TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNEY GENERAL State of California

DANIEL E. LUNGREN Attorney General

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OPINION : : No. 97-1006 of :

: February 25, 1998 DANIEL E. LUNGREN : Attorney General :

: ANTHONY M. SUMMERS :

Deputy Attorney General :

:

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THE HONORABLE RUBEN S. AYALA, ME MBER OF THE CALIFORNIA SENATE, has requested an opinion on the following questions:

1. Is a county sheriff authorizedto investigate criminal acts alleged to have occurred at a state correctional facility?

2. Under what circumstances, if any, may a county sheriff decline to investigate criminal acts alleged to have occurre d at a state correc tional facility?

CONCLUSIONS

1. A county sheriff is authorized to investigat e criminal acts alleged to have occurred at a state correctional facility.

2. A county sheriff may decline to investigate criminal acts alleged to have occurred at a state correctional facility when, for exampl e, the crime report is patently frivolous, a preliminary investigation shows the allegations to be without merit, or he has an agreement that another law enforcement agency having juri sdiction over the matter will carry out the appropriate investigation.

ANALYSIS

1. Investigative Authority of the SheriffThe first question to be resolved is whether a county sheriff has the authority to investigate crimes allegedly committed at a state prison. We conclude that a sheriff has such authority.

The office of sheriff is established by the C onstitution (Cal. Const., art. XI, § 1, subd. (b)) and by statute (Gov. Code, § 24000). However, as we observed in 56 Ops.Cal.Atty.Gen. 390, 390 (1973):

"The office of sheriff has ancient early feudal roots. A sheriff was both the chief executive officer and the conservator of the peace in his county or shire. His duties were often accomplished through agent deputies acting in his name. These early common law concepts were a part of early Californi a common and statutory law and to a large part con tinue to the present."

We have characterized a sheriff as having the position of chief law enforcement officer in the county. (50 Ops.Cal.Atty.Gen. 64, 67 (1967).) Th e jurisdiction of a sheriff to investigate crimes extends throughout the c ounty, including incorporated cities. (8 Ops.Cal.Atty.Gen. 149, 150-151 (1946).) The fact that a sheriff has concurre nt jurisdiction with a c ity police chief within the boundaries of a city does not dimini sh the authority of the sheriff. ( People v. Scott (1968) 259 Cal.App.2d 268, 280; 8 Ops.Cal.Atty.Gen., supra , 150.)

The authority of a sheriff ex tends to state-owned property. Footnote No. 1 State facilities are subject to the same laws as the surrounding territory, and those laws may be implemented and enforced by the sheriff, who is an officer of the county, which is in turn a political subdivision of the state. (Cal. Const., art. XI , § 1.) In 50 Ops.Cal.Atty.Gen. 64, supra , we considered the authority of a sheriff to make arrests and investig ate offenses within a state park administered by the California Department of Parks and Recreatio n. We concluded that th e jurisdiction of the sheriff was concurrent with that of state park peace officers and that th e powers given to the latter officers were not in derogationof the authority of the sheriff. ( Id ., at p. 69; see also 36 Ops.Cal.Atty.Gen. 198, 200 (1960).)

We reach the same conclusion with respect to th e authority of a sheriff to investigate crimes committed on the grounds of state correctional fac ilities. While state correctional officers may have concurrent powers to make arrests and investigate such crimes (see Pen. Code, §§ 830.2, subd. (d); 830.5. subds. (a) and (b)), that fact does notdeprive the sheriff of his authority to make an investigation. Moreover, although the sheriff is not required to obtain the consent of the Department of Corrections in order to investigat e a crime at a correctional facility, the Director of Corrections has formalized the practice of referring criminal investigations to local law enforcement officers, notwithstanding the director 's authority to manage and control correctional facilities. (Pen. Code, § 5054.) With certain ex ceptions not relevant here, the director's administrative practice is to have criminal inve stigations conducted by a local law enforcement agency under the following ad ministrative regulation:

". . . all criminal misconduct by persons unde r the jurisdiction of the department [of corrections] or occurring on [correctional] facil ity property shall be referred by the institution head or designee to appropriate authorities for po ssible investigation and pr osecution . . . ." (Cal. Code Regs, tit. 15, § 33167, subd. (a).)We thus conclude that a sheriff has the authority to investigate criminal acts alleged to have occurred on the grounds of a st ate correctional facility.

2. Declining To Investigate

The second question presented is whether a sheri ff, assuming he has au thority to investigate criminal acts alleged to have been committed ata state prison, may decline to investigate the allegations. We conclude that a sheriff has the discretionary authority to decline to investigate alleged criminal activities in specified circumstances.

A sheriff has a general duty to investigate crimes in his jurisdicti on and arrest those who have committed public offenses. (See Coffee v. Superior Court (1905) 147 Cal. 525, 530; Los Angeles Free Press, Inc. v. City of Los Angeles (1970) 9 Cal.App.3d 448, 457; Pitchess v. Superior Court (1969) 2 Cal.App.3d 653; 657; 50 Ops.Cal.Atty.Gen., supra , 67-68; 36 Ops.Cal.Atty.Gen., supra , 200; 8 Ops.Cal.Atty.Gen., supra , 151.) "The sheriff shall preserve peace . . . ." (Gov. Code, § 26600.) "The sheriff shall arrest and take before the nearest magistrate for examination all persons who attempt to co mmit or who have committed a public offense." (Gov. Code, § 26601.) "The sheriff shall prevent and suppress any affrays, breaches of the peace, riots, and insurrections which come to his knowledge, and inves tigate public offenses which have been committed." (Gov. Code, § 26602.)

Nevertheless, a sheriff may exercise some de gree of discretion in in vestigating criminal activity. (See Johnson v. State of California (1968) 69 Cal.2d 782, 793-797; Gates v. Superior Court (1995) 32 Cal.App.4th 481, 503, 506-507; Newton v. County of Napa (1990) 217 Cal.App.3d 1551, 1560; Constance B. v. State of California (1986) 178 Cal.App.3d 200, 208, fn. 8; Green v. City of Livermore (1981) 117 Cal.App.3d 82, 87; Mann v. State of California (1977) 70 Cal.App.3d 773, 778; Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6, 8; McCarthyv. Frost (1973) 33 Cal.App.3d 872, 875.) Accordingly, we do not believe that a sheriff must investigate patently frivolous charges. Also, a cursory, preliminary investigation may show the allegations to be without merit, resulting inno further investigation being necessary.

Significantly, a sheriff may not be the only la w enforcement officer with jurisdiction to investigate a particular offense. (See Pen. C ode, § 800.1, subd. (a)(1).) In similar circumstances to those present here, we concluded that "admin istrative understanding and comity, subject to the availability of appropriations" may control the extent and nature of the operations of law enforcement agencies with concurrent jurisdictio n over an alleged criminal offense, such as between a sheriff and state park peace officers each having jurisdiction over a crime committed within a state park:

"State park peace officers are not clothed with all the powers of the sheriff, and they have authority to make arrests for and to investigate al l public offenses within the confines of the State Park System. The sheriff has the power and duty to make arrests for and to investigate offenses within Folsom Lake State Recreation Area, a part of the State Park System , and his jurisdiction is concurrent with that of the state park peace offi cer. The extent and nature of the operations of either is a matter of administrative understanding and comity, subject to the availability of appropriations. There is no authority for the Director of Parks and Recreation to pay the countyfor police services which the county already owes to all within its politic al confines, including a state park unit. The powers given to state park peace officers are not in derogation of the authority of the sheriff." (50 Ops.Cal.Atty.Gen., supra , 69.)

"Administrative understanding and comity" does not necessarily require a formal joint powers agreement or contract between agencies with concurrent jurisdiction in order to avoid a duplication of law enforcement efforts. On the othe r hand, a sheriff must be satisfied that serious criminal charges will be investig ated by some law enforcement agency with jurisdiction to act. In People v. Mullin (1961) 197 Cal.App.2d 479, 487, the court ruled that when a sheriff ("appellant") received serious complaints of felo ny child abuse, he had th e duty to investigate the matter or at least refer the matte r to another government agency fo r appropriate investigation:

"Appellant had been notified through two differe nt sources that a serious felony had been committed. As we have noted, appellant does not take the position that the acts did not occur; rather, he attempts to justify his actions upon th e ground that he could not prove his case without the testimony of the girl. Nonetheless, appellan t was under a duty to inve stigate the case after receiving the girl's complaint, and upon learning of a similar complaint made by the aunt to Deputy Lux. If appellant elected not to have his office make aninvestigation, his minimal duty was to notify the district attorne y, or the juvenile authorities, or the grand jury, of the charges, the seriousness of which demanded that some agency of the county make a thorough investigation."

Other possible reasons may exist for declini ng to investigate a particular criminal complaint. Each situation would require evaluati on based upon the specific facts. Of course, a sheriff may be found guilty of willful misconduct in office by failing to investigate a crime without sufficient cause. ( Coffee v. Superior Court
, supra , 147 Cal. at 530; People v. Mullin

, supra , 197 Cal.App.2d at 487; see Steiner v. Superior Court (1996) 50 Cal.App.4th 1771, 1780.)

We conclude that a sheriff may decline to inve stigate criminal acts alleged to have occurred at a state correctional facility when, for exam ple, the crime report is patently frivolous, a preliminary investigation shows the allegations to be without merit, or he has an agreement that another law enforcement agency having juri sdiction over the matter will carry out the appropriate investigation.

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Footnote No. 1 The authority of a sheriff to enforce criminal laws on Indian reservations and federally owned property is beyond the scope of this opinion. (See, e.g., 80 Ops.Cal.Atty.G en. 46 (1997); 58 Ops.Cal.Atty.Gen. 384 (1975).)