People v. Pennington
Decision Date | 17 August 2017 |
Docket Number | S222227 |
Citation | 221 Cal.Rptr.3d 448,3 Cal.5th 786,400 P.3d 14 |
Court | California Supreme Court |
Parties | The PEOPLE, Plaintiff and Respondent, v. Bryan M. PENNINGTON, Defendant and Appellant. |
Mark R. Feeser, San Luis Obispo, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson, Michael R. Johnsen, Victoria B. Wilson and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
Werdegar, J.Defendant was convicted of misdemeanor battery ( Pen. Code, § 242 )1 of a person listed in section 243, subdivision (b), specifically a "peace officer" (ibid. ). We granted review to decide whether the People proved the victim, a member of the City of Santa Barbara harbor patrol, was in fact a peace officer. Unlike most municipal police officers and deputy sheriffs, who are peace officers by virtue of their appointment and employment in that capacity (see § 830.1, subd. (a)), not all harbor patrol officers are peace officers. Instead, harbor patrol officers are peace officers only if their "primary duty ... is the enforcement of the law in or about the properties owned, operated, or administered by the harbor or port or when performing necessary duties with respect to patrons, employees, and properties of the harbor or port." (§ 830.33, subd. (b).) Agreeing with People v. Miller (2008) 164 Cal.App.4th 653, 665–668, 78 Cal.Rptr.3d 918 ( Miller ), we conclude the statutory language defines a harbor patrol officer as a peace officer only if the particular officer's primary duty is law enforcement in either of two circumstances: when acting on or about the property or when performing necessary duties anywhere in the state. The Court of Appeal below declined to follow Miller and affirmed defendant's conviction, even though the People did not prove the harbor patrol officer whom defendant battered had the required primary duty of law enforcement. We therefore reverse defendant's conviction.2
Given the narrow issue before us, the facts of the offense may be presented briefly. The case arose from an incident at a marina involving defendant Bryan M. Pennington and officers of the Santa Barbara harbor patrol, an agency of the City of Santa Barbara. Defendant, who possessed neither a keycard to the marina nor permission to enter, obtained access by grabbing a gate just before it closed and locked. A manager who recognized defendant called the harbor patrol to report the unauthorized entry.
Harbor patrol officers Richard Hubbard and Ryan Kelly responded to the call in a marked harbor patrol truck, wearing uniforms, badges, sidearms, Tasers, handcuffs, and other policing tools. The officers saw defendant near a storage box, holding a coiled hose over his shoulder. Officer Hubbard recognized defendant from a prior incident at the marina. Defendant walked towards the exit gate. Standing in defendant's path on a narrow finger of the dock, the officers asked him to stop and told him he could not leave with the hose. Defendant returned the hose to the storage box and walked back toward the exit, ignoring the officers. The officers told defendant they needed to speak with him and ordered him to stop, but he ignored the direction and attempted to force his way between them. Officer Hubbard placed his arm against defendant's chest to stop him. Defendant then stepped back, assumed a martial arts stance, forcefully kicked Officer Hubbard's upper thigh, kicked Officer Kelly's shin, and began to throw wild punches. After deploying their Tasers to no effect, the officers restrained defendant with handcuffs and took him into custody. During this time defendant directed a barrage of profanity at the officers, threatened to kill them, and said they had "better get some real cops down here." Following the protocol of the harbor patrol, which had no jail, the officers called the Santa Barbara Police Department to take defendant into custody.
Based on these facts the People charged defendant with resisting an executive officer (§ 69), battery on a listed person ( §§ 242, 243, subd. (b) [peace officer] ), trespass (§ 602, subd. (k)), and attempted petty theft (§§ 484, subd. (a), 664). The charge of battery related only to Officer Hubbard. Defendant represented himself with the assistance of advisory counsel. Trial was by jury.
Before trial, the People asked the court to rule that Santa Barbara harbor patrol officers were peace officers as a matter of law and to exclude any argument to the contrary. Defendant opposed the motion. He questioned whether harbor patrol officers were peace officers and stated he wished to examine Officer Hubbard about "his functions, his duties, how he came about to get that authority and how he's actually [administering] it." The court granted the People's motion, ruling Two of the charged offenses required proof that defendant had acted against an officer who was engaged in "the performance of his or her dut[ies]." ( §§ 69, 243, subd. (b).) For this reason, the court explained, defendant would be permitted to ask questions directed to the issue "whether the officer was performing his lawful duty, not whether or not he was an officer." But the court continued: "[W]hen we get to the point of closing argument, you can't argue that ... Officer ... Hubbard and the other folks who work for the Harbor Patrol are not peace officers within the meaning of the law, because under the law they are designated as peace officers, as I understand it."
The court's pretrial ruling eliminated the People's burden to prove Officer Hubbard was one of the listed persons who may be the victim of a battery punishable under section 243, subdivision (b). To prove the other facts essential to that charge, including that defendant "kn[e]w or reasonably should [have] know[n]" Officer Hubbard was a peace officer "engaged in the performance of his ... duties" (see § 243, subd. (b) ), the People offered the testimony of Officers Hubbard and Kelly and also that of a harbor patrol supervisor, Officer McCullough.
Officer Hubbard testified he was "currently employed as a Harbor Patrol Officer, City of Santa Barbara," had held that position for 12 years, and was a "law enforcement peace officer" with the power to arrest. Officer Hubbard had attended a peace officer orientation course, which he believed gave him "peace officer status" under section 830.33, subdivision (b).3 Officers Hubbard, Kelly and McCullough described the duties of harbor patrol officers. Officers were "trained in a number of duties" including "law enforcement officer, ... boating safety officer, emergency medical technician, marine firefighter, and ocean lifeguard," any of which duties an officer might have to perform "at any time." Officers also received training in "arrest, search and seizure, [and] firearms...." An officer's boating safety responsibilities "on an average day" involved "tow[ing] a bunch of boats broken down, nonemergency [and] emergency," and addressing problems related to "[m]arine mammals." Law enforcement duties typically concerned "things within the marina [and] the waterfront district." This involved "patrolling just like [the] P[olice] D[epartment] would patrol the city streets." Harbor patrol officers worked "under [the] umbrella" of the Santa Barbara Police Department, whose chief was their "supervisor" and also responsible for their training.
The People did not ask any witness whether Officer Hubbard's "primary duty," or that of any Santa Barbara harbor patrol officer, was "the enforcement of the law...." (§ 830.33, subd. (b).)
Before counsel presented closing arguments to the jury, the court enforced its pretrial ruling by instructing the jury that "[a] sworn member of the Santa Barbara Harbor Patrol is a peace officer ." The People likewise told the jury that Defendant, having objected unsuccessfully to the pretrial ruling, obeyed it by offering no argument to the contrary. The jury after deliberation found defendant guilty on all counts. At the sentencing hearing, the court suspended imposition of judgment and placed defendant on probation for five years, conditioned on serving one year in county jail.
Defendant appealed. Relying on Miller , supra , 164 Cal.App.4th 653, 78 Cal.Rptr.3d 918, defendant claimed the evidence introduced at trial was insufficient to prove Officer Hubbard was a peace officer because no evidence showed his primary duty was law enforcement. Defendant also contended the trial court erred by instructing the jury that members of the Santa Barbara harbor patrol were peace officers as a matter of law and by excluding argument to the contrary. In response, the People contended Miller was wrongly decided, argued the evidence was sufficient to prove Officer Hubbard was a peace officer and, while acknowledging Officer Hubbard's status "was a question of fact that should have been submitted to the jury," urged that any errors in the court's pretrial rulings and jury instructions were harmless.
The Court of Appeal affirmed the verdict. Declining to follow Miller , supra , 164 Cal.App.4th 653, 78 Cal.Rptr.3d 918, the Court of Appeal concluded a harbor patrol officer need not have the primary duty of law enforcement to be a peace officer. On this basis, the court found sufficient evidence to prove Officer Hubbard was a peace officer and held the trial court's errors in instructing the jury and restricting argument were harmless.
We granted defendant's petition for review and limited briefing and argument to the following issue: "Did the People prove that the named victim, a harbor patrol...
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