People v. Corey

• Decision Date: 31 July 1978
• Docket Number: Cr. 20258
• Citation: 581 P.2d 644,147 Cal.Rptr. 639,21 Cal.3d 738
• Court: California Supreme Court
• Parties: , 581 P.2d 644 The PEOPLE, Plaintiff and Respondent, v. Sandra COREY, Defendant and Appellant.

Page 639

147 Cal.Rptr. 639

21 Cal.3d 738, 581 P.2d 644

The PEOPLE, Plaintiff and Respondent, v. Sandra COREY, Defendant and Appellant.

Cr. 20258.

Supreme Court of California, In Bank.

July 31, 1978.

Rehearing Denied Aug. 30, 1978.

Paul Halvonik, State Public Defender, Gary S. Goodpaster, Chief Asst. State Public Defender, David M. Blackman and Stephen Berlin, Deputy State Public Defenders, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O Overoye, Asst. Atty. Gen., Joel E. Carey and Robert D. Marshall, Deputy Attys. Gen., for plaintiff and respondent.

MANUEL, Justice.

Defendant Sandra Corey appeals from an order granting probation entered after a jury convicted her of committing a battery on a peace officer in violation of Penal Code sections 242 and 243. Defendant was placed on three years' probation, and as a condition of probation was ordered to spend sixty days in the county jail. Execution of the order of imprisonment was stayed pending the outcome of the present appeal.

The battery committed by defendant occurred in December 1976 at a public dance sponsored by a private association and held at Cal Expo in Sacramento. Howard Anderson, a police officer of the City of Sacramento was employed during his off-duty hours to provide security for the dance. He was paid for his services by the private association, but wore his regular police uniform and was fully armed. Anderson was assigned to the balcony area of the building with orders from the association to keep out people who either had no tickets or who had left the dance and sought readmission after midnight.

Shortly after midnight, defendant and her sister asked Anderson to let them back into the dance, but Anderson refused their request in accordance with the instructions from his employer. Thereafter, when Anderson opened the door to permit several couples to leave the dance, defendant and her sister rushed past him into the building. Anderson grabbed defendant by the arm intending to walk her back outside. Defendant began to yell, and when Anderson momentarily looked away, defendant struck him in the head with the shoes she was carrying. Defendant attempted to strike Anderson in the head again, but he was able to deflect this blow with his hand, sustaining a broken finger as a result. Anderson then sprayed chemical mace on defendant, who struggled free from his grip and ran into the crowd. Shortly thereafter, Anderson overtook defendant on a ramp leading away from the dance hall, and placed her under arrest for assaulting him. She physically resisted, and began kicking at him, and Anderson again sprayed her with mace. Defendant was then handcuffed and was eventually taken to police headquarters.

Defendant's primary contention on appeal is that since, as a matter of law, an off-duty police officer who is acting within the scope of his employment as a private security guard is not a peace officer engaged in the performance of his duties within the meaning of Penal Code section 243, the evidence is insufficient to support her conviction of battery on a peace officer. We have concluded that this contention is meritorious and that the order should be reversed.

Penal Code section 243 provides in relevant part that a battery "(w)hen it is committed against the person of a peace officer . . . and the person committing the offense knows or reasonably should know that such victim is a peace officer . . . engaged in the performance of his duties, and such peace officer . . . is engaged in the performance of his duties . . . (is punishable) by imprisonment in the county jail not exceeding one year or by imprisonment in the state prison . . .. As used in this section, 'peace officer' refers to any person designated as a peace officer by Section 830.1 . . .."

Penal Code section 830.1 provides in relevant part that "Any sheriff, undersheriff, or deputy sheriff, regularly employed and paid as such, of a county, Any policeman of a city, any policeman of a district authorized by statute to maintain a police department, any marshall or deputy marshall of a municipal court, or any constable or deputy constable, regularly employed and paid as such, of a judicial district . . . is a peace officer. . . . " (Emphasis added.)

Defendant contends that the phrase "regularly employed and paid as such" modifies the phrase "any policeman of a city," thereby precluding from this category off-duty municipal police officers when they perform services for private compensation outside the scope of their regular police employment. It is a general rule of statutory construction, however, that " 'modifying phrases are to be applied to the words immediately preceding them and are not to be construed as extending to more remote phrases.' (City of Santa Barbara v. Maher, 25 Cal.App.2d 325, 327, 77 P.2d 306, 307 and cases there cited.)" (Watkins v. Real Estate Commissioner (1960) 182 Cal.App.2d 397, 399, 6 Cal.Rptr. 191, 193.) An exception to this rule provides that " '(w)hen several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be applicable to all'." (Wholesale Tobacco Dealers Bureau v. National etc. Co. (1938) 11 Cal.2d 634, 659, 82 P.2d 3, 17.) The exception does not, however, appear applicable here. City police officers are normally "regularly employed and paid as such," whereas deputy sheriffs and deputy constables may serve in that capacity, particularly in small counties, on an irregular basis. Thus, the clause "regularly employed and paid as such," is not applicable as much to the phrase "city policeman," as it is to the phrases that the clause immediately follows. We therefore conclude that at the time of the battery, Howard Anderson, a city police officer, was technically a peace officer as defined by Penal Code section 830.1. In order for such a peace officer to come within the ambit of Penal Code section 243, however, that peace officer must be actually engaged in the performance of his duties (People v. Soto (1969) 276 Cal.App.2d 81, 85, 80 Cal.Rptr. 627), and must actually or reasonably be known by the accused to be acting in that capacity. We must therefore determine whether the Legislature intended to include peace officers who are acting within the scope of their private employment as security guards within the meaning of peace officers who are engaged in the performance of their duties, as contemplated in Penal Code section 243.

Under general rules of statutory construction we may, in construing a statute, consider other statutes that might bear on the meaning of the statute at issue. (See People v. Ruster (1976) 16 Cal.3d 690, 696, 129 Cal.Rptr. 153, 548 P.2d 353.) In this regard, we consider the Private Investigator and Adjuster Act (PIAA) (Bus. & Prof.Code, § 7500 et seq.) to be particularly germane. This comprehensive act regulates the occupations of private investigator and private patrol operators and similar pursuits. A private patrol operator is defined in section 7521 of the act as "a person who, for any consideration whatsoever: Agrees to furnish, or furnishes, a watchman, guard, patrolman, or other person To protect persons or property or to prevent the theft, unlawful taking, loss, embezzlement, misappropriation, or concealment of any goods, wares, merchandise, money, bonds, stocks, notes, documents, papers, or property of any kind; Or performs the service of such watchman, guard, patrolman, or other person, for any of said purposes." (Emphasis added.) Private patrol operators must be licensed (§ 7520), and they and their employees must comply with the various regulatory provisions of the PIAA. These regulatory provisions reflect an intent of the Legislature in enacting PIAA to eliminate to the extent possible public confusion between private patrol operators and local law enforcement officers. This intent is clearly demonstrated by the provision in section 7538, subdivision (e) which states in relevant part that "No licensee . . . or employee of a licensee, shall use a title, Or wear a uniform, or use an insignia, or use an identification card, Or make any statement with the intent to give an impression that he is connected in any way with . . . Any political subdivision of a state government." (Emphasis added.) (See also section 7514.2 which authorizes cities and counties to regulate the uniforms worn by uniformed employees of private patrol operators and the vehicles used by them so as to make them clearly distinguishable from those uniforms worn by and the vehicles used by, Local regular law enforcement officers.)

It is apparent from section 7538, subdivision (e) that if a peace officer is subject to regulation under PIAA when he is employed during his off-duty hours as a security guard, he would be prohibited, when acting within the scope of this private employment, from wearing his police uniform or from indicating in any way that he is a police officer. Thus, although an off-duty police officer may perform various acts in his private capacity as a security guard which may coincide with his duties as a peace officer, it is clear that in so doing, provided that he is subject to PIAA, he cannot give the appearance of being a police officer. Therefore, since members of the public could not reasonably know, unless he violated that act, that he was actually a peace officer and acting within his official capacity, it would be absurd to say that he was engaged in the performance of his duties as such for the purposes of Penal Code section 243. We must therefore determine whether the Legislature intended to make off-duty peace officers employed as private security guards or patrolmen subject to the regulations of PIAA.

The only exemptions from regulation under PIAA are enumerated in Business and Professions Code section 7522. Subdivision (b) as amended in ...