People v. PenningtonPeople v. Pennington
I. BACKGROUND
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
Based on these facts the People charged defendant with resisting an executive officer (
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 “it‘s not something the jury can decide, that they‘re not peace officers. It‘s not an issue for them to decide.” 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].” (
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
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
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 . . . .” (
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 “Officer Hubbard was a peace officer performing the duties of a Harbor Patrol officer[], that‘s element number one. That‘s clear.” 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, 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
The Court of Appeal affirmed the verdict. Declining to follow Miller, supra, 164 Cal.App.4th 653, 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 officer for the City of Santa Barbara Waterfront Department, is a peace officer within the meaning of Penal Code section 243, subdivision (b), supporting defendant‘s conviction for battery on a peace officer?” We answer the question negatively and reverse the Court of Appeal‘s decision.
II. ANALYSIS
Defendant contends the evidence introduced at trial was insufficient to prove the person he battered was a “peace officer.” (
To define “peace officer” for the purpose of statutes punishing crimes against peace officers is only one of the functions of chapter 4.5. Broader concerns related to governmental organization, and the distribution of power between state and local government, expressly motivated the Legislature to add the chapter to the Penal Code. “Prior to 1968, the designation of peace officers and the description of their powers were dispersed throughout the codes.” (County of Santa Clara v. Deputy Sheriffs’ Assn. (1992) 3 Cal.4th 873, 879 (County of Santa Clara).) The resulting uncertainty led the Legislature to conclude “it was essential the law be clear with respect to ‘who can act as peace officers, and where, and for what purposes’ ” and “to prohibit county [and other local] authorities from conferring that status on employees not designated in chapter 4.5.” (Ibid.) By adopting chapter 4.5, the Legislature brought those scattered statutes together in one place and exclusively “define[d] peace officers, the extent of their jurisdiction, and the nature and scope of their authority, powers and duties.” (Stats. 1968, ch. 1222, § 79, p. 2331 [uncodified provision].) Today, as a result of this legislation and “notwithstanding any other provision of law, no person other than those designated in this chapter [4.5] is a peace officer.” (
Chapter 4.5 contains over 100 sections and subdivisions authorizing public agencies to confer the status and powers of a peace officer on the members of a host of state and local personnel categories, subject to an intricate array of conditions and limitations. (See
A few examples will illustrate the detailed attention the Legislature has given to the conditions under which a person may properly be considered a peace officer. The members of a fire department, other than members of an arson investigating unit, are peace officers only “if [their] primary duty . . . , when acting in that capacity, is the enforcement of laws relating to fire prevention or fire suppression” (
The People contend
The question has significance beyond the instant case and even the criminal law. Language identical to that which defines certain harbor patrol officers as peace officers (
” ‘Our fundamental task in construing’ ”
Defendant contends the clause set out above in italics (beginning “if the primary duty of the peace officer” (
The People read the statute differently. They argue a harbor patrol officer need not have the primary duty of law enforcement to be a peace officer. Instead, they contend, the statute sets out “alternative means for achieving peace officer status for a harbor patrol officer.” Under the People‘s view, a harbor patrol officer
The People defend their interpretation of
The People‘s fragmented interpretation of subdivision (b) is difficult to harmonize with
A further problem with the People‘s interpretation of
The People suggest no reason why the Legislature might have wanted to confer the status and “formidable power” of a peace officer on public employees who have no necessary law enforcement duties. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 206; see id. at p. 216 [” ‘police officers [exercise] the most awesome and dangerous power that a democratic state possesses with respect to its residents — the power to use deadly force to arrest and detain them’ “].) Instead of attempting to justify their interpretation as serving an identifiable policy goal, the People attempt to avoid the logical consequences of their argument by arguing the term “police” (as in “[h]arbor or port police” (
In conclusion, defendant‘s interpretation of
The same question of statutory interpretation before us here also arose in Miller, supra, 164 Cal.App.4th 653. The defendant in that case, while driving unlawfully on a beach bicycle path and ignoring a pursuing ” ‘harbor patrolman,’ ” struck and injured a jogger. (Id. at pp. 656–659.) Based on these facts, the defendant was convicted of offenses including the attempt to elude a pursuing peace officer, causing serious bodily injury. (
The court in Miller, supra, 164 Cal.App.4th 653, summarized the evidence concerning the alleged peace officer‘s status in this way: “On the day of the accident, Robert Hamilton was working at the lifeguard headquarters on East Ocean Boulevard in Long Beach. Hamilton worked for ‘the City of Long Beach Fire Department’ and ‘the lifeguards.’ He first stated his job title was ‘rescue boat operator’ and then corrected himself and said it was ‘harbor patrolman.’ In that
Considering this evidence, and observing “the prosecutor never asked Hamilton to specify his primary duties” (Miller, supra, 164 Cal.App.4th at p. 667), the Court of Appeal concluded the People had failed to prove he was a peace officer. “[S]ection 830.33, subdivision (b),” the court explained, “does not confer peace officer status on harbor or port police who engage in any ‘policing functions’ or who perform any duty that might also be performed by a peace officer. Rather, it confers peace officer status on those whose ‘primary duty’ is ‘the enforcement of the law.’ ” (Miller, at p. 667.) “Hamilton,” the court continued, “testified that he ‘mostly’ operated a rescue or patrol boat. From Hamilton‘s description of his duties, the jury could not conclude beyond a reasonable doubt that he was primarily engaged in the enforcement of the law.” (Ibid.)
In reaching this conclusion, the court in Miller, supra, 164 Cal.App.4th 653, rejected the same interpretation of
We thus turn to the question whether the People in the case before us proved Officer Hubbard‘s primary duty was law enforcement. The testimony concerning his status differs from the testimony concerning Hamilton, the alleged peace officer in Miller, supra, 164 Cal.App.4th 653. While both men performed various duties related to marine safety and law enforcement, Officer Hubbard had completed an orientation program required of peace officers, wore a badge and uniform, carried a sidearm and other policing tools, patrolled the waterfront as a police officer would, and reported for some purposes to the chief of the Santa Barbara Police Department. Officer Hubbard also claimed to be a peace officer under
In the end, the one crucial similarity between this case and Miller, supra, 164 Cal.App.4th 653, is that, in both cases at trial the People offered no evidence to prove the alleged peace officer‘s ”primary duty [was] the enforcement of the law . . . .” (
By failing to prove Officer Hubbard was a peace officer, the People also “simply failed to close a sizable evidentiary gap mandated by the terms of the statute [defendant] allegedly violated.” (People v. Acevedo (2003) 105 Cal.App.4th 195, 199 [People offered no evidence police car that defendant evaded displayed red lamp as required by statute defining offense].) Viewing the evidence in the light most favorable to the prosecution, we cannot say any rational trier of fact could have found beyond a reasonable doubt this fact essential to defendant‘s conviction. (See People v. Banks (2015) 61 Cal.4th 788, 804; Jackson v. Virginia (1979) 443 U.S. 307, 318–319. See also Burks v. United States (1978) 437 U.S. 1, 18 [Double Jeopardy Clause precludes second trial once reviewing court has found evidence legally insufficient].)
The judgment of the Court of Appeal is reversed to the extent it affirms defendant‘s conviction for battery under
WERDEGAR, J.
WE CONCUR:
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
Like the majority, I understand
The meaning of section 830.33(b)‘s “primary duty” requirement is a difficult threshold question that warrants more attention than the parties have
I.
To understand the difficulties the question poses, some background is in order. Defendant Bryan M. Pennington was found guilty of violating
Section 830.33(b) is not a model of legislative drafting. What one Court of Appeal once said of a parallel provision concerning firefighters is equally true
But this conclusion raises a critical follow-on question: What does it mean to say that an officer‘s “primary duty” is (or is not) law enforcement, when, as in this case, the officer has a range of duties, some of which involve law enforcement and some of which do not? (See maj. opn., ante, at p. 18.) The statute speaks in terms of a single “primary duty,” and not, for example, one of several “primary duties.”1 How is the officer‘s single “primary duty” to be identified? The People assert, without elaboration, that identifying an officer‘s “primary duty” means identifying the officer‘s “most important” duty. At oral argument, counsel for
As a general rule, when statutory language carries with it a range of possible meanings, we select among those meanings by considering how the language is designed to function in the context of the broader statutory scheme, as well as the purposes the statute is designed to achieve. (E.g., In re Derrick B. (2006) 39 Cal.4th 535, 539; accord, e.g., Holland v. Assessment Appeals Bd. No. 1 (2014) 58 Cal.4th 482, 490.) But when a statute adopted in one context is incorporated by reference into another, there is no single context or set of statutory purposes we can consult to illuminate the meaning of ambiguous statutory language. As a consequence, consideration of context and purpose may do more to confound than to clarify.
This case provides a particularly stark illustration. When chapter 4.5 was enacted in 1968, the Legislature specified that the purpose of the enactment was “to ‘define peace officers, the extent of their jurisdiction, and the nature and scope of their authority, powers and duties,’ not to change the status of peace officers for employment benefits.” (Gauthier, supra, 34 Cal.App.4th at p. 1444, quoting Stats. 1968, ch. 1222, § 79, p. 2331; see also County of Santa Clara v. Deputy Sheriffs’ Assn. (1992) 3 Cal.4th 873, 879; cf. maj. opn., ante, at pp. 11–16.) Consistent with that purpose, the Legislature later added section 830.33(b) to the chapter. (See Stats. 1989, ch. 1165, § 26, p. 4505.) But the Legislature has also deployed the “peace officer” definitions in that chapter — including section 830.33(b) — for a wide array of other purposes, including the conferral of employment rights and benefits. (See, e.g.,
What interpretation of the term “primary duty” might plausibly serve in all of these disparate criminal and civil contexts? In criminal cases, the due process clause demands that the law provide the defendant ” ‘fair warning . . . of what the law intends to do if a certain line is passed.’ ” (United States v. Lanier (1997) 520 U.S. 259, 265, quoting McBoyle v. United States (1931) 283 U.S. 25, 27.) A rule of construction specific to criminal cases, rooted in similar principles of fair notice, also sometimes requires us to give a narrow interpretation to ambiguous language defining a criminal offense or the penalties to which an offender will be subject. (See, e.g., People v. Avery (2002) 27 Cal.4th 49, 58.) Civil laws, by contrast, are often broadly construed in favor of a protective or remedial purpose. (See, e.g., People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 312–314.) And in civil cases, we often also give significant weight to an administrative agency‘s interpretation of a civil statute that the agency administers (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1), whereas we have no comparable practice in criminal cases.
Here, in this criminal battery case, we might be inclined to believe the Legislature intended a definition of “primary duty” that trains on observable characteristics. After all, how else is a defendant to know that the person he is battering is a “peace officer” for purposes of section 243(b), as the provision requires? Presumably the defendant will have no access to detailed job descriptions and no knowledge of how much time per week the officer spends patrolling the premises for law enforcement purposes, as opposed to, for example, engaging in marine safety activities. But for other purposes, a focus on observable characteristics might result in depriving officers of rights and benefits the Legislature intended them to enjoy. In short, given the many different purposes to which the very same statutory definition has been put, the meaning of its reference to an officer‘s “primary duty” is not readily apparent.
II.
Although the parties in this case strenuously disagree whether the evidence was sufficient to support the conclusion that Officer Hubbard‘s “primary duty” was law enforcement, neither of them gives more than glancing attention to the question of what the term “primary duty” means. This is somewhat puzzling, since the question of what the statute means is, for obvious reasons, logically prior to the question whether the trial evidence was sufficient to support defendant‘s conviction under the statute. A court reviewing the sufficiency of the evidence asks whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 319, italics omitted; see also Musacchio v. United States (2016) ___ U.S. ___, ___–___ & fn. 2 [136 S.Ct. 709, 715–716 & fn. 2].) Before concluding that the People failed to prove an essential element of the crime by sufficient evidence, we
The majority avoids the problem by assuming, for the sake of argument, that the People are correct that “primary duty” simply means “most important” duty, and insisting that it has “search[ed] the record in vain” for trial evidence to support the People‘s argument that Officer Hubbard‘s “most important” duty was law enforcement. (Maj. opn., ante, at pp. 18–19.) The evidence on which the People rely is, however, neatly summarized in the preceding paragraph of the majority‘s opinion: “Officer Hubbard had completed an orientation program required of peace officers, wore a badge and uniform, carried a sidearm and other policing tools, patrolled the waterfront as a police officer would, and reported for some purposes to the chief of the Santa Barbara Police Department.” (Id. at p. 18.) The majority does not explain why, in its view, no rational juror could decide on the basis of this evidence that Officer Hubbard‘s “most important” job responsibility was law enforcement, and its reasons for reaching that conclusion are not self-evident.
As an apparent aside, the majority also notes that we cannot affirm a conviction based on an interpretation of “primary duty” that was not presented to the jury. (Maj. opn., ante, at p. 18.) It is certainly true that “[a]ppellate courts are not permitted to affirm convictions on any theory they please simply because the facts necessary to support the theory were presented to the jury.” (McCormick v. United States (1991) 500 U.S. 257, 270, fn. 8.) But it does not follow that this court must invalidate a conviction on the ground of insufficient evidence because the jury was not asked to apply the correct standard at trial, regardless of whether the trial evidence was, in fact, sufficient to meet that standard. Such an approach would not only foreclose any inquiry into whether the mistake might have been harmless (see Maslenjak v. United States (2017) ___ U.S. ___, ___ [137 S.Ct. 1918, 1931]; Neder v. United States (1999) 527 U.S. 1, 15–20), but would also, at least in most cases, preclude retrying a defendant before a properly instructed jury (see Burks v. United States (1978) 437 U.S. 1, 18 [“[T]he Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient.“]; but cf. U.S. v. Ford (4th Cir. 2013) 703 F.3d 708, 710–711 [discussing effect of change in law on double jeopardy issue]). The law does not demand such a result. (See McCormick, supra, at p. 270 [“[E]ven assuming the Court of Appeals was correct on the law, the conviction should not have been affirmed on that basis but should have been set aside and a new trial ordered.“].)
As I see it, the central problem with the People‘s “most important” duty interpretation is not that it lacks record support, but rather that it raises more questions than it answers. What does it mean to say that an officer‘s “most important” duty is law enforcement? How is the relative importance of the officer‘s various duties to be evaluated? And, critically, under what circumstances could we expect a defendant to know the nature of a harbor patrol officer‘s “primary duty,” as section 243(b) requires? Without exploring the answers to these questions, I see no way to decide whether the trial evidence was sufficient to support defendant‘s conviction.
III.
Given the limited attention the issue has received thus far, I would remand the case for further proceedings rather than attempt to construe the term “primary duty” in the first instance. (Cf. Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1118 [remanding for reconsideration in light of clarified legal principles]; People v. Tom (2014) 59 Cal.4th 1210, 1235–1237 [same]; In re Cabrera (2012) 55 Cal.4th 683, 692 [same]; Zengen, Inc. v. Comerica Bank (2007) 41 Cal.4th 239, 259 [same]; In re Emiliano M. (2003) 31 Cal.4th 510, 513 [same].) The Court of Appeal concluded that Officer Hubbard was a peace officer
It is true that our order granting review described the question presented in the following terms: ” ‘Did the People prove that the named victim, a harbor patrol officer for the City of Santa Barbara Waterfront Department, is a peace officer within the meaning of Penal Code section 243, subdivision (b), supporting defendant‘s conviction for battery on a peace officer?’ ” (Maj. opn., ante, at p. 6.) This question, however, is essentially several questions wrapped into one, and there is no doubt that, “fairly included” within it (
In any event, although the majority‘s decision puts an end to this particular case, the underlying interpretive question will undoubtedly recur. The Legislature
KRUGER, J.
I CONCUR:
CANTIL-SAKAUYE, C. J.