would
“necessarily imply the invalidity of his

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34 LEMOS V. COUNTY OF S ONOMA
conviction.” Susag, 94 Cal. App. 4th at 1410
(emphasis added).
Smith, 394 F.3d at 699 n.5 (alterations in the original); see
also Beets, 669 F.3d at 1045 (quoting Smith, 394 F.3d at 699
n.5).
But the application of the Heck bar to this case does not
depend on the abstract contours of California law. What
matters instead is the specific instructions provided to
Lemos’s jury. Once more, those instructions told the jury to
determine, unanimously, that at least one of four specific,
disparate acts served as the basis for conviction. Smith’s
assertion that under then-California law the jury did not
make such a determination simply does not apply to a
situation in which the jury was explicitly told to do so.
Although my analysis could stop there, I note that Yount
and Hooper, both decided after Smith, explain why Lemos’s
jury may have been instructed in such a manner and also
suggest that Smith and Beets do not correctly state current
California law. Yount distinguished Susag, on which Smith
relied, “which had . . . viewed the plaintiff’s criminal
conviction as encompassing all of the acts of resistance
supported by the evidence.” 43 Cal. 4th at 888. Yount
concluded instead that a conviction for resisting arrest did
not establish that all of the officer’s actions were necessarily
lawful. See id. at 889. As noted previously, the court clarified
that “[t]hough occurring in one continuous chain of events,
two isolated factual contexts [c]ould exist, the first giving
rise to criminal liability on the part of the criminal defendant,
and the second giving rise to civil liability on the part of the
arresting officer.” Id. at 899 (quoting Jones, 197 F. Supp. 2d
at 178).

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LEMOS V. COUNTY OF S ONOMA 35
We evaluated Yount’s effect on Smith in Hooper, in
2011, in which we explained that “Yount does not mean that
our holding in Smith was wrong. But it does mean that our
understanding of § 148(a)(1) was wrong.” 629 F.3d at 1132.
Under Yount’s reading of the statute, “[i]t is sufficient for a
valid conviction under § 148(a)(1) that at some time during
a ‘continuous transaction’ an individual resisted, delayed, or
obstructed an officer when the officer was acting lawfully. It
does not matter that the officer might also, at some other time
during that same ‘continuous transaction,’ have acted
unlawfully.” Id.
Beets’s subsequent reliance on the Smith footnote is in
tension with Hooper and Yount and is almost surely no
longer a correct statement of California law. But, crucially,
the jury instructions in this case distinguish it from Beets and
Smith regardless of the legally correct interpretation of
California law as applied to section 148(a)(1). What matters
here is that the instructions actually given to the jury in
Lemos’s criminal case directed the jury to convict if it
unanimously concluded that during one—not all—of the
four specified incidents Lemos resisted, delayed, or
obstructed a lawful action by Holton.3 Whether those
3 For its interpretation of California law, Smith relied on the
statement that, under applicable law, “[i]t is only incumbent that the jury
agree a culpable act occurred on that date[;] the exact time or sequence
in relation to the offense is not material.” Smith, 394 F.3d at 699 n.5
(quoting McIntyre, 115 Cal. App. 3d at 910–11 (alterations adopted)).
But McIntyre stands for a narrower rule than the language quoted in
Smith might suggest.
McIntyre affirmed that the standard California jury instruction on
jury unanimity, which requires that “in order to find the defendant guilty,
all the jurors must agree that he committed the same act or acts,” is
correct. 115 Cal. App. 3d at 908 (quoting Cal. Jury Instr. No. 17.01).

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36 LEMOS V. COUNTY OF S ONOMA
instructions properly reflected California law (they did, as
explained) is of no moment in our determination of what the
criminal jury necessarily decided, which is the core of the
Heck inquiry.
Additionally, California law does not assign any
significance to whether a conviction is based on a plea or a
jury verdict. Echoing Judge Watford’s analysis in a similar
case, “I can’t think of any reason why the analysis under
Heck should proceed differently for convictions resulting
from a jury verdict as opposed to a guilty plea, and neither
Smith nor Beets offered any justification for that distinction.”
Wilson v. City of Long Beach, 567 F. App’x 485, 487 (9th
Cir. 2014) (mem.) (Watford, J., dissenting).
In short, under the specific jury instructions here, as
under the plea agreement discussed in Smith, “it is not
necessarily the case that the factual basis for [Lemos’s]
conviction included the whole course of [her] conduct.”
394 F.3d at 699 n.5. The Heck bar therefore does not apply.
III.
The practical result of the majority’s holding is that
people who are subjected to excessive force by officials in
California, who want to hold those officers to account, and
who are charged with misdemeanor resisting arrest under
McIntyre held only that it was not error to omit the instruction in a case
in which the acts constituting the charged crime were part of a continuous
course of conduct. See id. at 910; see also People v. Muniz, 213 Cal. App.
3d 1508, 1518–19 (Cal. Ct. App. 1989) (citing McIntyre, 115 Cal. App.
3d at 910). The instruction in Lemos’s case is substantively the same one
that the California court in McIntyre quoted with approval for cases that
do not involve only one continuous course of conduct. See 115 Cal. App.
3d at 908.

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LEMOS V. COUNTY OF S ONOMA 37
section 148(a)(1) must choose between holding the state to
its burden on the criminal charge in a criminal trial and the
opportunity to vindicate their rights by bringing an excessive
force case. Under the majority’s opinion, the only way to
guarantee that an excessive force claim is not forfeited by a
jury’s verdict is to plead guilty on the criminal charge. The
Constitution forbids police from using excessive force, and
section 1983 provides an avenue to vindicate that right. The
majority’s opinion undercuts these protections. Because it is
unjust and contrary to our case law, I dissent.

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