§ 148 is a misdemeanor offense
How later courts described this case
- § 148 is a misdemeanor offense
Written by the judges who cited it.
The opinion
Filed 6/28/12
IN THE SUPREME COURT OF CALIFORNIA
In re M.M., a Person Coming Under )
the Juvenile Court Law. )
____________________________________)
)
THE PEOPLE, ) S177704
)
Plaintiff and Respondent, ) Ct.App. 4/2 E045714
)
v. ) San Bernardino County
) Super. Ct. No. J220179
M.M., a Minor, )
)
Defendant and Appellant. )
____________________________________)
Penal Code section 148, subdivision (a)(1) (section 148(a)(1)) makes it a
misdemeanor to “willfully resist[], delay[], or obstruct[] any public officer, peace
officer, or . . . emergency medical technician . . . in the discharge or attempt to
discharge any duty of his or her office or employment . . . .” (§ 148(a)(1), italics
added.) Law enforcement personnel have long been considered public officers
within the meaning of section 148(a)(1).
A “school security officer” (Ed. Code, § 38001.5, subd. (c)) is a public
safety officer employed by a school district and charged with “ensur[ing] the
safety of school district personnel and pupils and the security of the real and
personal property of the school district.” (Id., § 38000, subd. (a).) School security
officers, although not sworn peace officers, work in partnership with local law
1
enforcement agencies to achieve the statutory goals of ensuring the safety of
persons and property on public school premises, and are considered by law
“supplementary to city and county law enforcement agencies.” (Ibid.)
The question in this case is whether a school security officer is a “public
officer” for purposes of a misdemeanor charge of willfully resisting, delaying, or
obstructing a public officer in violation of section 148(a)(1). As will be explained,
the legislative history of section 148(a)(1) reflects that the term “public officer” as
used therein has long been understood to include public officials and employees
who perform law enforcement-related duties in connection with their office or
employment. School security officers plainly fall within that category of public
officers. Employed by local school districts, with their public duties specifically
defined in the Education Code, school security officers work in partnership with
local law enforcement officers to protect the safety of persons and property on
public school premises. We conclude that school security officers, like sworn
peace officers, fall within the protection of section 148(a)(1). Because the Court
of Appeal below reached a contrary conclusion, its judgment will be reversed.
STATEMENT OF FACTS AND PROCEDURAL BACKGROUND
On January 30, 2008, the security department at Arroyo Valley High
School in San Bernardino received a call regarding vandalism (“tagging”)
occurring on campus in the vicinity of the baseball field. School security officers1
Bryan Butts, Oscar Ramos and Ron Meyer responded directly to the scene, while
San Bernardino City Unified School District peace officer Alfredo Yanez drove
his patrol car around the perimeter of the campus.
1 When testifying at the jurisdictional hearing, Officers Butts and Ramos
referred to themselves as “campus security officers.” However, the Education
Code refers to a security officer employed by a public school district as a “school
security officer.” (Ed. Code, §38001.5; see also Pen. Code, § 627.7.) As such, we
shall refer to Officer Butts as a school security officer.
2
When the school security officers arrived at the scene, they saw a group of
10 or more students scatter. Officer Butts, who was in uniform, pursued one
group of three or four students, one of whom was M.M. (the minor), as they ran
north towards Baseline Street. Officer Butts yelled to the group several times to
stop. The officer was well acquainted with the minor and yelled directly to him by
name, many times, to stop. The minor continued to run, jumping a locked gate
and then a chain link fence. During the pursuit, Officers Butts and Ramos saw the
minor throw a white object on the ground that looked like a spray paint can.
Eventually the minor exited the campus and encountered Officer Yanez. The
minor immediately submitted to that officer‟s command to stop and was arrested.
The officers observed what appeared to be fresh graffiti on the wall of a campus
building next to the baseball field. A water bottle, but no spray paint can, was
found in the area where the minor was observed to have thrown an object while
fleeing.
On April 25, 2008, the San Bernardino County District Attorney‟s Office
filed an amended petition pursuant to Welfare and Institutions Code section 602,
subdivision (a), alleging that the minor had resisted or delayed a public officer
(school security officer Butts), a misdemeanor, in violation of Penal Code section
148(a)(1), and had committed misdemeanor vandalism, in violation of Penal Code
section 594, subdivision (b)(2)(A). During the jurisdictional hearing, Officer
Butts testified that his duties as a school security officer included protecting
people and school property, ensuring the basic safety of the school by making sure
persons on campus were not in possession of weapons, narcotics, or contraband,
and investigating or responding to reports of crimes such as vandalism.
At the close of the jurisdictional hearing, the juvenile court found that a
school security officer was a public officer within the meaning of section
148(a)(1), found true the allegation that the minor had resisted or delayed a public
3
officer under that section, and found not true the allegation of misdemeanor
vandalism. The minor was declared a ward of the court and placed on probation in
the custody of his mother.
On appeal, the minor contended his conviction under section 148(a)(1) was
unsupported by substantial evidence because Officer Butts was not a public officer
within the meaning of that section. The Court of Appeal agreed and reversed the
judgment, concluding, as a matter of law, that a school security officer is not a
public officer within the meaning of section 148(a)(1). The court placed principal
reliance on decisions that did not involve a criminal charge under section
148(a)(1) and instead concerned the common law definition of “public officer.”
(See, e.g., People v. Rosales (2005) 129 Cal.App.4th 81 (Rosales); People v. Olsen
(1986) 186 Cal.App.3d 257 (Olsen).)
We granted the People‟s petition for review.
DISCUSSION
The sole question before us is whether a public school security officer is a
“public officer” within the meaning of section 148(a)(1).2
Section 148(a)(1) provides, in full, “Every person who willfully resists,
delays, or obstructs any public officer, peace officer, or an emergency medical
2 The Education Code authorizes the governing board of any public school
district to establish a police or security department. (Ed. Code, § 38000, subd.
(a).) Under section 38001 of that code, “[p]ersons employed and compensated as
members of a police department of a school district, when appointed and duly
sworn, are peace officers, for the purposes of carrying out their duties of
employment pursuant to Section 830.32 of the Penal Code.”
Officer Butts was not a sworn peace officer within the meaning of
Education Code section 38001. Instead, he was a school security officer employed
by the San Bernardino City Unified School District and assigned to the security
department of Arroyo Valley High School in San Bernardino. Hence, the question
before us is whether Officer Butts, in his role as a school security officer, is a
“public officer” within the meaning of section 148(a)(1).
4
technician, as defined in Division 2.5 (commencing with Section 1797) of the
Health and Safety Code, in the discharge or attempt to discharge any duty of his or
her office or employment, when no other punishment is prescribed, shall be
punished by a fine not exceeding one thousand dollars ($1,000), or by
imprisonment in a county jail not to exceed one year, or by both that fine and
imprisonment.” (§ 148(a)(1), italics added.)
When construing any statute, “our goal is „ “to ascertain the intent of the
enacting legislative body so that we may adopt the construction that best
effectuates the purpose of the law.” ‟ ” (City of Santa Monica v. Gonzalez (2008)
43 Cal.4th 905, 919.) “When the language of a statute is clear, we need go no
further.” (People v. Flores (2003) 30 Cal.4th 1059, 1063.) But where a statute‟s
terms are unclear or ambiguous, we may “look to a variety of extrinsic aids,
including the ostensible objects to be achieved, the evils to be remedied, the
legislative history, public policy, contemporaneous administrative construction,
and the statutory scheme of which the statute is a part.” (People v. Woodhead
(1987) 43 Cal.3d 1002, 1008; see also Catlin v. Superior Court (2011) 51 Cal.4th
300, 304; People v. Canty (2004) 32 Cal.4th 1266, 1277.)
The term “public officer” found in section 148(a)(1) is ambiguous on its
face. Indeed, this court long ago observed that “[i]t is difficult, perhaps
impossible, to frame a definition of . . . public officer which will be sufficiently
accurate, both as to its inclusion and its exclusion, to meet the requirements of all
cases.” (Spreckels v. Graham (1924) 194 Cal. 516, 530.) The term “public
officer” is not specifically defined in section 148(a)(1) or anywhere else in the
Penal Code. Since the precise meaning of “public officer” as used in section
148(a)(1) cannot be gleaned from the phrase itself, we turn first to consideration of
the legislative history behind the section‟s language. That history reveals a
longstanding intent on the part of the Legislature to define “public officer” as
5
including those public officials and employees who perform law enforcement
related duties in connection with their office or employment.
1. Legislative history behind use of the term “public officer” in
section 148(a)(1).
Section 148 has its origin in section 92 of California‟s Crimes and
Punishments Act of 1850 (section 92). (See Historical and Statutory Notes,
West‟s Ann. Pen. Code (1999 ed.) foll. § 148, p. 319.) As initially enacted in
1850, section 92 made it a crime for any person to “knowingly and wilfully
obstruct, resist, or oppose any sheriff, deputy sheriff, coroner, constable, marshal,
policeman, or other officer of this state, or other person duly authorized, in
serving, or attempting to serve, any lawful process or order of any court, judge, or
justice of the peace, or any other legal process whatsoever . . . .” (Stats. 1850, ch.
99, § 92, p. 240.) Section 92 thus afforded protection to a broad category of state
and local government officials and their subordinates (“other person[s] duly
authorized”) from any undue interference with their official duties pertaining to
the “serving, or attempting to serve, any lawful process or order of any court,
judge, or justice of the peace, or any other legal process whatsoever.” (§ 92.)
Thereafter, in 1872, in the first codified Penal Code, section 92 was
renumbered as section 148. As originally enacted, section 148 omitted the
enumerated list of specific individuals afforded protection under section 92,
substituting the catchall term “public officer,” and further omitted the language
characterizing the official duties of such persons (“serving, or attempting to serve
. . . any . . . legal process whatsoever”), substituting in its stead broader language
(“any duty of his office”), so that the statute read, in pertinent part, “Every person
who willfully resists, delays, or obstructs any public officer, in the discharge or
attempt to discharge any duty of his office . . . .” (Pen. Code, former § 148, italics
added.)
6
Over a century later, in 1983, Penal Code section 148 was amended by
Assembly Bill No. 158 (1983-1984 Reg. Sess.) to expressly make it a crime to
resist, delay or obstruct any “public officer or peace officer” in the performance of
his or her official duties. (§ 148, as amended by Stats. 1983, ch. 73, § 1, p. 166.)
By that time the case law had long since recognized peace officers as public
officers. (See, e.g., In re William F. (1974) 11 Cal.3d 249, 252-253; In re Bacon
(1966) 240 Cal.App.2d 34, 54; People v. Powell (1950) 99 Cal.App.2d 178, 179;
People v. Martensen (1926) 76 Cal.App. 763, 766-767.) An Assembly committee
analysis of Assembly Bill No. 158 explained that the amendment “makes no
substantive change in the law” and was simply intended to “codify judicial
decisions which have interpreted the term „public officers‟ to include peace
officers.” (Assem. Com. on Criminal Law & Public Safety, Analysis of Assem.
Bill No. 158 (1983-1984 Reg. Sess.) Feb. 9, 1983, p. 1.)
Four years later, in 1987, section 148 was amended once again, by
Assembly Bill No. 462 (1987-1988 Reg. Sess.), to add “emergency medical
technician[s], as defined in Division 2.5 (commencing with section 1797) of the
Health and Safety Code,” to “public officer[s]” and “peace officer[s],” as those
persons falling within the protection of the statute. (Pen. Code, § 148, as amended
by Stats. 1987, ch. 257, § 1, p. 1260.) An Assembly committee analysis of that
bill indicates the amendment was proposed (by the Tuolumne County sheriff‟s
office) because emergency medical technicians were not included within the
statutory definition of those afforded protection from undue interference with the
performance of their duties. (See Assem. Com. on Public Safety, Analysis of
Assem. Bill No. 462 (1987-1988 Reg. Sess.) Mar. 9, 1987.) The addition was
necessary because not all emergency medical technicians are public employees.
(See, e.g., Olsen, supra, 186 Cal.App.3d at pp. 265-266.)
7
In sum, the legislative history of section 148(a)(1) reflects that ever since
the statute was codified in the Penal Code in 1872, the catchall phrase “public
officer” has been understood to include a variety of public officials and employees
who perform law enforcement related duties in connection with their office or
employment. Section 92, the predecessor statute, itself protected a broad category
of persons vested with authority to “serv[e] . . .any lawful process or order of any
court, judge, or justice of the peace, or any other legal process whatsoever.”
(§ 92.) “Policemen” were expressly included in the enumerated list of persons
entitled to such protections. (§ 92.) Thereafter, when the Penal Code was codified
in 1872, the Legislature deleted the long list of persons protected under section 92
and made it a crime to willfully resist, delay, or obstruct “any public officer, in the
discharge or attempt to discharge any duty of his office.” (Pen. Code, former
§ 148.) The Legislature‟s use of the catchall phrase “any public officer” signaled
its intent to give the codified section an even broader application than its
predecessor statute. As explained, peace officers exercising their authority to
make lawful detentions or arrests were recognized as “public officers” under
section 148(a)(1) long before the statutory language was amended in 1983 to
expressly include them.
The legislative history reviewed above likewise supports a conclusion that
school security officers in particular are “public officers” within the meaning of
section 148(a)(1). School security officers have been described by one court as
“peace officers but of a special category.” (In re Frederick B. (1987) 192
Cal.App.3d 79, 88 [finding school security officers public officers under
§ 148(a)(1)], disapproved on other grounds in In re Randy G. (2001) 26 Cal.4th
556, 567, fn. 2.) The position of school security officer is defined by statute as
“any person primarily employed or assigned . . . to provide security services as a
watchperson, security guard, or patrolperson on or about premises owned or
8
operated by a school district to protect persons or property or to prevent the theft
or unlawful taking of district property of any kind or to report any unlawful
activity to the district and local law enforcement agencies.” (Ed. Code, § 38001.5,
subd. (c).)3 School security officers, like peace officers, are uniformed and wear
badges (§ 38003), may carry firearms if required to do so by their employment
when properly trained and certified to do so (§ 38001.5, subd. (b), (d)(1)(C)), and
are subject to other mandatory training and screening requirements. (§ 38001.5,
subds. (b), (d)(1)(A), (2).) The Legislature specifically envisioned that school
security officers would work in partnership with local law enforcement agencies to
ensure the safety of persons and property on public school grounds. (Ed. Code,
§ 38000, subd. (a) [“It is the intention of the Legislature in enacting this section
that a school district police or security department is supplementary to city and
county law enforcement agencies . . . .”].)
2. Statutory objectives and public policy.
Because the term “public officer” as used in section 148(a)(1) is ambiguous
on its face, in addition to examining the legislative history of the statutory
language, we may also consider the “ostensible objects to be achieved” (People v.
Woodhead, supra, 43 Cal.3d at p. 1008) by the statute as well as relevant public
policy considerations. (Ibid.; Catlin v. Superior Court, supra, 51 Cal.4th at p. 304;
People v. Canty, supra, 32 Cal.4th at p. 1277.)
The object to be achieved by Penal Code section 148(a)(1) is the protection
of public officers from those who would willfully resist, delay, or obstruct them in
the performance or discharge of their public duties. We have explained that peace
officers have long been considered public officers within the meaning of section
148(a)(1), and that school security officers, although generally not sworn peace
3 Further undesignated statutory references are to the Education Code (except
§ 148(a)(1)).
9
officers, are public employees charged with the public duty of working in
partnership with such local law enforcement officers to achieve the statutory goals
of ensuring the safety of persons and property on public school premises. (Ed.
Code, § 38000, subd. (a).) Legally enforceable obedience to the directions of
school security officers is required to protect them from undue interference with
the performance of their public duties as they, in turn, work with local law
enforcement personnel to protect both persons and property from “increasingly
diverse and dangerous situations” (§ 38001.5, subd. (a)) occurring on California‟s
public school campuses. It would make little sense to enact statutory protections
for peace officers to deter those who would willfully resist, delay, or obstruct them
in the performance of their official duties, and not afford the same protections to
public school security officers who work in partnership with those peace officers,
performing complementary law enforcement functions. The Legislature could not
in reason have intended otherwise.
Our conclusion is reinforced by consideration of Penal Code section 627.7,
which provides, in relevant part, “It is a misdemeanor punishable by imprisonment
in the county jail . . . or by a fine . . . or by both . . . for an outsider to fail or refuse
to leave the school grounds promptly after the principal, designee, or school
security officer has requested the outsider to leave . . . .” (Italics added.) Once
again, it would make little sense to criminalize the failure by a person
unauthorized to be on a public school campus from heeding a school security
officer‟s request to leave the premises, but then exclude such an officer from the
protection afforded by section 148(a)(1) should the intruder willfully resist or
obstruct the officer‟s attempts to enforce this Penal Code provision.
Our conclusion is also reinforced by consideration of Penal Code section
831.4, subdivision (a), in which the Legislature has declared, “A sheriff‟s or police
security officer is a public officer, employed by the sheriff of a county or police
10
chief of a city, whose primary duty is the security of locations or facilities as
directed by the sheriff or police chief.” (Pen. Code, § 831.4, subd. (a), italics
added.) Although public school security officers are not directly employed by a
county sheriff or city police chief, they are employed by a police or security
department of a public school district, which in turn must be established under the
supervision of a “chief of police” or “chief of security” (Ed. Code, § 38000,
subd. (a)) who was either formerly employed as a peace officer or has undergone
training approved by the Commission on Peace Officer Standards and Training.
(§ 38000, subd. (b).)
Given that the Legislature has denoted a “security officer” employed by a
county sheriff or city police chief, whose primary duty is to secure public
facilities, as a “public officer” in Penal Code section 831.4, subdivision (a), by
parity of reasoning, a school security officer employed by a school district under
the supervision of a chief of police or chief of security, who is charged with the
public duty of “provid[ing] security services . . . on or about premises owned or
operated by a school district” (Ed. Code, § 38001.5, subd. (c)), must likewise fall
within the term “public officer” in Penal Code section 148(a)(1).
Last, because the term “public officer” as used in section 148(a)(1) is
ambiguous on its face, we may also take into account any relevant public policy
considerations in determining whether school security officers fall within the
protection of section 148(a)(1). (Catlin v. Superior Court, supra, 51 Cal.4th at
p. 304; People v. Canty, supra, 32 Cal.4th at p. 1277; People v. Woodhead, supra,
43 Cal.3d at p. 1008.)
Section 32261 declares, “[T]he Legislature . . . recognizes that school
crime, vandalism, truancy, and excessive absenteeism are significant problems on
far too many school campuses in the state.” (Ed. Code, § 32261, subd. (a).) The
section further states, “It is the intent of the Legislature . . . to encourage school
11
districts” and “law enforcement agencies . . . to develop and implement
interagency strategies . . . that will . . . reduce school crime and violence, including
vandalism, drug and alcohol abuse, gang membership, gang violence, hate crimes
and bullying.” (§ 32261, subd. (d).) As noted, in section 38000, subdivision (a),
the Legislature has further declared that school security officers are
“supplementary to [the] city and county law enforcement agencies” with whom
they work.
Given that the Legislature has made clear its intent that school district
police or security departments are to work together with local law enforcement
agencies to achieve the goal of reducing crime on California‟s public school
campuses, as a matter of sound public policy, school security officers who work in
close partnership with local law enforcement officers should be afforded the same
protections against those who would interfere with the performance of their public
safety duties as are the sworn officers with whom they work.
3. Common law definition of “public officer.”
The Court of Appeal concluded that a school security officer is not a public
officer within the meaning of Penal Code section 148(a)(1). The court placed
principal reliance on Olsen, supra, 186 Cal.App.3d 257, and Rosales, supra, 129
Cal.App.4th 81, neither of which decisions directly involved a charge under
section 148(a)(1) or an attempt to thwart a public safety officer in the performance
of his or her duties, and both of which purported to generally define the term
“public officer” based, in part, on the common law definition of “public office,”
which requires “ „ “a tenure of office „which is not transient, occasional or
incidental,‟ but is of such a nature that the office itself is an entity in which
incumbents succeed one another” ‟ ” by election or appointment. (Rosales, supra,
129 Cal.App.4th at p. 86; see Olsen, supra, 186 Cal.App.3d at p. 266, fn. 5.) The
12
minor agrees, urging us to find that, to qualify as a public officer under section
148(a)(1), one must hold a tenured office in which incumbents succeed one
another, and that because a school security officer like Officer Butts does not meet
this requirement, he is not a public officer within the meaning of section 148(a)(1).
In enacting the misdemeanor criminal offense embodied in section
148(a)(1), the Legislature, of course, was under no obligation to incorporate the
common law definition of “public officer” into the definition of the crime. Indeed,
as we have shown, that catchall phrase was inserted in section 148(a)(1) when the
section was first codified in the Penal Code in 1872, long before this court decided
Coulter v. Pool (1921) 187 Cal. 181 (Coulter) and Spreckels v. Graham, supra,
194 Cal. 516, the seminal decisions to which California‟s common law definition
of “public officer” is traceable.
In Coulter, supra, 187 Cal. 181, this court drew on the common law
definitions of “public office” and “public officer” in seeking to define the term
“county officer.” (Id. at pp. 186-187.) Coulter first set forth the generally
understood definition of “public office” as follows: “A public office is ordinarily
and generally defined to be the right, authority, and duty, created and conferred by
law, the tenure of which is not transient, occasional, or incidental, by which for a
given period an individual is invested with power to perform a public function for
the benefit of the public.” (Coulter, supra, 187 Cal. at pp. 186-187.) Coulter next
set forth the principal attributes of a public officer in these words: “A public
officer is a public agent and as such acts only on behalf of his principal, the public,
whose sanction is generally considered as necessary to give the act performed by
the officer the authority and power of a public act or law. The most general
characteristic of a public officer, which distinguishes him from a mere employee,
is that a public duty is delegated and entrusted to him, as agent, the performance of
13
which is an exercise of a part of the governmental functions of the particular
political unit for which he, as agent, is acting.” (Id. at p. 187.)
The Coulter court then conflated the definitions of “public office” and
“public officer” in formulating its definition of “county officer,” as follows: “In
keeping with these definitions, a county officer is a public officer and may be
specifically defined to be one who fills a position usually provided for in the
organization of counties and county governments and is selected by the political
subdivision of the state called the „county‟ to represent that governmental unit,
continuously and as part of the regular and permanent administration of public
power, in carrying out certain acts with the performance of which it is charged in
behalf of the public.” (Coulter, supra, 187 Cal. at p. 187.)
Three years after Coulter was decided, in Spreckels v. Graham, supra, 194
Cal. 516, this court purported to define “public office” and “public officer”
synonymously in the following passage: “It is difficult, perhaps impossible, to
frame a definition of public office or public officer which will be sufficiently
accurate, both as to its inclusion and its exclusion, to meet the requirements of all
cases. But two elements now seem to be almost universally regarded as essential
thereto. First, a tenure of office „which is not transient, occasional or incidental,‟
but is of such a nature that the office itself is an entity in which incumbents
succeed one another and which does not cease to exist with the termination of
incumbency, and, second, the delegation to the officer of some portion of the
sovereign functions of government, either legislative, executive, or judicial.” (Id.
at p. 530.)
Although many public officers hold a “public office” to which they were
elected or appointed, it is far from clear that all public officers do so. As Coulter
explained, the principal attribute of a public officer, “which distinguishes him
from a mere employee, is that a public duty is delegated and entrusted to him, as
14
agent, the performance of which is an exercise of a part of the governmental
functions of the particular political unit for which he, as agent, is acting.”
(Coulter, supra, 187 Cal. at p. 187.) A peace officer, for example, charged with
ensuring the public‟s safety and enforcing the laws of the local governmental
entity which employs him or her, is clearly entrusted with such a public duty.
And, as we have noted, peace officers have long been recognized as public
officers within the meaning of Penal Code section 148(a)(1). (In re William F.,
supra, 11 Cal.3d at pp. 252-253.) Yet it may not be accurate to say that all sworn
peace officers, reserve officers, and officers on assignment to assist outside law
enforcement agencies, although plainly serving and functioning as public officers
in those varying capacities, are each holding a discrete “public office” “in which
incumbents succeed one another, and which does not cease to exist with the
termination of incumbency.” (Spreckels v. Graham, supra, 194 Cal. at p. 530.)
Nevertheless, in construing the language of section 148(a)(1) now before
us, we are confident the Legislature did not purport to adopt the common law
definition of “public officer,” or to require that one hold a “public office” in order
to qualify as a “public officer” under that section. Although “public officer” is not
defined in the section, the Legislature has expressly designated other persons and
public employees as public officers elsewhere in the Penal Code, persons who
clearly do not hold a tenure of public office in which incumbents succeed one
another. (See, e.g., Pen. Code, § 830.14, subds. (a), (g) [conductors performing
fare inspection duties who are employed by a railroad corporation that operates
public rail commuter transit services for that agency designated public officers];
Pen. Code, § 831, subd. (a) [custodial officers employed by a city or county law
enforcement agency to assist in maintaining local custody of prisoners designated
public officers]; Pen. Code, § 831.4, subd. (a) [sheriff or police security officers
charged with securing agency facilities designated public officers]; Pen. Code,
15
§ 831.6, subd. (a) [transportation officers “appointed on a contract basis by a peace
officer to transport a prisoner or prisoners” designated public officers].)
The Legislature‟s designation of these various city and county employees
as public officers in the Penal Code sections noted above is further evidence that
the term “public officer,” as used in Penal Code section 148(a)(1) and elsewhere in
the Penal Code, is not intended to be limited to incumbents elected or appointed to
a fixed term of public office.
Moreover, at the time the Legislature amended section 148(a)(1) to add
“emergency medical technician[s]” to those falling within the protection of the
statute, the section‟s language was further amended to provide that “[e]very person
who willfully resists, delays, or obstructs any public officer, peace officer, or an
emergency medical technician . . . in the discharge or attempt to discharge any
duty of his or her office or employment . . . shall be punished . . . .” (Pen. Code,
§ 148(a)(1), italics added, as amended by Stats. 1987, ch. 257, § 1, p. 1260.) The
addition of the words “or employment” broadens the category of persons falling
within section 148(a)(1)‟s protection, and further signifies the Legislature‟s intent
that application of the section not be restricted to public officials who hold a
tenured “public office.”
We find that the decisions relied upon by the Court of Appeal below, both
of which draw upon the common law definitions of “public officer” and “public
office,” do not control the meaning of the term “public officer” as used in section
148(a)(1).
In Rosales, supra, 129 Cal.App.4th 81, the defendant, the superintendent of
a county park, was convicted of “negligent handling of public moneys by an
officer.” (Id. at p. 83; see Pen. Code, § 425.) The question on appeal was whether
the conviction could stand since the defendant was not an “officer” within the
meaning of section 425. (Rosales, at p. 85; see Pen. Code, § 425 [“Every officer
16
charged with the receipt, safe keeping, or disbursement of public moneys, who
neglects or fails to keep and pay over the same in the manner prescribed by law, is
guilty of [a] felony.”].) Neither section 148(a)(1) nor any other statute expressly
incorporating the term “public officer” was at issue in Rosales. The Attorney
General nonetheless asserted that, regardless whether the defendant was an
“officer” within the meaning of Penal Code section 425, she was a government
employee, and as such, was a “public officer” subject to prosecution under the
statute. (Rosales, supra, 129 Cal.App.4th at p. 85.)
The Rosales court disagreed. In rejecting the Attorney General‟s argument,
the court based its conclusion that the defendant was not a “public officer” on the
definition of “county officer” found in Coulter, supra, 187 Cal. at page 187, i.e.,
as requiring “ „ “a tenure of office „which is not transient, occasional or
incidental,‟ but is of such a nature that the office itself is an entity in which
incumbents succeed one another” ‟ ” by election or appointment. (Rosales, supra,
129 Cal.App.4th at p. 86.) As Rosales did not involve an interpretive question of
the language of section 148(a)(1) or any other statute expressly incorporating the
term “public officer” within its language, the manner in which that decision
purported to define the term “public officer” is of little relevance here.
The decision in Olsen, supra, 186 Cal.App.3d 257, is likewise inapposite.
That case involved a conviction of disobeying the lawful order of a fireman or
“public officer” (See Pen. Code, § 148.2, subd. 2). (Olsen, at p. 259.) In
concluding that a privately employed paramedic was not a “public officer” within
the meaning of Penal Code section 148.2, subdivision (2), the Olsen court chose to
contrast such an employee with a public officer who holds a “public office,” i.e., a
fixed “ „tenure‟ ” of office that “ „exists independently of the presence of a person
in it.‟ [Citation.]” (Olsen, supra, 186 Cal.App.3d at p. 266.) Whatever common
law definitions of “public officer” or “public office” the Olsen court may have
17
relied on for its conclusion, it was clear on the facts of that case that the privately
employed paramedic was not a “public officer” (italics added) within the meaning
of Penal Code section 148.2, subdivision 2.
4. Rule of lenity.
Last, the minor argues that the rule of lenity requires this court to reject the
People‟s interpretation of section 148(a)(1). That rule generally requires that
“ambiguity in a criminal statute should be resolved in favor of lenity, giving the
defendant the benefit of every reasonable doubt on questions of interpretation.
But as we have frequently noted, „that rule applies “only if two reasonable
interpretations of the statute stand in relative equipoise.” [Citation.]‟ [Citations.]”
(People v. Scoria (2010) 48 Cal.4th 58, 65; accord, People v. Lee (2003) 31
Cal.4th 613, 627.)
We find the rule of lenity inapposite here. Although the common law
definition of public officer as it has evolved in the case law may reasonably be
interpreted, in appropriate cases, as requiring a showing of a tenured position or
fixed term of office, this is not such a case. Given the legislative history of section
148(a)(1), and the various other factors discussed above, the term “public officer,”
as used in section 148(a)(1), cannot within reason be interpreted as including that
requirement. As such, we do not find the People‟s and the minor‟s opposing
interpretations of section 148(a)(1) “ „ “in relative equipoise.” ‟ ” (People v.
Soria, supra, 48 Cal.4th at p. 65.) The rule of lenity “has no application where, „as
here, a court “can fairly discern a contrary legislative intent.” ‟ ” (Lexin v.
Superior Court (2010) 47 Cal.4th 1050, 1102, fn. 30; accord, People v. Shabazz
(2006) 38 Cal.4th 55, 68.)
18
CONCLUSION
We conclude that a school security officer, as defined in section 38001.5,
subdivision (c) of the Education Code, is a “public officer” within the meaning of
section 148(a)(1) of the Penal Code. The judgment of the Court of Appeal is
reversed, and the matter remanded for further proceedings consistent with the
views expressed herein.
BAXTER, J.
WE CONCUR:
CANTIL-SAKAUYE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
19
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion In re M.M.
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 177 Cal.app.4th 1339
Rehearing Granted
__________________________________________________________________________________
Opinion No. S177704
Date Filed: June 28, 2012
__________________________________________________________________________________
Court: Superior
County: San Bernardino
Judge: Michael A. Knish, Temporary Judge*
__________________________________________________________________________________
Counsel:
Lauren E. Eskenazi, under appointment by the Supreme Court, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gary S. Schons, Assistant Attorney General, Jeffrey J. Koch, Scott C. Taylor, Steven T.
Oetting and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
*Pursuant to California Constitution, article VI, section 21.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Lauren E. Eskenazi
11693 San Vicente Boulevard, #510
Los Angeles, CA 90049
(323) 821-7889
Marissa Bejarano
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2529