______________________________________ 

______________________________________________________________________________ 

OFFICE OF THE ATTORNEY GENERAL
 State of California
 

JOHN K. VAN DE KAMP
 Attorney General
 

OPINION : 

: No. 88-1201 

of : 

: JULY 6, 1989 

JOHN K. VAN DE KAMP :
 Attorney General :
 

:
 CLAYTON P. ROCHE :
 Deputy Attorney General :
 

:
 

THE HONORABLE DAVID D. MINIER, DISTRICT ATTORNEY OF MADERA 

COUNTY, has requested an opinion on the following questions: 

With respect to custodial officers of a county Department of Corrections in a general 

law county: 

1. Does Penal Code section 12031 prohibit such officers from carrying a loaded

firearm on their person or in a vehicle in a public place? 

2. Does Penal Code section 171b prohibit such officers from carrying a firearm into

a courthouse in the performance of their duties? 

3. Does Penal Code section 12403.7, subdivision (a) (8), prohibit such officers from

using tear gas to suppress a jail riot or escape other than in self defense? 

4. Does Penal Code section 4030 prohibit such officers from making a strip search

or body cavity search of a person held in custody for a misdemeanor offense which does not involve

weapons, controlled substances or violence prior to the placement of such persons in the general jail

population? 

5. Does Penal Code section 830.5 empower the officer in charge of such department

to authorize the custodial officers of such department to carry a firearm? 

CONCLUSIONS 

With respect to custodial officers of a county Department of Corrections in a general 

law county: 

1. Penal Code section 12031 does prohibit such officers from carrying a loaded

firearm on their person or in a vehicle in a public place except when transporting prisoners under

the direction of the officer in charge of the Department of Corrections. 

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2. Except where permission has been granted in writing by the sheriff or a chief of

police, Penal Code section 171b does prohibit such officers from carrying a firearm into a

courthouse in the performance of their duties. 

3. Penal Code section 12403.7, subdivision (a) (8), does prohibit such officers from

using tear gas to suppress a jail riot or escape other than in self defense. 

4. Penal Code section 4030 does prohibit such officers from making a strip or body

cavity search of a person held in custody for a misdemeanor offense which does not involve

weapons, controlled substance or violence prior to the placement of such person in the general jail

population with three exceptions discussed in the Analysis. 

5. Penal Code section 830.5 does not empower the officer in charge of such

department to authorize the custodial officers of such department to carry a firearm. 

ANALYSIS 

Section 26605 of the Government Code provides that "[t]he sheriff shall take charge

of and keep the county jail and the prisoners in it." (See also Penal Code, § 4000 et seq.) 

However, in 1957 the Legislature provided an alternative scheme for the 

administration of the county jail system by the enactment of section 23013 of the Government Code.

(Stats. 1957, ch. 243.) That section provides: 

"The board of supervisors of any county may, by resolution, establish a

department of corrections, to be headed by an officer appointed by the board, which

shall have jurisdiction over all county functions, personnel, and facilities, or so many

as the board names in its resolution, relating to institutional punishment, care,

treatment, and rehabilitation of prisoners, including, but not limited to, the county jail

and industrial farms and road camps, their functions and personnel. 

"The boards of supervisors of two or more counties may, by agreement and

the enactment of ordinances in conformity thereto, establish a joint department of

corrections to serve all the counties included in the agreement, to be headed by an

officer appointed by the boards jointly." 

This section was recently held to be constitutional against the claim that it was an improper attempt

to transfer constitutionally granted powers and duties of the sheriff to a statutorily created agency.

(See Beck v. County of Santa Clara (1988) 204 Cal.App. 3d 789, review denied by the California 

Supreme Court.) 

Accordingly, a county board of supervisors at its option may, by resolution, transfer

those "functions, personnel, and facilities" which relate to the "institutional punishment, care,

treatment, and rehabilitation of prisoners" from the sheriff to the new Department of Corrections.

It can transfer all of these "or so many as the board names in its resolution." As succinctly stated

by the Court in Beck v. County of Santa Clara, supra, 204 Cal.App.3d at page 803, "[w]e conclude

that the statute [Government Code, section 23013] authorizes a county to assume all or a portion of

the jail function, as it sees fit." 

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Madera County, a nonchartered county, is one of several counties in the state which

have availed themselves of the provisions of section 23013 of the Government Code.1/ Using the

terminology of the statute, the Board of Supervisors by Resolution Nos. 77-416 and 78-514

transferred all the county jail function to a new Department of Corrections to be under the

administrative jurisdiction and control of a Director of the Department of Corrections. That officer 

is appointed by and is responsible to the Board of Supervisors. 

Crucial to the questions presented for resolution herein is the scope of this transfer,

that is, what is included in a transfer of all the county jail function from the sheriff to a Department 

of Corrections. In assessing this, the following rule of construction is material. "[W]here the main

purpose of the statute [in our case, Government Code section 23013] is expressed the courts will

construe it so as to effectuate that purpose by reading into it what is necessary or incident to the

accomplishment of the object sought." (Rushing v. Powell (1976) 61 Cal.App.3d 597, 604. See also, 

e.g., County of Los Angeles v. Graves (1930) 210 Cal 21, 25; Skidmore v. West. (1921) 186 Cal.212,

218; Clay v. City of Los Angeles (1971) 21 Cal.App.3d 577, 585.) Accordingly, the transfer of all

the county jail function of the sheriff would also constitute the transfer of all the sheriff's powers and

duties for the institutional punishment, care, treatment and rehabilitation of prisoners in the county

jail and other county detention facilities to the Director of the Department of Corrections. (See

People v. Garcia (1986) 178 Cal.App.3d 887, 895.) 

Also crucial to the questions presented herein is the legal status of the custodial

officers who staff a county jail or other county detention facility. Under the provisions of Penal

Code section 831 (cities, and counties having a population of more than 425,000) and Penal Code

section 831.5 (counties having a population of 425,000 or less) such custodial officers are "public

officers" but not "peace officers." (See also People v. Garcia, supra, 178 Cal.App.3d 887.) Thus 

Penal Code section 831.5 contains the following definitions: 

"(a) As used in this section, a custodial officer is a public officer, not a peace

officer, employed by a law enforcement agency of a county having a population of

425,000 or less who has the authority and responsibility for maintaining custody of

prisoners and performs tasks related to the operation of a local detention facility used

for the detention of persons usually pending arraignment or upon court order either

for their own safekeeping or for the specific purpose of serving a sentence therein.

A custodial officer includes a person designated as a correctional officer, jailer, or

other similar title. The duties of custodial officers may include the service of

warrants, court orders, writs and subpoenas in the detention facility or under

circumstances arising directly out of maintaining custody of prisoners and related

tasks."2/ 

1. Santa Clara County, a chartered county, has also recently established such a department. Its 

establishment has been the subject of extensive litigation. See generally Beck v. County of Santa

Clara, supra, 204 Cal.App.3d 789, review denied by the California Supreme Court.

 The department, designated the Department of Detention, is provided for in the county charter.

The answer to the questions presented herein could well depend upon the local charter. (See Cal.

Const. art XI, § 4.) Accordingly, the analysis herein is restricted to noncharter counties which are

governed by general law.

 2. Section 831.5 instead of section 831 is quoted since Madera County and Napa County, the

only counties other than Santa Clara County of which we are aware which have a county

Department of Corrections, both have a population less than 425,000. 

3. 88-1201
 
It is the fact that county custodial officers are not peace officers which gave rise to the questions

presented herein.3/ 

1. Section 12031 of the Penal Code 

The first question presented is whether custodial officers in a Department of

Corrections nonchartered county formed pursuant to section 23013 of the Government Code would

violate section 12031 of the Penal Code if they carried a loaded firearm on their person or in a

vehicle, in a public place. 

Section 12031, subdivision (a) states: 

"(a) Except as provided in subdivision (b), (c), or (d), every person who

carries a loaded firearm on his or her person or in a vehicle while in any public place

or on any public street in an incorporated city or in any public place or on any public

street in a prohibited area of unincorporated territory is guilty of a misdemeanor." 

Subdivision (b) of section 12031 excepts active or retired peace officers and others

not germane to our inquiry such as military personnel, retired federal officers, and persons licensed

to carry weapons or persons engaged in target practice. Subdivision (c) excepts certain persons who

have completed a regular course in firearms training approved by POST, that is, patrol special

officers, animal control officers, zookeepers and harbor policemen. Subdivision (d), the remaining

exception, exempts certain bank guards and messengers, armored car operators, private

investigators, private security guards and in subdivision (d) (4), the only potential category to our

inquiry herein, "[u]niformed security guards or night watchmen employed by a public agency, while

acting within the scope and course of their employment." 

 Except for its applicability to cities and larger counties, section 831 is otherwise virtually

identical to section 831.5 except in two other respects: (1) Subdivision (a) of section 831 does not

contain the second and third sentences contained in section 831.5. The substantive difference 

concerns the duty to serve warrants, orders, writs and subpoenas; and (2) subdivision (b) of 831 of

the Penal Code provides that "[a] custodial officer shall have no right to carry or possess firearms

in the performance of his prescribed duties" whereas subdivision (b) of section 831.5 permits such

officers limited authority to do so, as will be discussed post. 

3. Since sections 831 and 831.5 of the Penal Code both state that "a custodial officer is a public

officer, not a peace officer" we reject the suggestion that they should be held to have such status to

adequately perform their duties. In the absence of controlling statutes such as sections 831 and

831.5 such argument could be made despite the provisions of section 830 et seq. of the Penal Code

which states that the enumeration of peace officers therein is exclusive. See the dicta and other 

statements in cases such as Beck v. County of Santa Clara, supra, 204 Cal.App.3d 789, 804-805; 

Los Angeles County Safety Police Assn. v. County of Los Angeles (1987) 192 Cal.App.3d 1378,

1384-1385; and Boxx v. Board of Administration (1980) 114 Cal.App.3d 79, 85. Nor do we believe 

that statutes in the County Employees Retirement Laws such as section 31904, which may include

"jailers" and "turnkeys" within the definition of "county peace officer" for the purpose of that law 

can override the specific provisions of the Penal Code. (See also Tuolumne County Deputy Sheriffs'

Association v. Board of Administration of the Public Employees' Retirement System (1989)

Cal.App.3d. (1st Dist, Div. 5, 4/26/89); Schaeffer v. California Pub. Employees' Retirement System 

(1988) 202 Cal.App.3d 609.) 

 Any suggested change in the status of custodial officers should be addressed to the Legislature. 

4. 88-1201
 
In determining whether the public "security guard" exception would encompass

county custodial officers, we examine section 12031, subdivision (d) (5) with respect to "uniformed

security guards" hired by private employers. We note that they are exempt from the prohibition of

section 12031 when "regularly employed and compensated as such by persons engaged in any lawful

business . . . while actually engaged in protecting and preserving the property of their employers. 

. . ." (Emphasis added.) We presume that the Legislature intended the term "uniformed security

guards" to have the same meaning in both section 12031, subdivision (d) (4) and (d) (5). The 

function of such guards whether publicly or privately employed is to protect and preserve property. However, as is seen from an examination of sections 831 and 831.5 of the Penal Code, the function 

of custodial officers is to maintain custody of prisoners. Accordingly, we do not believe that the

Legislature intended the term "uniformed security guards" to encompass "custodial officers." 

This, however, still leaves the question whether county custodial officers are granted

the authority to carry a loaded firearm on their person or in a vehicle in public by necessary

implication as a result of the transfer of all the county jail function from the sheriff to the

Department of Corrections pursuant to section 23013 of the Government Code and the board's

resolutions. In this respect, the administrative construction of section 25013 of the Government

Code by the two counties Madera and Napa Counties, the two general law counties which have

Departments of Corrections, is helpful. We are informed that in both counties the custodial officers 

who actually man the detention facilities are not armed. Accordingly, even giving the term

"necessary" its broadest connotation, it is not "necessary" for custodial officers to be armed to

perform the usual jail functions, that is, those which relate to the institutional punishment case, 

treatment and rehabilitation of prisoners. 

Accordingly, except while transporting prisoners as discussed in the next question,

we conclude that county custodial officers are not authorized to carry weapons on their person or

in a vehicle in a public place. A contrary conclusion would not only be contrary to the plain

meaning of section 12031 of the Penal Code, but would also fly in the face of sections 831 and 831.5

of the Penal Code, where the Legislature has prohibited such officers from carrying weapons in the

larger counties, and has prescribed the terms and conditions under which such officers may do so

in the smaller counties. 

Accordingly, we conclude that section 12031 does prohibit such officers from

carrying a loaded firearm on their person or in a vehicle, in a public place. 

2. Section 171(b) of the Penal Code 

The second question presented is whether county custodial officers of a county

Department of Corrections would violate Penal Code section 171(b) if they carried a firearm into

a courthouse in the performance of their duties. 

Section 171(b) provides as follows: 

"Any person, except a person who possesses or transports weapons to be used

as evidence in a court of law, a duly appointed peace officer as defined in Chapter

4.5 (commencing with Section § 830) of Title 3 of Part 2, a full-time paid peace

officer of another state or the federal government who is carrying out official duties

while in California, any person summoned by any such officer to assist in making

arrests or preserving the peace while he or she is actually engaged in assisting such

officer, a person holding a valid license to carry the firearm pursuant to Article 3

(commencing with Section 12050) of Chapter 1 of Title 2 of Part 4, or a person

holding a valid tear gas weapon card pursuant to Section 12403.7 allowing that 

5. 88-1201
 
person to carry the tear gas, who brings or possesses, within any courtroom or

building designated as a courthouse or court building in this state or at any meeting

required to be open to the public pursuant to Chapter 9 (commencing with Section

54950) of Part 1 of Division 2 of Title 5 or Article 9 (commencing with Section

11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code, any

firearm, deadly weapon described in Section 12020 or 653, knife with a blade length

in excess of four inches, the blade of which is fixed or is capable of being fixed in

an unguarded position by the use of one or two hands, tear gas weapons, as defined

in Sections 12401 and 12402, tasers, or stun guns, as defined in Section 244.5, unless

permission to possess that weapon is granted in writing by a duly authorized official

or officials, is guilty of a public offense punishable by imprisonment in the county

jail for not more than one year, or in the state prison." (Emphasis added.) 

Thus, under the terms of section 171b, only peace officers and other designated

persons may bring firearms and other designated weapons into a courthouse "unless permission to

possess that weapon is granted by a duly authorized official or officials."4/ The law is silent as to 

who are such "authorized officials." However, since custodial officers are not peace officers or

otherwise excepted in section 171b, they may not carry firearms into a courthouse without the

requisite permission of a duly authorized official. 

But this does not end our inquiry or analysis. It is to be recalled that section 831.5 

of the Penal Code relating to "custodial officers" is applicable in counties with a population of

425,000 or less. Subdivision (b) of section 831.5 provides: 

"(b) A custodial officer shall have no right to carry or possess firearms in the

performance of his or her prescribed duties, except, under the direction of the sheriff

or chief of police, while engaged in transporting prisoners; guarding hospitalized

prisoners; or suppressing jail riots, lynchings, escapes, or rescues in or about a

detention facility falling under the care and custody of the sheriff or chief of police."

(Emphasis added.) 

Thus, by statute custodial officers in these counties may carry firearms in certain

specified situations while in the performance of their duties under the direction of the sheriff or chief

of police. 

In People v. Garcia, supra, 178 Cal.App.3d 887, the court, in determining that the

Department of Corrections in Madera County was a "law enforcement agency" for purposes of

section 243.1 of the Penal Code (battery upon a "custodial officer"), assumed that one of the

functions which was transferred from the Sheriff to the Director of the Department of Corrections

under the terms of section 23013 of the Government Code and the board's resolution was the duty

to transport prisoners to and from the courthouse. While the duty to transport prisoners to and from

the courthouse may have been transferred to the County Department of Corrections, it does not

follow that the power to authorize the custodial officers who are engaged in transporting prisoners

was also transferred to the Department of Corrections. Section 831.5(b) expressly states that 

4. We note that this exception modifies all the enumerated weapons, and not merely the

immediate antecedent "tasers, or stun guns, as defined in Section 244.5." This is made clear from 

the Legislative Counsel's Digest which accompanied Senate Bill 1799, 1988 Regular Session, which

added this exception as chapter 453, Statutes of 1988. 

6. 88-1201
 
custodial officers are prohibited from carrying or possessing firearms in the performance of their

duties, including the transportation of prisoners, "except, under the direction of the sheriff or chief

of police." We conclude that custodial officers may not carry or possess firearms in the performance

of their duties, including the "transporting of prisoners" unless directed to do so by the sheriff or a

chief of police. 

Penal Code section 171b imposes an additional requirement for custodial officers

who carry or possess firearms within a courthouse. In this situation we believe the "authorized 

officials" who may give the permission to possess a weapon in a courthouse under section 171b are

the sheriff or the chief of police who directed them to carry firearms while engaged in transporting

prisoners. In addition to such direction, Penal Code section 171b requires that the permission to

carry a firearm into a courthouse be in writing and designate the kind of weapon ("that weapon") for

which permission is granted. 

3. Section 12403.7 (a)(8) of the Penal Code 

Penal Code sections 12400-12458 regulate the possession, sale and use of tear gas 

weapons. 

The third question presented is whether section 12403.7, subdivision (a)(8), prohibits

county custodial officers from using tear gas or tear gas weapons not in self defense, but to suppress

a jail riot or an attempted escape. We conclude that it does. Section 12403.7 as material to our 

inquiry provides in part: 

"(a) Notwithstanding any other provision of law, any person may purchase,

possess or use tear gas and tear gas weapons for the projection or release of tear gas

if such tear gas and tear gas weapons are approved by the Department of Justice and

are used solely for self-defense purposes, subject to the following requirements:

[such requirements are then set forth] 

". . . . . . . . . . . . . . . . . . . . . . . . . . . . 

"(8) Any person . . . who uses tear gas or tear gas weapons except in selfdefense or as authorized for training purposes by the department is guilty of a public

offense and is punishable by imprisonment in a state prison for 16 months, or two or

three years or in a county jail not to exceed one year or by fine not to exceed one

thousand dollars ($1,000) or by both such fine and imprisonment, except that if such

use is against a peace officer, as defined in Chapter 4.5 (commencing with Section

830) of Title 3 of Part 2, engaged in the performance of his or her official duties and

the person committing the offense knows or reasonably should know that the victim

is a peace officer, the offense is punishable by imprisonment in a state prison for 16

months or two or three years or by fine of one thousand dollars ($1,000) or by both

such fine and imprisonment. . . . ." 

Penal Code sections 12400-12458 contain a number of exemptions from the

prohibition of section 12403.7. As to peace officers, section 12403 of the Penal Code states: 

"Nothing in this chapter shall prohibit any person who is a peace officer as

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

purchasing, possessing, transporting, or using any tear gas weapon, if such weapon

has been certified as acceptable under Article 5 (commencing with section 12450)

of this chapter and if such person has satisfactorily completed a course of instruction 

7. 88-1201
 
approved by the Commission on Peace Officers Standards and Training in the use

of tear gas." 

Significantly, there is no similar exemption or specific authorization in the law which permits

"custodial officers" to use tear gas weapons except in self defense. 

The only provision we discovered from which one might urge that custodial officers

may use tear gas and tear gas weapons to suppress a jail riot or an attempted escape is section 12404

of the Penal Code, one of the series of sections under discussion herein. It states: 

"Nothing in this chapter authorizes the possession of tear gas or tear gas

weapons in any institution described in Section 4574, or within the grounds

belonging or adjacent to any such institution, [including any jail or county road

camp] except where authorized by the person in charge of such institution." 

(Emphasis added.) 

It might be urged that the emphasized language somehow constitutes an affirmative

authorization for anyone, including county custodial officers, to possess and use tear gas weapons

in the course of their duties if authorized by the person in charge of the county jail or other

institution. 

We believe that section 12404 simply requires persons authorized to use tear gas

weapons other than in self defense (such as peace officers) to be authorized by the person in charge

of the institution to use such weapons within the institution or within the grounds belonging to or

adjacent to the institution. This would include the officer in charge of a county department of

corrections with respect to the jail or other county detention facility. 

Accordingly, since the law contains no exemption for county custodial officers, we

conclude that Penal Code section 12403.7, subdivision (a)(8) does prohibit such officers from using

tear gas to suppress a jail riot or escape other than in self defense. 

4. Section 4030 of the Penal Code 

In 1984 Penal Code section 4030 was enacted to limit the strip and body cavity

searches of persons arrested for minor offenses. The section is quoted in full in the Appendix. We 

summarize the subdivisions applicable to question 4. 

Subdivision (a) sets forth the legislative findings and purposes of the statute. 

Subdivision (b) limits application of the section to persons arrested for misdemeanor

or infraction offenses prior to designated court appearances. 

Subdivisions (c), (d), and (e) define the kinds of searches to which the section applies

including a strip search, a visual body cavity search and a physical body cavity search. 

Subdivision (f) prescribes the conditions required to make a strip search or visual

body cavity search before a detainee is placed in the general jail population. 

Subdivision (g) prescribes when a detainee may be placed in the general jail 

population. 

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Subdivision (h) prohibits any physical body cavity search of a detainee without a

search warrant. 

Subdivision (n) makes conducting or authorizing a search in violation of the section

a misdemeanor. 

We are asked in question 4 whether Penal Code section 4030 prohibits custodial

officers of a county department of corrections from making a strip search or body cavity search of

a person held in custody for a misdemeanor offense which does not involve weapons, controlled

substances or violence prior to placement of such persons in the general jail population. We shall 

refer to a person held in custody under the circumstances specified in the question as a "detainee." 

Subdivisions (b), (f) and (h) authorize certain of the questioned searches under

specified conditions. We shall discuss each in turn. 

Subdivision (b) provides with respect to adults that section 4030 "shall apply only

to prearraignment detainees arrested for infraction or misdemeanor offenses." With respect to

juveniles section 4030 "shall apply only . . . to any minor detained prior to a detention hearing on

the grounds that he or she is a person described in section 300, 601 or 602 of the Welfare and

Institutions Code alleged to have committed a misdemeanor or infraction offense." Thus section 

4030 does not apply to adult detainees after their arraignment or to juvenile detainees after their

detention hearing. Subdivision (g) prohibits placing a detainee in the general jail population when

he or she "is not able to post bail within a reasonable time not less than three hours." Section 4030 

does not prohibit placing a detainee who is not cited and released or released on his own

recognizance in the general jail population after a reasonable time (not less than three hours) for

posting bail has passed. It is not likely that an adult detainee will be arraigned before being placed

in the general jail population but it is possible. Should this occur section 4030 would not prohibit

any search of the detainee after his arraignment. Similarly section 4030 would not prohibit any

search of a juvenile detainee after his or her detention hearing. 

Subdivision (f) prohibits a strip search or body cavity search of a detainee "unless

a peace officer has determined there is a reasonable suspicion based on specific and articulable facts

to believe such person is concealing a weapon on contraband, and a strip search will result in the

discovery of the weapon or contraband." Since custodial officers are not peace officers (Pen. Code, 

§§ 831 831.5) their suspicions would not authorize search of a detainee for weapons or contraband

under this exception. However, a peach officer supervising custodial officers in a county detention

facility (see subd. (d) of Pen. Code §§ 831 & 831.5) or other peace officer with the requisite

"reasonable suspicion" could authorize a strip search of a detainee for weapons or contraband. 

Subdivision (b) prohibits any physical body cavity search of a detainee without a

search warrant. A magistrate may issue a search warrant for a physical body cavity search or other

search (including a strip search or visual body cavity search) if presented with evidence establishing

probable cause for the search. Penal Code section 831.5 provides that the duties of custodial officers

"may include the service of warrants." Thus a search warrant to search detainees of a county

department of corrections may be addressed to and be executed by custodial officers of the

department. (See Pen. Code, § 1530.) 

We conclude that Penal Code section 4030 prohibits a custodial officer of a county

department of corrections from making a strip search or body cavity search of a person held in

custody for a misdemeanor offense which does not involve weapons, controlled substances or

violence prior to the placement of such person in the general jail population except: 

9. 88-1201
 
1. After the person, if an adult, has been arraigned or, if a juvenile, after his or her 

detention hearing. 

2. A strip search authorized by a peace officer having a reasonable suspicion that the

person is concealing a weapon or contraband and that a strip search will result in the discovery of

the weapon or contraband. 

3. Pursuant to a search warrant authorizing the officer to make the search. 

5. Section 830.5 of the Penal Code 

The fifth and final question presented is whether the chief of a county Department

of Corrections can authorize departmental custodial officers to carry firearms under the authority

of Penal Code section 830.5, subdivisions (b) and (c). We conclude that the chief of the department

may not grant such authority pursuant to these provisions. 

As material to our inquiry, section 830.5 provides as follows: 

"The following persons are peace officers whose authority extends to any

place in the state while engaged in the performance of the duties of their respective

employment and for the purpose of carrying out the primary function of their

employment or as required under Sections 8597, 8598, and 8617 of the Government

Code. Except as specified in this section, these peace officers may carry firearms

only if authorized and under those terms and conditions specified by their employing 

agency: 

"(a) A parole officer of the Department of Corrections or the Department of

the Youth Authority, probation officer, or deputy probation officer, or a board

coordinating parole agent employed by the Youthful Offender Parole Board. . . . 

"(b) A correctional officer employed by the Department of Corrections or 

any employee of the Department of the Youth Authority having custody of wards or

any employee of the Department of Corrections designated by the Director of

Corrections or any medical technical assistant series employee designated by the

Director of Corrections and employed by the State Department of Mental Health to

work in the California Medical Facility or employee of the Board of Prison Terms

designated by the Secretary of the Youth and Adult Correctional Agency or

employee of the Department of the Youth Authority designated by the Director of

the Youth Authority or any superintendent, supervisor, or employee having custodial

responsibilities in an institution operated by a probation department, or any

transportation officer of a probation department. 

"(c) The following persons may carry a firearm while not on duty: a parole

officer of the Department of Corrections or the Department of Youth Authority, a 

correctional officer employed by the Department of Corrections or any employee of

the Department of the Youth Authority having custody of wards or any employee of

the Department of Corrections designated by the Director of Corrections. . . ." 

It has been suggested that "the Department of Corrections" as used in section 830.5 encompasses

a county Department of Corrections established pursuant to section 23013 of the Government Code. 

10. 88-1201
 
 

The suggestion is answered in People v. Garcia, supra, 178 Cal.App.3d 887, 894,

wherein the court concluded that a battery upon a county department of corrections custodial officer

was a violation of section 243.1 of the Penal Code. The court stated: 

"The elements of section 243.1 are: (1) a battery; (2) committed against the

person of a custodial officer as defined in section 831; (3) where the person

committing the offense knows or reasonably should know such victim is a custodial

officer engaged in the performance of his duties; and (4) such custodial officer is

engaged in the performance of his duties. (1b) Defendants contend Officer Stoltz

was not a custodial officer within the meaning of section 831. 

"Under section 831, a custodial officer is (1) a public officer, not a peace

officer; (2) employed by a law enforcement agency of a city or county; (3) who has

the authority and responsibility for maintaining custody of prisoners and performing

tasks related to the operation of a local detention facility used for the detention of

persons usually pending arraignment or upon court order either for their own

safekeeping or the specific purpose of serving a sentence. We address each element 

in turn. 

"Section 830 et seq. specify the duties and functions of `peace officers' and

specify those persons who have that status. Correctional, parole, and probation

officers of the Department of Corrections, the Department of the Youth Authority,

and the Youthful Offender Parole Board are deemed `peace officers.' Transportation

officers and employees having custodial responsibilities in an institution operated by

a probation department are also deemed peace officers. (§ 830.5.) However, these 

code sections do not specify county custodial officers as `peace officers.' Section 

830 states: `. . . [N]o person other than those designated in this chapter is a peace

officer.' Thus, Stoltz does not come within the definition of `peace officer.'"

(Emphasis added.) 

In short, in holding that Stoltz, a county custodial officer, was not a "peace officer" within the

meaning of section 830.5 of the Penal Code but a section 831 "custodial officer", the court construed

the Department of Corrections as used in section 830.5 to mean the State Department of Corrections. 

We follow the Garcia case in concluding that the Department of Corrections referred to in Penal

Code section 830.5 means the Department of Corrections of the State of California and does not

include a county department of corrections created pursuant to Government Code section 23013. 

This conclusion is further supported by (1) the use in section 830.5 of the definite

article "the" in referring to the Department of Corrections; (2) the fact that the Department of

Corrections as used therein is set forth as a proper noun, indicating again a particular department

(i.e., the State Department; and (3) the fact that until its amendment in 1980 (compare Stats. 1980,

ch. 1340 with Stats. 1978, ch. 642) section 830.5 specifically used the terminology "the State

Department of Corrections" in subdivision (a) the lead paragraph, in referring to that Department. 

Therefore, in answer to the final question presented, we conclude that section 830.5

does not empower the officer in charge of a county Department of Corrections to authorize his or

her custodial officers to carry a firearm. 

11. 88-1201
 
APPENDIX

§ 4030 [Strip searches] 

(a) The Legislature finds and declares that law enforcement policies and

practices for conducting strip or body cavity searches of detained persons vary

widely throughout California. Consequently, some people have been arbitrarily

subjected to unnecessary strip and body cavity searches after arrests for minor

misdemeanor and infraction offenses. Some present search practices violate state

and federal constitutional rights to privacy and freedom from unreasonable searches

and seizures. 

It is the intent of the Legislature in enacting this section to protect the state and

federal constitutional rights of the people of California by establishing a statewide

policy strictly limiting strip and body cavity searches. 

(b) The provisions of this section shall apply only to prearraignment

detainees arrested for infraction or misdemeanor offenses and to any minor detained

prior to a detention hearing on the grounds that he or she is a person described in

Section 300, 601, or 602 of the Welfare and Institutions Code alleged to have

committed a misdemeanor or infraction offense. The provisions of this section shall

not apply to any person in the custody of the Director of the Department of

Corrections or the Director of the Youth Authority. 

(c) As used in this section, "strip search" means a search which requires a

person to remove or arrange some or all of his or her clothing so as to permit a visual

inspection of the underclothing, breasts, buttocks, or genitalia of such person. 

(d) As used in this section. 

(1) "Body cavity" only means the stomach or rectal cavity of a person, and

vagina of a female person. 

(2) "Visual body cavity search" means visual inspection of a body cavity. 

(3) "Physical body cavity search" means physical intrusion into a body cavity

for the purpose of discovering any object concealed in the body cavity. 

(e) Notwithstanding any other provision of law, including Section 40304.5

of the Vehicle Code, when a person is arrested and taken into custody, that person

may be subjected to patdown searches, metal detector searches, and thorough

clothing searches in order to discover and retrieve concealed weapons and

contraband substances prior to being placed in a booking cell. 

(f) No person arrested and held in custody on a misdemeanor or infraction

offense, except those involving weapons, controlled substances or violence nor any

minor detained prior to a detention hearing on the grounds that he or she is a person

described in Section 300, 601 or 602 of the Welfare and Institutions Code, except for

those minors alleged to have committed felonies or offenses involving weapons,

controlled substances or violence, shall be subjected to a strip search or visual body

cavity search prior to placement in the general jail population, unless a peace officer

has determined there is reasonable suspicion based on specific and articulable facts 

12. 88-1201
 
to believe such person is concealing a weapon or contraband, and a strip search will

result in the discovery of the weapon or contraband. No strip search or visual body

cavity search or both may be conducted without the prior written authorization of the

supervising officer on duty. The authorization shall include the specific and

articulable facts and circumstances upon which the reasonable suspicion

determination was made by the supervisor. 

(g) (1) Except pursuant to the provisions of paragraph (2), no person arrested

and held in custody on a misdemeanor or infraction offense not involving weapons,

controlled substances or violence, shall be confined in the general jail population

unless all of the following are true: 

(i) The person is not cited and released. 

(ii) The person is not released on his or her own recognizance pursuant to

Article 9 (commencing with Section 1318) of Chapter 1 of Title 10 of Part 2. 

(iii) The person is not able to post bail within a reasonable time not less than

three hours. 

(2) No person may be housed in the general jail population prior to release

pursuant to the provisions of paragraph (1) unless a documented emergency exists

and there is no reasonable alternative to such placement. Such person shall be placed

in the general population only upon prior written authorization documenting the

specific facts and circumstances of the emergency. The written authorization shall 

be signed by the uniformed supervisor of the facility or by a uniformed watch

commander. Any person confined in the general jail population pursuant to

paragraph (1) shall retain all rights to release on citation, his or her own 

recognizance, or bail which were preempted as a consequence of the emergency. 

(h) No person arrested on a misdemeanor or infraction offense, nor any

minor described in subdivision (b) shall be subjected to a physical body cavity search

except under the authority of a search warrant issued by a magistrate specifically

authorizing the physical body cavity search. 

(i) A copy of the prior written authorization required by subdivisions (f) and

(g) and the search warrant required by subdivision (h) shall be placed in the agency's

records and made available, on request, to the person searched or his or her

authorized representative. With regard to any strip, visual or body search, the time,

date and place of the search, the name and sex of the person conducting the search

and a statement of the results of the search, including a list of any items removed

from the person searched, shall be recorded in the agency's records and made

available upon request, to the person searched or his or her authorized representative. 

(j) Persons conducting a strip search or a visual body cavity search shall not

touch the breasts, buttocks, or genitalia of the person being searched. 

(k) A physical body cavity search shall be conducted under sanitary

conditions, and only by a physician, nurse practitioner, registered nurse, licensed

vocational nurse or emergency medical technician Level II licensed to practice in this 

state. Any physician engaged in providing health care to detainees and inmates of

the facility may conduct physical body cavity searches. 

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(l) All persons conducting or otherwise present during a strip search or visual

or physical body cavity search shall be of the same sex as the person being searched,

except for physicians or licensed medical personnel. 

(m) All strip, visual and physical body cavity searches shall be conducted in

an area of privacy so that the search cannot be observed by persons not participating

in the search. Persons are considered to be participating in the search if their official

duties relative to search procedure require them to be present at the time the search

is conducted. 

(n) A person, who knowingly and willfully authorizes or conducts a strip,

visual or physical body cavity search in violation of this section is guilty of a

misdemeanor. 

(o) Nothing in this section shall be construed as limiting any common law

or statutory rights of any person regarding any action for damages or injunctive

relief, or as precluding the prosecution under another provision of law of any peace

officer or other person who has violated this section. 

(p) Any person who suffers damage or harm as a result of a violation of this

section may bring a civil action to recover actual damages, or one thousand dollars

($1,000), whichever is greater. In addition, the court may, in its discretion, award

punitive damages, equitable relief as it deems necessary and proper, and costs,

including reasonable attorney's fees. 

14. 88-1201