SEE CONCURRING AND DISSENTING OPINION

Filed 8/17/17

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, ) S222227

)

v. ) Ct.App. 2/6 B249482

)

BRYAN M. PENNINGTON, ) Santa Barbara County

) Super. Ct. No. 1423213

Defendant and Appellant. )

____________________________________)

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 (Miller), we conclude the statutory language 

 

1 All further citations to statutes are to the Penal Code, except as noted. 
2

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 

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 

 

2 Our decision to reverse defendant‘s misdemeanor conviction for battery 

does not affect the order granting probation. Defendant‘s unchallenged felony 

conviction for resisting an executive officer (§ 69) provides an independent basis 

for that order. 
3

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 ―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].‖ (§§ 69, 243, subd. (b).) For this reason, the court explained, 

defendant would be permitted to ask questions directed to the issue ―whether the 
4

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.‖ 

 

3 In fact, completion of a training course prescribed by the Commission on 

Peace Officer Standards and Training does not make one a peace officer. Rather, 

a ―person described . . . as a peace officer‖ (§ 832, subd. (a)) in the Penal Code 

must complete such a course before ―the exercis[ing] of the powers of a peace 

officer‖ (§ 832, subd. (b)(1)). 
5

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 ―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 
6

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, 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.‖ (§ 243, subd. (b).) A simple battery, 

which is punishable by fine and/or imprisonment of up to six months, ―is any 

willful and unlawful use of force or violence upon the person of another.‖ (§ 242.) 

The maximum term of imprisonment increases to one year ―[w]hen a battery is 

committed against‖ one of 14 categories of persons listed in section 243, 

subdivision (b), including ―a peace officer . . . engaged in the performance of his 

or her duties . . . .‖ (Ibid.) For these purposes, ―  ̳[p]eace officer‘ means any 
7

person defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2‖

of the Penal Code. (§ 243, subd. (f); see §§ 830–832.18 (hereafter chapter 4.5).) 

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.‖ (§ 830.) We have held 

―that the subject of who may exercise the powers of a peace officer is one of 

statewide concern‖ (County of Santa Clara, at pp. 878–879) and that local 

authorities exceed their powers by granting peace officer status except as 

authorized in chapter 4.5 (see County of Santa Clara, at p. 879). 

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 §§ 830.1–830.4, 830.5–830.65, 830.75, 830.15;
8

see generally County of Santa Clara, supra, 3 Cal.4th at pp. 879–880; Service 

Employees Internat. Union v. City of Redwood City (1995) 32 Cal.App.4th 53, 60 

(Service Employees).) In this statutory scheme, only the Attorney General and 

special agents and investigators of the Department of Justice are defined as peace 

officers categorically, simply by reference to their office or job title and without 

further conditions. (§ 830.1, subd. (b).) Most deputy sheriffs and municipal 

police officers are peace officers so long as they are formally appointed to and 

actually employed in that capacity. (§ 830.1, subd. (a); see People v. Lara (1994) 

30 Cal.App.4th 658, 665–667.) In contrast, the Legislature has defined the vast 

majority of peace officers by reference to their ―primary duties‖ or ―primary 

function,‖ and has also imposed geographic, temporal, and other limitations on 

these officers‘ authority. (See §§ 830.1, subd. (c), 830.2–830.38, 830.5, 830.75.) 

Another dozen provisions permit agencies to confer a subset of the powers of 

peace officers, such as the power to arrest, write citations, serve warrants, and/or

carry firearms, on designated personnel who are not peace officers. (See §§ 830.7, 

830.9, 830.11–830.14, 831–831.7.) ―The plain import of this statutory system is 

that the Legislature intended to grant peace officer status, and the powers and 

authority conferred with that status in particular instances, subject to carefully 

prescribed limitations and conditions.‖ (Service Employees, supra, at p. 60.) 

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‖ (§ 830.37, subd. (b)). This language has been held to mean that ―a

person who does not have the primary duty of law enforcement cannot be a  ̳peace 

officer‘ under this statute.‖ (Gauthier v. City of Red Bluff (1995) 34 Cal.App.4th 
9

1441, 1447 (Gauthier).) ―If the Legislature had meant that all firefighters were to 

be peace officers it would have said so.‖ (Id. at p. 1446.) Similarly, deputy 

sheriffs in 32 named counties, employed ―to perform duties . . . relating to 

custodial assignments . . . [are] peace officer[s] . . . only while engaged in the 

performance of the duties of [their] respective employment and for the purpose of 

carrying out the primary function of employment relating to [their] custodial 

assignments . . . .‖ (§ 830.1, subd. (c).) Security officers of Hastings College of 

the Law ―have [the] authority of peace officers only within the City and County of 

San Francisco.‖ (§ 830.4, subd. (c).) And certain investigators employed by state 

regulatory agencies, for example the Department of Business Oversight and the 

State Board of Equalization, whose ―primary duty‖ is the enforcement of the laws 

administered by those agencies, (§ 830.11, subd. (a)(1), (6)), ―are not peace 

officers but may exercise the powers of arrest . . . and . . . to serve [search] 

warrants . . . during the course and within the scope of their employment, if they 

receive a course in the exercise of those powers‖ (id., subd. (a)), but they ―may 

not carry firearms‖ (id., subd. (b)). (See County of Santa Clara, supra, 3 Cal.4th 

at p. 880.) 

The People contend section 830.33, subdivision (b), defined Officer Hubbard 

as a peace officer. The statute, as relevant here, provides: ―The following persons 

are peace officers whose authority extends to any place in the state for the purpose 

of performing their primary duty or when making an arrest . . . . [¶] . . . . 

(b) Harbor or port police[4

]

regularly employed and paid in that capacity by a 

county, city, or district other than peace officers authorized under Section 830.1, if 

 

4 Defendant notes the difference between the statutory term ―[h]arbor or port 

police‖ (§ 830.33, subd. (b), italics added) and Officer Hubbard‘s job title, ―harbor

patrol officer.‖ Defendant does not, however, argue the difference in 

nomenclature necessarily determines Officer Hubbard‘s status. 
10

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), italics added.) A person‘s employment 

title does not determine his or her status as a peace officer under section 830.33. 

As the Attorney General has observed, ―[h]arbor or port police regularly employed 

and paid as such are not necessarily peace officers.‖ (68 Ops.Cal.Atty.Gen. 42, 45 

(1985), interpreting former § 830.31, subd. (h) (Stats. 1984, ch. 211, § 1, p. 661), 

which is identical in relevant part to § 830.33, subd. (b).) Neither do the powers to 

issue citations and to arrest necessarily identify someone as a peace officer, 

because local governments by ordinance may authorize certain employees who are 

not peace officers, including marine safety personnel, to perform those acts. (See 

68 Ops.Cal.Atty.Gen. at p. 45; § 836.5, subds. (a), (d); Harb. & Nav. Code, 

§ 664.)

5 Rather, a harbor patrol officer is a peace officer only if he or she

completely satisfies the applicable statutory requirements. (See 68 

Ops.Cal.Atty.Gen. at p. 45, fn. 7.) Neither party disputes this. The question 

before us is what, exactly, section 830.33 requires. 

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 (§ 830.33, subd. (b)) also appears in statutes governing police 

officers of the San Francisco Bay Area Rapid Transit District (BART), other 

 

5 A local governmental employee whose duties include law enforcement and 

who is authorized to issue citations may be a ―  ̳[c]ode enforcement officer‘ ‖ 

(§ 243, subd. (f)(11)) — one of the 14 categories of persons who can be the victim 

of a battery punishable under section 243, subdivision (b). However, a person 

may not be both a peace officer and a code enforcement officer. (§ 243, subd. 

(f)(11).) No party has suggested the judgment against defendant may be affirmed 

on the ground that Officer Hubbard is a code enforcement officer. 
11

harbor districts, transit agencies, airports, and railroads (§ 830.33, subds. (a), (c)–

(e)), sergeants-at-arms of the Legislature, court marshals, bailiffs and service 

officers, coordinators of security for the judicial branch (§ 830.36, subds. (a)–(c)),

and firefighter/security guards of the Military Department (§ 830.37, subd. (d)). 

Thus, the answer to the question before us may also inform the status of these 

officers and the authority of their agencies to designate, as peace officers,

personnel who do not have the primary duty of law enforcement. 

―  ̳Our fundamental task in construing‘ ‖ section 830.33, as with any statute, 

―  ̳is to ascertain the intent of the lawmakers so as to effectuate the purpose of the 

statute.‘ . . . We begin as always with the statute‘s actual words, the  ̳most 

reliable indicator‘ of legislative intent,  ̳assigning them their usual and ordinary 

meanings, and construing them in context.‘ ‖ (Even Zohar Construction & 

Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 837–838.) 

If the words appear susceptible of more than one reasonable construction, we look 

to other indicia of legislative intent, bearing in mind the admonition that ―[t]he 

meaning of a statute may not be determined from a single word or sentence‖ 

(Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735) and that apparent 

―ambiguities often may be resolved by examining the context in which the 

language appears and adopting the construction which best serves to harmonize 

the statute internally and with related statutes‖ (Hsu v. Abbara (1995) 9 Cal.4th 

863, 871). (See Poole v. Orange County Fire Authority (2015) 61 Cal.4th 1378, 

1393 (conc. opn. of Cuéllar, J.) [―[U]nderstanding whether [a statute‘s] meaning is 

plain is not a project well served by reading statutory provisions as isolated 

fragments.‖].) 

Section 830.33 begins clearly. The statute‘s introductory paragraph plainly 

declares the Legislature‘s intent to define categories of peace officers who possess 

statewide authority to perform their primary duty: ―The following persons are 
12

peace officers whose authority extends to any place in the state for the purpose of 

performing their primary duty or when making an arrest . . . .‖ (Ibid.) The 

ambiguity, if one exists, lies in subdivision (b)‘s statement of the conditions on 

which any given harbor patrol officer‘s status as a peace officer depends: ―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), italics added.) 

Defendant contends the clause set out above in italics (beginning ―if the 

primary duty of the peace officer‖ (§ 830.33, subd. (b)) means that a harbor patrol 

officer, to be a peace officer, must have the primary duty of law enforcement in 

two situations — the first defined geographically (―in or about the properties 

owned, operated, or administered by the harbor or port‖ (ibid.) and the second by 

activity (―when performing necessary duties with respect to patrons, employees, 

and properties of the harbor or port‖ (ibid.)). To read subdivision (b) in this 

manner appears to be necessary if the grant of statewide authority in section 

830.33‘s introductory paragraph is to be meaningful. A harbor patrol officer does 

not need statewide authority when performing his duties ―in or about‖ the harbor 

where he or she is employed. But an officer who must leave the immediate 

vicinity of the harbor to investigate a crime involving the ―patrons, employees, 

[or] properties of the harbor‖ (id., subd. (b)) or to make an arrest for such a crime

(see § 830.33 [introductory par.]), does need statewide authority in order to 

function effectively. 

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 
13

would be considered a peace officer under either of two conditions: ―[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 [2] when [the 

officer is] performing necessary duties with respect to patrons, employees, and 

properties of the harbor or port.‖ (§ 830.33, subd. (b).) ―Under [the] final clause,‖ 

the People contend, ―a harbor police officer achieves peace officer status that is 

limited temporally to those times when he or she is performing necessary duties 

with respect to patrons, employees, and properties of the harbor or port,‖ but 

―aside from the limited times in which [the officer] is performing [those] 

necessary duties . . . would not possess peace officer status or the attendant 

broader statewide authority conferred on a harbor police officer whose primary 

duty is law enforcement.‖ 

The People defend their interpretation of section 830.33 by invoking the ―last 

antecedent‖ and ―nearest reasonable referent‖ canons of statutory construction. 

(See generally People v. Lewis (2008) 43 Cal.4th 415, 492 [―  ̳ ―qualifying words, 

phrases and clauses are to be applied to the words or phrases immediately 

preceding and are not to be construed as extending to or including others more 

remote.‖ ‘ ‖].) By this the People mean the phrase — ―if the primary duty of the 

peace officer is‖ — appears closer in the sentence to the immediately following 

phrase — ―the enforcement of the law‖ — and must therefore modify only that 

phrase and not also the subsequent phrase — ―when performing necessary duties 

. . . .‖ (§ 830.33, subd. (b).) 

The People‘s fragmented interpretation of subdivision (b) is difficult to 

harmonize with section 830.33 as a whole. As noted, the statute‘s introductory 

paragraph plainly shows the Legislature intended to define a category of peace 

officers who possess statewide authority. Yet the People concede their 

interpretation of the statute would authorize agencies to appoint peace officers 
14

who would not be able to function in this respect as the Legislature intended 

because they lack the primary duty of law enforcement on which the grant of 

statewide authority is expressly predicated. Certainly the Legislature may define 

peace officers who possess that status only when performing their assigned duties. 

Security officers of the Department of Justice, for example, are peace officers only 

―when performing assigned duties as security officers.‖ (§ 830.4, subd. (b).) But 

section 830.33 does not speak in those terms. Instead, the statute defines peace 

officers who possess both statewide authority to enforce the law on behalf of their 

employing agencies (their primary duty), as well as other specified law 

enforcement powers that are unbound by time, place, or the needs of their 

employing agencies. For example, a person defined as a peace officer in section 

830.33 has the statewide power to make arrests ―as to any public offense with 

respect to which there is immediate danger to person or property, or of the escape 

of the perpetrator of that offense . . . .‖ (Ibid., italics added.) In contrast, the 

―temporally limited‖ harbor patrol officer the People posit, who would be a peace 

officer only ―when performing necessary duties with respect to patrons, 

employees, and properties of the harbor or port‖ (id., subd. (b)), would not be able 

to exercise all of the powers the statute expressly grants. That the People‘s 

interpretation of section 830.33 creates these anomalies strongly suggests their 

interpretation is incorrect. 

A further problem with the People‘s interpretation of section 830.33 is that it 

would seem to grant temporary peace officer status to any harbor patrol officer 

regardless of the nature of his or her duties. Were the People correct, officers

whose only assigned duties were lifeguarding or operating rescue boats, for 

example, would arguably be peace officers whenever they were ―performing 

[those] necessary duties . . . .‖ (§ 830.33, subd. (b).) All public employees 

presumably perform necessary duties throughout the workday. Yet to construe the 
15

statute as making an agency‘s employees peace officers on that basis alone would 

render the Legislature‘s reference to the ―primary duty‖ (ibid.) of law enforcement 

largely superfluous. Such an interpretation is to be avoided if at all possible. 

(Mendoza v. Nordstrom, Inc. (2017) 2 Cal.5th 1074, 1087.) 

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‖ (§ 830.33, subd. (b)), 

―necessarily connotes‖ that harbor patrol officers must have ―law enforcement 

functions.‖ But the statute does not lend itself to this interpretation. To read the 

―necessary duties‖ clause in isolation from the remainder of the statute, as the 

People urge us to do, severs that clause‘s grammatical connection to the only 

language in the statute expressly requiring a harbor patrol officer to have law 

enforcement duties. That language, of course, is the statement that a harbor patrol 

officer‘s ―primary duty,‖ if he or she is to be a peace officer, must be ―the 

enforcement of the law . . . .‖ (Ibid.) One cannot have it both ways. 

In conclusion, defendant‘s interpretation of section 830.33 harmonizes its 

various provisions. The People‘s interpretation does not. Instead, by treating the 

―necessary duties‖ clause (id., subd. (b)) as an isolated fragment, the People‘s 

interpretation would create the anomaly of a peace officer supposedly appointed 

under section 830.33 who cannot exercise the statewide authority granted in that 

statute because he or she lacks the primary duty of law enforcement. The People‘s 
16

interpretation would also create an anomaly within the broader statutory scheme 

set out in chapter 4.5, in which the Legislature has defined many categories of 

peace officers by reference to their primary duties (see Service Employees, supra, 

32 Cal.App.4th at p. 60), presumably intending this requirement will be applied 

consistently (cf. Gauthier, supra, 34 Cal.App.4th at p. 1447 [holding ―a person 

who does not have the primary duty of law enforcement cannot be a  ̳peace 

officer‘ ‖ under a statute imposing that condition]). 

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. (Veh. Code, § 2800.3, subd. (a); see 

Miller, at pp. 657, 660.) The statute under which the defendant was convicted, 

like the battery statute here at issue, defined ―peace officer‖ by reference to 

chapter 4.5 of the Penal Code. (See Veh. Code, §§ 2800.1, subd. (a)(4), 2800.3, 

subd. (a).) The defendant challenged her conviction on the ground the record 

contained insufficient evidence to prove the person who had pursued her was a 

peace officer within the meaning of subdivision (b) of section 830.33. (Miller, at 

p. 665.) The Court of Appeal found insufficient evidence and reversed the 

conviction on that ground. (Id. at pp. 665–668.) 

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 
17

position, he  ̳work[ed] on the beach,‘ explaining that  ̳mostly, I‘m a rescue boat 

operator.‘ He had the authority to issue citations, detain individuals and make 

arrests. On the day of the incident, Hamilton was wearing a long-sleeved white 

polo shirt with the fire department insignia and his name on it, red shorts and 

thongs.‖ While pursing the defendant on the bicycle path, Hamilton drove a red 

truck with ―Long Beach Fire Department rescue markings‖ and ―equipped with a 

light bar on top and a siren.‖ (Id. at p. 658.) 

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 section 830.33 the People propose here, 

namely, that the statute defines a harbor patrol officer as a peace officer during 

whatever time he is ―performing necessary duties with respect to . . . the harbor or 

port‖ (§ 830.33, subd. (b)) ―without regard to whether [the officer‘s] primary duty 

is enforcement of the law‖ (Miller, at p. 667, fn. 9). ―This definition,‖ the Miller 

court reasoned, ―would bestow peace officer status on a broad category of 

employees who perform no law enforcement functions, and cannot be reconciled 
18

with prior decisions‘ strict interpretation of the provisions of chapter 4.5 . . . .‖ 

(Ibid.) For the reasons set out above, we agree with Miller: A harbor patrol 

officer must have the primary duty of law enforcement to be a peace officer under 

section 830.33, subdivision (b). 

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 section 830.33, subdivision (b), but incorrectly based that legal conclusion 

on his having completed an orientation program. (See ante, at p. 4 & fn. 3.)

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 . . . .‖ (§ 830.33, subd. (b), italics added.) On appeal the People have 

advanced the theory that, ―while Officer Hubbard also had duties unrelated to law 

enforcement, the jury could reasonably infer that the most important purpose of 

his employment was enforcement of the law in the harbor.‖ Assuming for the 

sake of argument the People‘s new theory reflects a valid definition of the 

statutory term ―primary duty‖ (ibid.), the theory would not justify affirming the 

conviction. ―Appellate 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. 
19

8; see Chiarella v. United States (1980) 445 U.S. 222, 236 [―we cannot affirm a 

criminal conviction on the basis of a theory not presented to the jury‖].) In any 

event, one searches the record in vain for evidence supporting the People‘s theory. 

Indeed the People had no reason to offer evidence concerning Officer Hubbard‘s 

primary duty because the court‘s pretrial rulings had relieved them of any burden 

to prove the essential fact that he was a ―peace officer‖ and, thus, one of the 

persons listed in section 243, subdivision (b). 

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].) 
20

III. DISPOSITION 

The judgment of the Court of Appeal is reversed to the extent it affirms 

defendant‘s conviction for battery under section 243, subdivision (b). In all other

respects, the judgment is affirmed. 

WERDEGAR, J.

WE CONCUR:

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.
1

CONCURRING AND DISSENTING OPINION BY KRUGER, J.

Like the majority, I understand Penal Code section 830.33 to mean that a 

harbor police officer is a ―peace officer‖ under that section only if his or her 

―primary duty‖ is ―enforcement of the law,‖ and I would reverse the Court of 

Appeal‘s decision to the contrary. (Pen. Code, § 830.33, subd. (b) 

(section 830.33(b)).) Unlike the majority, however, I do not think we can decide 

that the trial evidence was insufficient to show that Officer Hubbard‘s ―primary 

duty‖ was law enforcement unless we first decide what the term means. This is, 

admittedly, not an easy task — both because the parties have barely touched on 

the issue in their briefing, and because whatever we say about the issue in the 

context of this criminal battery prosecution under Penal Code section 243 would 

also likely have ramifications for many other statutes that incorporate the very 

same definition of ―peace officer‖ for very different purposes. But I do not think 

we can avoid the task, as the majority does, by assuming for argument‘s sake that 

the People have correctly interpreted the term as referring to an officer‘s ―most 

important‖ duty, and then professing inability to find record evidence to support 

the conclusion that Officer Hubbard‘s ―most important‖ duty was law 

enforcement. (See maj. opn., ante, at p. 18.) The People‘s argument has its 

problems, but it is not clear to me that record support is one of them.

The meaning of section 830.33(b)‘s ―primary duty‖ requirement is a 

difficult threshold question that warrants more attention than the parties have 
2

given it. Rather than attempt to decide the question here, I would remand to allow 

the Court of Appeal to consider the question in light of full briefing by the parties.

I.

To understand the difficulties the question poses, some background is in 

order. Defendant Bryan M. Pennington was found guilty of violating Penal Code 

section 243, subdivision (b) (section 243(b)), which provides for enhanced 

penalties for a person who commits battery against certain specified victims — a 

list that includes peace officers, custodial officers, firefighters, emergency medical 

technicians, and lifeguards, among others. Section 243 defines the term ―  ̳[p]eace 

officer‘ ‖ by reference to the definition in ―Chapter 4.5 (commencing with Section 

830) of Title 3 of Part 2.‖ (Pen. Code, § 243, subd. (f)(1).) The portion of chapter 

4.5 relevant here is section 830.33, which defines various categories of peace 

officers with statewide authority to perform their ―primary duty,‖ as well as to 

carry out arrests under certain circumstances. This definition includes, in pertinent 

part, ―[h]arbor or port police regularly employed and paid in that capacity by a 

county, city, or district . . . 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.‖ (Id., § 830.33(b).) The phrase 

―primary duty‖ is used throughout chapter 4.5 to define other categories of peace 

officers. (See, e.g., § 830.31, subds. (a), (b), (c)(1), (d); id., § 830.32, subds. (a), 

(b); id., § 830.33, subds. (a), (c), (d), (e)(1); id., § 830.34, subds. (a), (b), (c), (d); 

id., § 830.35, subds. (a), (b), (c); id., § 830.36, subds. (a), (b), (c); id., § 830.37, 

subds. (a), (b), (c), (d); id. § 830.38, subd. (a); see also maj. opn., ante, at pp. 7–

11.)

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 
3

here: ―There are many problems with this statute. First and foremost is that it 

purports to define a peace officer but uses the term peace officer in the definition. 

Second, . . . the various clauses can be construed to relate to different 

antecedents.‖ (Gauthier v. City of Red Bluff (1995) 34 Cal.App.4th 1441, 1445

(Gauthier) [discussing Pen. Code § 830.37].) I agree with the majority, however, 

that the better reading of section 830.33(b) is that a harbor police officer is a peace 

officer under that section only if the officer‘s ―primary duty‖ is law enforcement. 

An officer with no law enforcement-related duties does not move in and out of 

―peace officer‖ status for purposes of section 830.33(b) — with the concomitant 

statewide authority to perform the ―primary duty‖ and to make arrests for public 

offenses — depending on whether the officer is performing ―necessary‖ duties 

such as lifeguarding or operating rescue boats. (Maj. opn., ante, at p. 14.)

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 

 

1 Compare, for example, Penal Code section 186.22, subdivision (f), which 

defines ―  ̳criminal street gang‘ ‖ to include certain groups that, among other 

things, ―hav[e] as one of [their] primary activities the commission of‖ certain 

criminal acts. We have interpreted that language to mean that the ―occasional 

commission of those crimes by the group‘s members,‖ as opposed to ―consistent[] 

and repeated[]‖ commission of the enumerated crimes, will not render a particular 

group a criminal street gang. (People v. Sengpadychith (2001) 26 Cal.4th 316, 

323–324.)
4

defendant agreed. This is indeed a standard definition of the word ―primary,‖ but 

the standard definition is not much help. Is the importance — the primariness —

of the officer‘s law enforcement duties to be measured by the amount of time the 

officer spends performing them? By the qualitative significance of the officer‘s 

law enforcement functions? Or by some other measure altogether? 

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., Lab. Code, § 4709 [scholarships for dependents of certain 
5

peace officers]; Lab. Code, § 4850, subd. (b)(11) [disability payments for, among 

others, ―[h]arbor or port police officers, wardens, or special officers of a harbor or 

port district or city or county harbor department under subdivision (a) of Section 

830.1 or subdivision (b) of Section 830.33 of the Penal Code‖]; Gov. Code, 

§ 22820 [health benefits for families of certain peace officers]; see also, e.g., Gov.

Code, § 3301 [Public Safety Officers Procedural Bill of Rights Act, applicable to 

―all peace officers specified in [Penal Code] Section[] . . . 830.33, except 

subdivision (e)‖].) And the Legislature has also, of course, incorporated the same 

definitions by reference in certain criminal statutes, including section 243 of the 

Penal Code. (See Stats. 1980, ch. 1340, § 2.2, pp. 4718–4719; see also Pen. Code, 

§ 243, subd. (f)(1); cf. id., § 190.2, subd. (a)(7) [murder special circumstance 

applicable when ―[t]he victim was a peace officer, as defined in‖ one of several 

sections of chapter 4.5]; People v. Thomas (2012) 53 Cal.4th 771, 817 [discussing 

special circumstance].)

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 
6

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 
7

must, as a general rule, be able to say what it was, precisely, that the People were 

required to prove.

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. 
8

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 
9

under section 830.33(b), regardless of whether his ―primary duty‖ was law 

enforcement, so long as he was engaged in ―necessary duties‖ at the time of the 

battery. We hold today that was error. The error affected several aspects of the 

Court of Appeal‘s reasoning in affirming defendant‘s conviction, including the 

court‘s conclusion that an erroneous jury instruction was harmless. (See maj. 

opn., ante, at p. 6.) A remand would permit the Court of Appeal to reconsider its 

judgment in light of our holding. And it would further allow the parties to 

squarely address the follow-on interpretive question they have, until now, largely 

bypassed: How should the prosecution go about proving the nature of a harbor 

patrol officer‘s ―primary duty‖?

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 (Cal. Rules of Court, rule 8.516, 

subds. (a)(1), (b)(2)), is the question whether section 830.33(b) requires that an 

officer‘s ―primary duty‖ be ―the enforcement of the law‖ (§ 830.33(b)). The 

majority implicitly agrees, as it decides precisely that question. We need not —

and, I think, should not — decide anything more in the absence of full briefing and 

argument on the question of what ―primary duty‖ means. 

In any event, although the majority‘s decision puts an end to this particular 

case, the underlying interpretive question will undoubtedly recur. The Legislature 
10

may wish to clarify the matter, in consideration of the many provisions that 

incorporate the same statutory definition for so many disparate statutory purposes.

KRUGER, J.

I CONCUR:

CANTIL-SAKAUYE, C. J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Pennington

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 229 Cal.App.4th 1376

Rehearing Granted

__________________________________________________________________________________

Opinion No. S222227

Date Filed: August 17, 2017

__________________________________________________________________________________

Court: Superior

County: Santa Barbara

Judge: Brian Hill

__________________________________________________________________________________

Counsel:

Mark R. Feeser, 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.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Mark R. Feeser

3940-7174 Broad Street

San Luis Obispo, CA 93401

(805) 542-0189

Theresa A. Patterson

Deputy Attorney General

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

(213) 620-6004