*1 20258. July No. [Crim. 1978.] PEOPLE, v.
THE Plaintiff and Respondent, COREY, SANDRA Defendant Appellant.
Counsel Halvonik, Defender,
Paul N. State Public S. Chief Gary Goodpaster, Defender, Berlin, Assistant State Public David M. Blackman and Stephen Defenders, State Public for Defendant and Deputy Appellant. General, Winkler, Evelle J. Jack R. Chief Assistant Younger, Attorney General, General, Arnold O. Assistant Joel Attorney Overoye, Attorney Marshall, General, E. and Robert D. for Carey Attorneys Deputy Plaintiff and Respondent.
Opinion
MANUEL, J.Defendant Sandra from an order Corey granting appeals entered after a convicted her of on a jury committing battery probation in violation of Penal Code 242 and 243. Defendant sections on three and as a condition of was was years’ probation, probation placed the order of Execution of ordered county jail. sixty days spend of the was the outcome present appeal. stayed pending imprisonment December 1976 at occurred in committed battery held at association and Cal dance Expo by private sponsored public Anderson, of Sacramento Sacramento. Howard City police the dance. was hours provide security employed during association, He but wore his was for his services regular paid to the and was armed. Anderson uniform fully assigned of the with orders from the association to out area keep balcony building who either had no or who had left the dance and tickets people sought after readmission midnight. *4 let after defendant and her sister asked Anderson to
Shortly midnight, dance, into the refused their them back but Anderson request Thereafter, when accordance with the instructions from his employer. dance, to leave the Anderson door several couples opened permit rushed him into the Anderson and her sister defendant building. past to walk her back outside. defendant the arm intending grabbed looked and when Anderson Defendant momentarily away, began yell, with the shoes she was him in head defendant struck carrying. he was the head but Anderson in strike Defendant again, attempted hand, a broken as with his to deflect this blow finger able sustaining defendant, who mace on then chemical Anderson result. sprayed thereafter, ran into the crowd. from his and Shortly free grip struggled from the dance on a away Anderson overtook leading ramp hall, him. She under arrest for and her assaulting physically placed him, her with Anderson and resisted and again sprayed began kicking taken to handcuffed and was mace. Defendant then police eventually headquarters. since,
Defendant’s contention on is as that a matter of primary appeal law, who an officer is within the of his scope aas is not a officer security guard peace employment engaged his duties within the of Penal Code section performance meaning evidence her conviction of is insufficient on a battery support this officer. have concluded that contention is meritorious and peace order be that the should reversed. Code section 243 in relevant that a
Penal part provides battery “[w]hen . . . and the of a it is committed person against person know that or should offense knows reasonably committing duties, victim is a officer . .. in the of his and such officer ... of his duties ... not one punishable] by county imprisonment jail exceeding [is or in the state .... As used in this section year by imprisonment prison officer’ refers to as a ‘peace any person designated Section 830.1. . . .” sheriff,
Penal Code section 830.1 in relevant provides part “Any sheriff, undersheriff or such, and as of a deputy regularly employed paid of a district authorized county, any policeman city, any policeman statute to maintain a marshall or marshall police department, any deputy court, of a constable, constable or municipal any deputy regularly such, of a district ... is a employed paid judicial officer. . . .” (Italics added.)
Defendant contends that the phrase “regularly employed paid such” modifies the of a phrase “any policeman city,” thereby precluding from this officers when category off-duty municipal police they perform services for outside the of their private compensation regular police construction, It is a rule of employment. general statutory *5 “ however, that are to be to the words ‘modifying phrases applied them and are not to be construed immediately as to preceding extending more Maher, remote Santa Barbara v. 25 phrases.’ (City Cal.App.2d of 325, 327 P.2d and cases 306], there cited.)” (Watkins v. Real Estate [77 397, Commissioner 182 (1960) 399 An 191].) Cal.App.2d [6 Cal.Rptr. “ rule to this that several words are followed exception provides ‘[w]hen a clause which is as much to the first and other words as to by applicable last, the natural construction of the demands that the clause language ” be to all.’ T. Dealers v. (Wholesale National etc. Co. 11 applicable (1938) 634, 3, Cal.2d 659 P.2d 118 not, A.L.R. 486].) does [82 exception however, here. officers are appear applicable City police normally such,” and as whereas sheriffs and “regularly employed paid deputy constables serve in that in deputy small may capacity, particularly counties, Thus, on an basis. the clause irregular and “regularly employed such,” as is not as much to the paid applicable phrase “city policeman,” as it is to the that the clause follows. We phrases immediately therefore conclude that at the time of Anderson, Howard battery, officer, was officer as defined Penal city police technically Code section 830.1. In order for such a officer to within the come 243, however, ambit of Penal Code section that officer must be of his duties v. Soto (1969) actually engaged (People 81, 276 85 and must or 832]), Cal.App.2d Cal.Rptr. actually [53 in be known the accused be that acting reasonably capacity. must therefore determine whether the intended to include Legislature who of their are within the private employ- are within the of officers who ment guards meaning security duties, in in Penal of their contemplated 243. Code section construction, we in constru rules of may,
Under
statutory
general
of
bear on the
statute,,
consider other statutes
meaning
might
ing
690,
Cal.3d
v. Ruster (1976)
(See
the statute
issue.
[129
People
we
353,
In this
It is 7538, that if a officer from section subdivision (e), apparent peace is under is his PIAA when he subject regulation employed during hours as a he would be when security prohibited, acting guard,
744 within the of this from his private employment, wearing police uniform or from in Thus, that he is a officer. indicating any way police an various acts in his although off-duty police may perform as a which coincide with his duties capacity security guard may officer, PIAA, it is clear that in so that he is he doing, provided subject cannot Therefore, officer. since give appearance being police know, members of the could not he unless violated that public reasonably act, that he was officer and within his official actually it would be absurd to that he was capacity, say engaged óf his duties as such for the of Penal Code section purposes 243. therefore must determine whether the intend Legislature ed to make officers or off-duty peace employed private security guards to the of PIAA. patrolmen subject regulations from under PIAA are enumerated in only exemptions regulation Business and Professions Code section 7522. Subdivision amended (b).as in 1973 officer or ... of this state or a exempts employee “[a]n political thereof, subdivision while such is employee duties, uniformed including official to a written employed part-time by public agency pursuant agreement between a chief of or sheriff and the public agency, provided such does not exceed 50 part-time hours calendar employment any month.” 7522, (Italics added.) The of section subdivi- legislative history sion (b) indicates that this not intended clearly statutory exemption officers, Anderson, such as Officer who are apply An part-time private patrol employment. express provision exempting officers from the of PIAA as as their operation long did not exceed hours calendar month had patrol employment per 1967, 1377, been included in section ch. (Stats. 3227). formerly p. However, section was amended 695 of the Statutes of by chapter 1973. This emanated from Bill No. 1348 which was chapter Assembly introduced on 1973. The alia, bill inter April originally provided, the deletion of the above officers in provision exempting peace part-time and for the addition of a new section which private patrol employment, “It stated that is the intent of the that the amendments made Legislature in section of the Business and Professions Code this act shall *7 officers when are in require peace they employed part-time private patrol to be licensed under the Private and employment Investigators Adjusters 14, Act.” The bill was amended the 1973, on June and the by Assembly for officers in exception peace engaged part-time private patrol employ- was re-added. amendment, ment Consistent with this the provision the intent to exclude such officers was deleted. specifying legislative peace was Senate where it amended then to the was sent The bill as amended officers 30, amendment, the for this 1973. on exception peace By August deleted, and in again patrol employment part-time private engaged law. into enacted the Senate was bill as amended the subsequently by did in this (b) subdivision the in regard amending Legislature Although the stated bill which the not include original expressly provision an clear, such even without it is of the express intent Legislature, intended, the intent, the deleting of that by statement Legislature in for officers employ- private patrol engaged part-time exception peace of as law), that been had by ment formerly provided (which exception of PIAA.1 to the officers are 1973 such regulatory provisions subject peace as earlier, officers Furthermore, as we observed inasmuch acting peace services are authorized or perform patrolmen security guards Bus. & Prof. (see involve of which persons property may protection commit such Code, well the of those who 7521), as arrest effecting § Code, 834, 836, that it is 837), §§ crimes in their (Pen. apparent presence the duties in so are in most cases doing, they concurrently performing officers, Nevertheless, of whether or off the all on duty. required peace 1973, section in has indicated a Legislature amending policy the of fact whereby operates private employment prevent officer from in what would otherwise be official his acting capacity.
These that statutory clearly legislative provisions “express policy not create the that shall are private patrolmen impression they acting 80, under (48 (1966).) governmental authority” Ops.Cal.Atty.Gen. More has made importantly, Legislature illegal receipt specifically reward, “emolument, or officer of or any gratuity any public employee Code, Thus, thereof... for an official act.” (Pen. 70.) § promise doing the law this state forbid the here involved from policy policeman from the of the event for official his receiving pay sponsors performing Thus, duties.2 if what Officer Anderson was was not in violation of doing who are 1We not think that the intended to treat do Legislature for differently on a basis one part-time employer any work private patrol regular only Thus, on casual officers who are work basis. private patrol than peace (a) an for of section does provide exception persons regularly subdivision although not or use carry one that do provided they and exclusively employed by employer, duties, we do think fact certain of their not that deadly weapon officers, acting section would when permit under this officers may qualify to wear uniforms or give their within the private employment, are officers. they appearance 2A is evidenced Government Code section similar intent of Legislature who the time (a), benefits to a which denies extension any subdivision than from one other compensation primary death or of injury, disability 3600.3, (d).) (See subd. also Lab. governmental employer. *8 746
law it (Pen. 70), must be because on his hours he was not his official duties but rather performing performing only private duty If to contract. he were in such contractual he pursuant engaged activity, was not of his official so as to duty, bring of Penal Code section 243 into There felony is no provisions operation. reason to to the intent to furnish to one as a impute Legislature any acting because he is also patrolman any special protection just of a as a employ city policeman. intent,
Given this we conclude that Penal Code section legislative 243 which serves protect peace duties,
their enhanced for those by providing punishment committing officers, batteries on such does not officers who are apply within the course and of their assaulted scope private employment We do not that a officer’s official duties suggest security guards. at the end cease of his normal hours v. (Cf. necessarily working People 177 630-631 where (1960) 401]), there Derby Cal.App.2d Cal.Rptr. [2 are no contractual duties of the nature involved herein. We v. therefore Hooker (1967) Cal.App.2d [62 disapprove People v. Townsend (1971) Cal.Rptr. People 675] Cal.App.3d [98 to the extent 25], are inconsistent with this Cal.Rptr. they opinion. further conclude that since it is that Officer Anderson was undisputed as a when the employed part-time private security guard incident occurred, he was to the of PIAA involving subject regulations and therefore could not have been in his official properly capacity when, of that he was battered her. We during employment, therefore hold the evidence defendant’s conviction support insufficient on a officer. battery error, however,
We find no with to defendant’s conviction of regard and as the evidence was sufficient to a verdict as to simple battery support offense, lesser included we the verdict modify by reducing offense to simple battery.
The order and the case remanded to is reversed granting probation the trial court for of this modification. disposition light
Bird, J., Tobriner, J., Mosk, J., Richardson, J., Newman, J., C. concurred.
747 of from that I dissent and CLARK, J., portion Dissenting. Concurring Penal is not violating the guilty concluding majority opinion 243. Code section aof officer” 243 the
Section person peace battery “against prohibits in duties.” must therefore when the his performance “engaged Officer Anderson what rested with determine observing upon duty defendant’s conduct. The an majority recognize off-duty municipal police Code, a status as a officer. (Pen. officer possesses continuing peace However, he the is not in 830.1.) § they argue “engaged when, uniform, in full he is to duties” privately employed perform the same services he would have had he been performed essentially the to at the in dance assigned by municipality keep peace public to a Is a criminal escape responsibility attacking question. wrongdoer officer because—unknown to her—the officer is merely municipal a source other than the for his duties by municipality? paid peace-keeping with strained construction of Penal Code section The answer a majority 243. intent on to is made construction legislative
The depend majority Act. code—the Private Adjuster from another borrowed Investigator to the act 7500 et Prof. subject & Security personnel (Bus. seq.) and, if the as officers themselves majority argue, cannot peace represent services is to officer security an off-duty perform peace officer— himself act, too cannot to he represent subject an officer that such conclude in he be one fact. even majority though he in act “it would absurd to that was be is say subject for the of Penal of his duties purposes [as officer] 243.” Code section (Ante, 744.) p. if and Professions Code is
Even
the Business
arguably applicable
rationale
Officer Anderson’s
fails
securing
passageway,
majority’s
when
the true
which the officer
he
to consider
capacity
arrest,
A
has
attacked
defendant.
and was
by,
attempted
hours,
at all
whether or not
keep
continuing responsibility
nature of their
of the
on
employment public
officially
duty. “[B]ecause
all times to use their best efforts to
are
under a
duty
special
878, 883
v. Hooker (1967)
criminals.”
Cal.App.2d
apprehend
(People
v. Curtis
other
on
675],
grounds
People
disapproved
Cal.Rptr.
[62
713,
356;
P.2d
see also
33],
People
Respondent’s petition rehearing August