People v. Pennington ( 2014 )


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  • Filed 9/22/14
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION SIX
    THE PEOPLE,                                               2d Crim. No. B249482
    (Super. Ct. No. 1423213)
    Plaintiff and Respondent,                            (Santa Barbara County)
    v.
    BRYAN M. PENNINGTON,
    Defendant and Appellant.
    As against a claim of insufficiency of the evidence, we hold that a harbor patrol
    officer who is (1) sworn as a peace officer, (2) supervised by a city police chief, (3) wears a
    badge, and (4) carries a police issued firearm, taser, baton, handcuffs, and pepper spray is a
    "peace officer" within the meaning of Penal Code section 830.33, subdivision (b) if he or
    she performs necessary duties with respect to patrons, employees, and properties of the
    harbor or port. 1
    Bryan M. Pennington appeals from the judgment entered after a jury convicted him
    of felony resisting an executive officer (§ 69); misdemeanor battery on a peace officer
    (§ 243, subd. (b)); misdemeanor trespass (§ 602, subd. (k)); and misdemeanor attempted
    petty theft. (§§ 664, 484, subd. (a).) The trial court found true an enhancement allegation
    that, when appellant committed the felony offense of resisting an executive officer, he was
    out on bail for an earlier offense. (§ 12022.1, subd. (b).) Probation was granted for five
    years on condition that he serve 365 days in county jail.
    1
    All statutory references are to the Penal Code.
    A Santa Barbara Harbor Patrol Officer was the named victim of the misdemeanor
    battery on a peace officer. Appellant contends that (1) the evidence is insufficient to show
    that the named victim was in fact a peace officer; (2) the trial court erroneously instructed
    the jury that a member of the Santa Barbara Harbor Patrol is a peace officer; (3) the trial
    court erroneously precluded appellant from arguing to the jury that the named victim was
    not a peace officer; (4) the evidence is insufficient to support his conviction of trespass; (5)
    the trial court erroneously failed to instruct sua sponte on the claim-of-right and mistake-of-
    fact defenses to attempted petty theft; and (6) the "out-on-bail" sentencing enhancement
    must be permanently stayed. We affirm.2
    Facts
    Patrick Henry worked as a manager for the City of Santa Barbara Waterfront
    Department. He issued keycards to persons who were authorized to enter waterfront private
    areas which are not open to the public. The keycards were used to unlock gates to these
    restricted areas, which were called "marinas." Only boat owners who rented boat slips and
    authorized guests were allowed to enter a marina. A visitor was not permitted to enter
    unless he was escorted by a keycard holder. The restrictions on entry to the marinas were
    set forth in a section of the Santa Barbara Municipal Code.
    On the entry side of the locked gate to Marina 3 (the Marina), a sign read:
    "Unauthorized entry prohibited. Boat owners and authorized guests only." Henry saw
    custodial workers exit through the gate. Appellant, who was outside the Marina, ran to the
    gate, "caught it before it locked into place," and entered the Marina. Henry recognized
    appellant and knew his entry was unauthorized. Appellant was no stranger to the harbor
    personnel. On May 5, 2009, he got into a "wrestling match" with a harbor patrol officer.
    On July 7, 2012, he threatened to stab a harbor patrol officer. Henry telephoned the Harbor
    Patrol Office.
    2
    Appellant does not attack the felony resisting an executive officer conviction, and the order
    granting probation is reasonably predicated on this conviction alone. Nevertheless, he may
    lawfully advance the specified contentions on appeal. We simply observe that even if he
    were to prevail on all contentions, we would still affirm the order granting probation.
    2
    Richard Hubbard, the named victim of the misdemeanor battery on a peace officer,
    responded to Henry's call. He was employed by the City of Santa Barbara as a "Harbor
    Patrol officer." Hubbard performed duties "as a law enforcement officer, a boating safety
    officer, [an] emergency medical technician, [a] marine firefighter, and [an] ocean lifeguard."
    Hubbard "enforc[ed] the law in the harbor district" and patrolled "the marinas on foot, with
    vehicles and also on boat[s] . . . just like PD [police department officers] would patrol the
    city streets." One of his duties was to assure "that only people that are authorized to be in
    the marinas are in there." His supervisor was the Chief of the Santa Barbara Police
    Department. He was a sworn peace officer, wore a badge, and had the power to make
    arrests. He carried "a department-issued sidearm, taser, baton, handcuffs and OC [pepper]
    spray."
    Hubbard and his partner, Harbor Patrol Officer Kelly, entered the Marina. They were
    "in full Harbor Patrol uniform." They saw appellant with a coiled hose over his shoulder.
    Hubbard said to appellant: "You need to stop. We need to talk to you." Appellant did not
    reply and "tried to push . . . through where [Hubbard and Kelly] were standing." The
    officers stopped him, and appellant said he was there to get the hose for his friend, Carol,
    who had given him permission to take it. Hubbard told appellant "to put the hose back until
    [they] could verify his story." Appellant put the hose down and walked away. Hubbard and
    Kelly followed him. Hubbard said to appellant: "We're not done. I need to talk to you."
    Appellant "kept going," so Hubbard "put [his] hand out on [appellant's] chest to stop him."
    Appellant kicked Hubbard in the thigh. The blow hurt and "[l]eft a good-sized bruise."
    Appellant "took . . . an aggressive fighting stance," clenched his fists, and kicked Officer
    Kelly in the shin. Hubbard grabbed appellant, who "started throwing a bunch of . . . wild
    punches and kicks in the air." The kicks were directed toward Hubbard's face.
    Officer Kelly fired his taser at appellant. The taser barb struck appellant's jacket but
    did not penetrate his skin. Appellant turned and ran away. Kelly chased appellant and
    wrestled him to the ground. Appellant said: "Motherfucker. You're dead. I'm going to kill
    3
    you." After he was handcuffed, appellant told the officers: "I'm going [to] find you where
    you live and kill you in your house. Just wait until I get out and you're dead."3
    The hose belonged to Peter Crane, who owned a houseboat that was docked at the
    Marina. He did not authorize appellant to take the hose. Carol Holm had permission to use
    Crane's hose to clean her boat, which was near Crane's houseboat.
    Carol Holm testified that she employed appellant as a worker on her boat. After
    appellant was arrested, she told the Harbor Patrol that appellant did not have permission to
    remove the hose because it belonged to her neighbor. But at trial Holm testified that she had
    given appellant permission to take the hose to another location in the Marina. On the date in
    question, appellant did not ask Holm for permission to go to her boat and use the hose.
    Holm opined that appellant could enter the Marina and work on her boat because he worked
    for her.
    Sufficiency of the Evidence/Battery on a Peace Officer
    Appellant contends that the evidence is insufficient to support his conviction of
    misdemeanor battery on a peace officer (§ 243, subd. (b)) because the People failed to prove
    that the named victim, Officer Hubbard, was in fact a peace officer. " 'The record must
    disclose substantial evidence to support the verdict—i.e., evidence that is reasonable,
    credible, and of solid value—such that a reasonable trier of fact could find the defendant
    guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence
    in the light most favorable to the prosecution and presume in support of the judgment the
    existence of every fact the jury could reasonably have deduced from the evidence.
    [Citation.] . . . A reversal for insufficient evidence "is unwarranted unless it appears 'that
    upon no hypothesis whatever is there sufficient substantial evidence to support' " the jury's
    verdict. [Citation.]' [Citation.]" (People v. Manibusan (2013) 
    58 Cal. 4th 40
    , 87.)
    The relevant definition of "peace officer" is found in section 830.33, subdivision (b),
    which provides that "[h]arbor or port police" are peace officers if they are "regularly
    employed and paid in that capacity by a county, city, or district" and [first clause] "if the
    3
    Appellant is fortunate not to have been charged with violating section 422, threatening to
    commit a crime that would result in death or great bodily injury.
    4
    primary duty of the peace officer is the enforcement of the law in or about the properties
    owned, operated, or administered by the harbor or port or [second clause] when [the officer
    is] performing necessary duties with respect to patrons, employees, and properties of the
    employing agency."4 (Italics added.)
    Based on People v. Miller (2008) 
    164 Cal. App. 4th 653
    (Miller), appellant argues that
    the second clause is of no force or effect and that harbor or port police are peace officers
    only if their primary duty is the enforcement of the law. Appellant asserts that, because the
    record contains no evidence that Officer Hubbard's primary duty was law enforcement, the
    conviction for battery on a peace officer must be reversed.
    In Miller the defendant was convicted of attempting to elude a pursuing peace
    officer's vehicle and causing bodily injury. (Veh. Code, § 2800.3.) The officer testified that
    he was a " 'harbor patrolman' " employed by " 'the City of Long Beach Fire Department.' "
    
    (Miller, supra
    , 164 Cal.App.4th at p. 658.) He worked " 'mostly . . . [as] a rescue boat
    operator.' " (Ibid.) "He had the authority to issue citations, detain individuals and make
    arrests." (Ibid.)
    The Miller court concluded that the defendant's conviction had to be reversed
    because "the jury could not conclude beyond a reasonable doubt that [the officer] was
    primarily engaged in the enforcement of the law" and was therefore a peace officer. 
    (Miller, supra
    , 164 Cal.App.4th at p. 667.) The court noted: "In its brief, [the People did] not
    dispute that [the officer's] status as a peace officer depends on a finding as to his primary
    duties." (Ibid.) But "[a]t oral argument, [the People] contended for the first time that
    employees of the harbor or port police should be considered peace officers as long as they
    are 'regularly . . . paid in that capacity by a county, city or district' and 'performing necessary
    duties with respect to patrons, employees and properties of the harbor or
    4
    The verbatim text of the statute provides that peace officers include "[h]arbor or port
    police regularly employed and paid in that capacity by a county, city, or district other than
    peace officers authorized under Section 830.1, if the primary duty of the peace officer 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).)
    5
    port.' " (Id., at p. 667, fn. 9, quoting from the second clause of section 830.33, subd. (b).)
    The court rejected the People's contention. It reasoned: "Under this interpretation, the
    [second] clause of Penal Code section 830.33, subdivision (b) would operate to create a
    wholly separate category of harbor and port police employees who may be deemed peace
    officers without regard to whether their primary duty is enforcement of the law. This
    definition would bestow peace officer status on a broad category of employees who perform
    no law enforcement functions, and cannot be reconciled with prior decisions' strict
    interpretation of the provisions of Chapter 4.5 [of Title 3 of Part 2 of the Penal Code, which
    includes section 830.33]. [Citation.]" (Ibid.)
    We disagree with Miller's interpretation of section 830.33, subdivision (b). "Our
    goal in construing a statute is 'to determine and give effect to the intent of the enacting
    legislative body.' [Citation.] ' "We first examine the words themselves because the
    statutory language is generally the most reliable indicator of legislative intent. [Citation.]
    The words of the statute should be given their ordinary and usual meaning and should be
    construed in their statutory context." [Citation.] If the plain, commonsense meaning of a
    statute's words is unambiguous, the plain meaning controls.' [Citation.]" (Holland v.
    Assessment Appeals Bd. No. 1 (2014) 
    58 Cal. 4th 482
    , 490.)
    Section 830.33, subdivision (b) is unambiguous. A harbor or port police officer
    qualifies as a peace officer if the requirements of the first or second clause are met. The
    first clause does not prevail over and supersede the second clause. Miller's interpretation
    "violate[s] the principle of statutory construction that 'requires us, if possible, to give effect
    and significance to every word and phrase of a statute. [Citation.]' [Citation.]" (People v.
    Guzman (2005) 
    35 Cal. 4th 577
    , 588.) "[I]t is well settled 'that in attempting to ascertain the
    legislative intention effect should be given, whenever possible, to the statute as a whole and
    to every word and clause thereof, leaving no part of the provision useless or deprived of
    meaning.' [Citations.]" (California Assn. of Psychology Providers v. Rank (1990) 
    51 Cal. 3d 1
    , 18.)
    We respectfully question the basis for the Miller court's concern that the second
    clause "would bestow peace officer status on a broad category of employees who perform
    6
    no law enforcement functions." 
    (Miller, supra
    , 164 Cal.App.4th at p. 667, fn. 9.) The
    second clause applies only to "[h]arbor or port police regularly employed and paid in that
    capacity," i.e., their official capacity as police officers. (§ 830.33, subd. (b), italics added.)
    The People correctly observe that "the term 'police' necessarily connotes law enforcement
    functions." Thus, a person would not fall within the category of "harbor or port police"
    unless, like Officer Hubbard, the person performed law enforcement functions pursuant to
    the second clause. This is a question for the trier of fact.
    Appellant does not contend that the evidence is insufficient to show that Officer
    Hubbard was "performing necessary duties with respect to patrons, employees, and
    properties of the employing agency." (§ 830.33, subd. (b).) Nor could he so contend.
    Hubbard was in full uniform carrying peace officer accoutrement including a firearm, taser,
    and baton. He was investigating a suspected trespass and theft.
    Instruction that a Harbor Patrol Officer Is a Peace Officer
    The trial court instructed the jury that, to find appellant guilty of battery on a peace
    officer, the People must prove that "Hubbard was a peace officer performing the duties of a
    Harbor Patrol Officer." It further instructed that "[a] sworn member of the Santa Barbara
    Harbor Patrol is a peace officer." (Italics in original.) Appellant argues, and the People
    concede, that the latter instruction was erroneous. A Santa Barbara Harbor Patrol officer
    qualifies as a peace officer only if the People prove the requirements of either the first or
    second clause of section 830.33, subdivision (b). Moreover, "the constitutional right to a
    jury trial means that 'no matter how conclusive the evidence, a trial court cannot directly
    inform the jury that an element of the crime charged has been established. Absent a
    stipulation by the defendant that an element is established or is admitted, the trial court must
    submit that question to the jury.' [Citations.]" (People v. Yarbrough (2008) 
    169 Cal. App. 4th 303
    , 315.)
    "The error here is harmless beyond a reasonable doubt because the jury necessarily
    resolved [the peace officer] issue[] against appellant[] under other instructions. [Citation.]"
    (People v. Samaniego (2009) 
    172 Cal. App. 4th 1148
    , 1165.) For Hubbard to qualify as a
    peace officer under the second clause of section 830.33, subdivision (b), the People were
    7
    required to prove that he had been "performing necessary duties with respect to patrons,
    employees, and properties of the employing agency." (Ibid.) The jury instruction for
    battery on a peace officer stated that, to find appellant guilty of this crime, the People must
    prove that Hubbard was "performing the duties of a Harbor Patrol Officer" and that
    appellant "knew, or reasonably should have known, that Rick Hubbard was a peace officer
    who was performing his duties." Thus, by finding appellant guilty, the jury necessarily
    found that Hubbard had been performing his official duties and was therefore a peace officer
    within the meaning of the second clause of section 830.33, subdivision (b).
    Limitation on Scope of Appellant's Closing Argument
    Appellant contends that the trial court erred by granting the People's motion to
    preclude him from arguing to the jury that Hubbard was not a peace officer. The court
    stated: "[Y]ou can't argue that . . . Officer Rick 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 peace officers, as I understand it." "So it's not something the jury
    can decide, that they're not peace officers." For the reasons discussed in the preceding part
    of this opinion, the trial court's ruling was erroneous.
    The error is harmless beyond a reasonable doubt. If appellant had been permitted to
    argue that Hubbard was not a peace officer, his argument would have been limited to
    whether the People had proved the requirements of the first or second clause of section
    830.33, subdivision (b). The trial court permitted appellant to argue that he was not guilty
    of battery on a peace officer because Hubbard was not "performing his lawful duty." Thus,
    appellant was in effect allowed to argue that Hubbard was not a peace officer within the
    meaning of the second clause because he was not "performing necessary duties with respect
    to patrons, employees, and properties of the employing agency." (§ 830.33, subd. (b).) As
    we have previously explained, the jury could not have convicted appellant unless it had
    found that Hubbard had been performing his official duties within the meaning of the
    second clause.
    8
    Sufficiency of the Evidence/Trespass
    Appellant contends that the evidence is insufficient to support his conviction of
    trespass in violation of section 602, subdivision (k). This statute prohibits "[e]ntering any
    lands . . . for the purpose of injuring any property or property rights or with the intention of
    interfering with, obstructing, or injuring any lawful business or occupation carried on by the
    owner of the land, the owner's agent, or by the person in lawful possession." (Ibid.)
    The jury was instructed that, to find appellant guilty of trespass, the People must
    prove that he entered lands belonging to another "for the purpose of injuring property
    rights." Substantial evidence supports the jury's finding that appellant entered the Marina
    with the requisite purpose. The jury could have reasonably found that appellant had acted
    with the purpose of injuring the City of Santa Barbara's right to exclude unauthorized
    persons, i.e., people who were not keycard holders and were not escorted by a keycard
    holder. Appellant's presence on the property interfered with the owner's and tenants' right
    to exclusive and undisturbed possession of the Marina. "As a general rule, landowners and
    tenants have a right to exclude persons from trespassing on private property; the right to
    exclude persons is a fundamental aspect of private property ownership. [Citation.]" (Allred
    v. Harris (1993) 
    14 Cal. App. 4th 1386
    , 1390; see also Loretto v. Teleprompter Manhattan
    CATV Corp. (1982) 
    458 U.S. 419
    , 435 [
    102 S. Ct. 3164
    , 
    73 L. Ed. 2d 868
    ] ["The power to
    exclude has traditionally been considered one of the most treasured strands in an owner's
    bundle of property rights"].)
    Were we to credit appellant's theory, he could come and go to any portion of the
    Marina as long as he did not interfere with, obstruct, or injure the Marina or any of the boat
    slip tenants. This would be an unwarranted erosion of traditional real property rights.
    Alleged Failure to Instruct on Relevant Defenses
    For the offense of attempted petty theft (§§ 664, 484, subd. (a)), appellant argues that
    the trial court erroneously failed to instruct sua sponte on the defenses of claim of right and
    mistake of fact. "The claim-of-right defense provides that a defendant's good faith belief,
    even if mistakenly held, that he has a right or claim to property he takes from another
    negates the felonious intent necessary for conviction of theft or robbery." (People v.
    9
    Tufunga (1999) 
    21 Cal. 4th 935
    , 938.) "The mistake-of-fact defense operates to negate the
    requisite criminal intent or mens rea element of the crime, but applies only in limited
    circumstances, specifically when the defendant holds a mistaken belief in a fact or set of
    circumstances which, if existent or true, would render the defendant's otherwise criminal
    conduct lawful. [Citations.]" (People v. Lawson (2013) 
    215 Cal. App. 4th 108
    , 111.)
    Appellant asserts: "There was substantial evidence that when [he] entered the Harbor and
    removed the hose, he had a good faith belief that he had permission to do so. Specifically,
    Carol Holm . . . gave appellant permission to enter the Harbor to perform work on her boat
    and to utilize her hose for that purpose."
    If substantial evidence supported the defenses of claim of right and mistake of fact,
    the trial court had no duty to instruct sua sponte on these defenses because their purpose was
    to negate the mental element of attempted petty theft. In People v. Anderson (2011) 
    51 Cal. 4th 989
    , 992, our Supreme Court held that "a trial court has no obligation to provide a
    sua sponte instruction on accident where . . . the defendant's theory of accident is an attempt
    to negate the intent element of the charged crime." "[A]s explained in Anderson, the trial
    court's sua sponte instructional duties do not apply to defenses that serve only to negate the
    mental state element of the charged offense when the jury is properly instructed on the
    mental state element, even when substantial evidence supports the defense and it is
    consistent with the defendant's theory of the case. [Citation.] In these circumstances, the
    court's duty to instruct, 'extend[s] no further than to provide an appropriate pinpoint
    instruction upon request by the defense.' [Citation.]" (People v. 
    Lawson, supra
    , 215
    Cal.App.4th at p. 119, quoting from People v. 
    Anderson, supra
    , 51 Cal.4th at p. 998.)
    "[T]he rationale of Anderson is applied with equal force to the defense of mistake of fact, or
    any other defense [e.g., claim of right] that operates only to negate the mental state element
    of the crime." (Id., at p. 117.)
    Out-on-Bail Enhancement
    The trial court found true an enhancement allegation that, when appellant committed
    the felony offense of resisting an executive officer, he was out on bail for an earlier offense
    in another case. (§ 12022.1, subd. (b).) After suspending the imposition of sentence and
    10
    placing appellant on probation, the court dismissed the other case in furtherance of justice
    pursuant to section 1385. Appellant claims that, because of this dismissal, "[t]he sentencing
    enhancement should be permanently stayed." Appellant reasons that "a conviction for the
    criminal charge on the primary [earlier] offense is an essential prerequisite to the imposition
    of the 'on bail' enhancement." (In re Ramey (1999) 
    70 Cal. App. 4th 508
    , 512.)
    We agree with the People that appellant's claim "is not ripe for appellate review"
    because the trial court suspended the imposition of sentence and placed him on probation.
    Thus, appellant will not be sentenced if he successfully completes probation. If appellant's
    probation is revoked and the court imposes a sentence that includes a prison term for the
    out-on-bail enhancement, appellant may seek appellate review of the sentence. "[I]t is well
    settled that matters which are not ripe for adjudication should ordinarily be left to a future
    forum." (People v. Ybarra (1988) 
    206 Cal. App. 3d 546
    , 550.)
    Disposition
    The judgment is affirmed.
    CERTIFIED FOR PUBLICATION
    YEGAN, J.
    We concur:
    GILBERT, P. J.
    PERREN, J.
    11
    Brian J. Hill, Judge
    Superior Court County of Santa Barbara
    ______________________________
    Mark R. Feeser, under appointment by the Court of Appeal, for Defendant and
    Appellant.
    Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
    Attorney General, Lance E. Winters, Senior Assistant Attorney General, Linda C. Johnson,
    Supervising Deputy Attorney General, Theresa A. Patterson, Deputy Attorney General, for
    Plaintiff and Respondent.
    12