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Name: People v. Pennington
Case #: S222227
Court: CA Supreme Court
District CalSup
Opinion Date: 08/17/2017

A harbor patrol officer is a peace officer only if his or her primary duty is law enforcement in either of two circumstances: (1) when acting on or about the property or (2) when performing necessary duties anywhere in the state. Pennington kicked a harbor patrol officer in the chest after the officer confronted him for trespassing at a marina. He was charged with battery of a peace officer (Pen. Code, §§ 242, 243, subd. (b)), among other related charges. At the request of the prosecution prior to trial, the court ruled that harbor patrol officers are peace officers as a matter of law. At trial, the officer testified that the duties of harbor patrol officers included law enforcement, boating safety, emergency medical response, marine firefighting, and ocean lifeguarding, but he did not testify about what constituted their primary duty. Pennington was found guilty on all counts and appealed, arguing that the evidence was insufficient to prove the officer was a peace officer because no evidence showed his primary duty was law enforcement. The Court of Appeal affirmed the judgment, and the Supreme Court granted review. Held: Reversed. Under Penal Code section 830.33, subdivision (b), a harbor or port police officer is a peace officer if the primary duty of the “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.” Applying rules of statutory construction and agreeing with People v. Miller (2008) 164 Cal.App.4th 653, the court concluded that a harbor patrol officer must have the primary duty of law enforcement to be a peace officer under section 830.33, subdivision (b). Because there was no testimony that the harbor patrol officer’s primary duty was law enforcement, the evidence was insufficient to prove that he was a peace officer. The court reversed the judgment affirming Pennington’s conviction for battery of a peace officer. [Editor’s Note: The court noted that this question has significance beyond the instant case, and the answer may inform the status of officers from agencies where personnel do not have the primary duty of law enforcement, such as BART, transit agencies, airports, railroads, court marshals, bailiffs, and others.]

The full opinion is available on the court’s website here: