Filed 9/22/14
                                 CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 SECOND APPELLATE DISTRICT

                                          DIVISION SIX


THE PEOPLE,                                               2d Crim. No. B249482
                                                         (Super. Ct. No. 1423213)
     Plaintiff and Respondent,                            (Santa Barbara County)

v.

BRYAN M. PENNINGTON,

     Defendant and Appellant.


         As against a claim of insufficiency of the evidence, we hold that a harbor patrol
officer who is (1) sworn as a peace officer, (2) supervised by a city police chief, (3) wears a
badge, and (4) carries a police issued firearm, taser, baton, handcuffs, and pepper spray is a
"peace officer" within the meaning of Penal Code section 830.33, subdivision (b) if he or
she performs necessary duties with respect to patrons, employees, and properties of the
harbor or port. 1
         Bryan M. Pennington appeals from the judgment entered after a jury convicted him
of felony resisting an executive officer (§ 69); misdemeanor battery on a peace officer
(§ 243, subd. (b)); misdemeanor trespass (§ 602, subd. (k)); and misdemeanor attempted
petty theft. (§§ 664, 484, subd. (a).) The trial court found true an enhancement allegation
that, when appellant committed the felony offense of resisting an executive officer, he was
out on bail for an earlier offense. (§ 12022.1, subd. (b).) Probation was granted for five
years on condition that he serve 365 days in county jail.



1
    All statutory references are to the Penal Code.
       A Santa Barbara Harbor Patrol Officer was the named victim of the misdemeanor
battery on a peace officer. Appellant contends that (1) the evidence is insufficient to show
that the named victim was in fact a peace officer; (2) the trial court erroneously instructed
the jury that a member of the Santa Barbara Harbor Patrol is a peace officer; (3) the trial
court erroneously precluded appellant from arguing to the jury that the named victim was
not a peace officer; (4) the evidence is insufficient to support his conviction of trespass; (5)
the trial court erroneously failed to instruct sua sponte on the claim-of-right and mistake-of-
fact defenses to attempted petty theft; and (6) the "out-on-bail" sentencing enhancement
must be permanently stayed. We affirm.2
                                             Facts
       Patrick Henry worked as a manager for the City of Santa Barbara Waterfront
Department. He issued keycards to persons who were authorized to enter waterfront private
areas which are not open to the public. The keycards were used to unlock gates to these
restricted areas, which were called "marinas." Only boat owners who rented boat slips and
authorized guests were allowed to enter a marina. A visitor was not permitted to enter
unless he was escorted by a keycard holder. The restrictions on entry to the marinas were
set forth in a section of the Santa Barbara Municipal Code.
       On the entry side of the locked gate to Marina 3 (the Marina), a sign read:
"Unauthorized entry prohibited. Boat owners and authorized guests only." Henry saw
custodial workers exit through the gate. Appellant, who was outside the Marina, ran to the
gate, "caught it before it locked into place," and entered the Marina. Henry recognized
appellant and knew his entry was unauthorized. Appellant was no stranger to the harbor
personnel. On May 5, 2009, he got into a "wrestling match" with a harbor patrol officer.
On July 7, 2012, he threatened to stab a harbor patrol officer. Henry telephoned the Harbor
Patrol Office.



2
 Appellant does not attack the felony resisting an executive officer conviction, and the order
granting probation is reasonably predicated on this conviction alone. Nevertheless, he may
lawfully advance the specified contentions on appeal. We simply observe that even if he
were to prevail on all contentions, we would still affirm the order granting probation.
                                               2
       Richard Hubbard, the named victim of the misdemeanor battery on a peace officer,
responded to Henry's call. He was employed by the City of Santa Barbara as a "Harbor
Patrol officer." Hubbard performed duties "as a law enforcement officer, a boating safety
officer, [an] emergency medical technician, [a] marine firefighter, and [an] ocean lifeguard."
Hubbard "enforc[ed] the law in the harbor district" and patrolled "the marinas on foot, with
vehicles and also on boat[s] . . . just like PD [police department officers] would patrol the
city streets." One of his duties was to assure "that only people that are authorized to be in
the marinas are in there." His supervisor was the Chief of the Santa Barbara Police
Department. He was a sworn peace officer, wore a badge, and had the power to make
arrests. He carried "a department-issued sidearm, taser, baton, handcuffs and OC [pepper]
spray."
       Hubbard and his partner, Harbor Patrol Officer Kelly, entered the Marina. They were
"in full Harbor Patrol uniform." They saw appellant with a coiled hose over his shoulder.
Hubbard said to appellant: "You need to stop. We need to talk to you." Appellant did not
reply and "tried to push . . . through where [Hubbard and Kelly] were standing." The
officers stopped him, and appellant said he was there to get the hose for his friend, Carol,
who had given him permission to take it. Hubbard told appellant "to put the hose back until
[they] could verify his story." Appellant put the hose down and walked away. Hubbard and
Kelly followed him. Hubbard said to appellant: "We're not done. I need to talk to you."
Appellant "kept going," so Hubbard "put [his] hand out on [appellant's] chest to stop him."
Appellant kicked Hubbard in the thigh. The blow hurt and "[l]eft a good-sized bruise."
Appellant "took . . . an aggressive fighting stance," clenched his fists, and kicked Officer
Kelly in the shin. Hubbard grabbed appellant, who "started throwing a bunch of . . . wild
punches and kicks in the air." The kicks were directed toward Hubbard's face.
       Officer Kelly fired his taser at appellant. The taser barb struck appellant's jacket but
did not penetrate his skin. Appellant turned and ran away. Kelly chased appellant and
wrestled him to the ground. Appellant said: "Motherfucker. You're dead. I'm going to kill




                                               3
you." After he was handcuffed, appellant told the officers: "I'm going [to] find you where
you live and kill you in your house. Just wait until I get out and you're dead."3
       The hose belonged to Peter Crane, who owned a houseboat that was docked at the
Marina. He did not authorize appellant to take the hose. Carol Holm had permission to use
Crane's hose to clean her boat, which was near Crane's houseboat.
       Carol Holm testified that she employed appellant as a worker on her boat. After
appellant was arrested, she told the Harbor Patrol that appellant did not have permission to
remove the hose because it belonged to her neighbor. But at trial Holm testified that she had
given appellant permission to take the hose to another location in the Marina. On the date in
question, appellant did not ask Holm for permission to go to her boat and use the hose.
Holm opined that appellant could enter the Marina and work on her boat because he worked
for her.
                    Sufficiency of the Evidence/Battery on a Peace Officer
       Appellant contends that the evidence is insufficient to support his conviction of
misdemeanor battery on a peace officer (§ 243, subd. (b)) because the People failed to prove
that the named victim, Officer Hubbard, was in fact a peace officer. " 'The record must
disclose substantial evidence to support the verdict—i.e., evidence that is reasonable,
credible, and of solid value—such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence
in the light most favorable to the prosecution and presume in support of the judgment the
existence of every fact the jury could reasonably have deduced from the evidence.
[Citation.] . . . A reversal for insufficient evidence "is unwarranted unless it appears 'that
upon no hypothesis whatever is there sufficient substantial evidence to support' " the jury's
verdict. [Citation.]' [Citation.]" (People v. Manibusan (2013) 58 Cal.4th 40, 87.)
       The relevant definition of "peace officer" is found in section 830.33, subdivision (b),
which provides that "[h]arbor or port police" are peace officers if they are "regularly
employed and paid in that capacity by a county, city, or district" and [first clause] "if the


3
 Appellant is fortunate not to have been charged with violating section 422, threatening to
commit a crime that would result in death or great bodily injury.
                                              4
primary duty of the peace officer is the enforcement of the law in or about the properties
owned, operated, or administered by the harbor or port or [second clause] when [the officer
is] performing necessary duties with respect to patrons, employees, and properties of the
employing agency."4 (Italics added.)
       Based on People v. Miller (2008) 164 Cal.App.4th 653 (Miller), appellant argues that
the second clause is of no force or effect and that harbor or port police are peace officers
only if their primary duty is the enforcement of the law. Appellant asserts that, because the
record contains no evidence that Officer Hubbard's primary duty was law enforcement, the
conviction for battery on a peace officer must be reversed.
       In Miller the defendant was convicted of attempting to elude a pursuing peace
officer's vehicle and causing bodily injury. (Veh. Code, § 2800.3.) The officer testified that
he was a " 'harbor patrolman' " employed by " 'the City of Long Beach Fire Department.' "
(Miller, supra, 164 Cal.App.4th at p. 658.) He worked " 'mostly . . . [as] a rescue boat
operator.' " (Ibid.) "He had the authority to issue citations, detain individuals and make
arrests." (Ibid.)
       The Miller court concluded that the defendant's conviction had to be reversed
because "the jury could not conclude beyond a reasonable doubt that [the officer] was
primarily engaged in the enforcement of the law" and was therefore a peace officer. (Miller,
supra, 164 Cal.App.4th at p. 667.) The court noted: "In its brief, [the People did] not
dispute that [the officer's] status as a peace officer depends on a finding as to his primary
duties." (Ibid.) But "[a]t oral argument, [the People] contended for the first time that
employees of the harbor or port police should be considered peace officers as long as they
are 'regularly . . . paid in that capacity by a county, city or district' and 'performing necessary
duties with respect to patrons, employees and properties of the harbor or

4
 The verbatim text of the statute provides that peace officers include "[h]arbor or port
police regularly employed and paid in that capacity by a county, city, or district other than
peace officers authorized under Section 830.1, if the primary duty of the peace officer is the
enforcement of the law in or about the properties owned, operated, or administered by the
harbor or port or when performing necessary duties with respect to patrons, employees, and
properties of the harbor or port." (§ 830.33, subd. (b).)

                                                5
port.' " (Id., at p. 667, fn. 9, quoting from the second clause of section 830.33, subd. (b).)
The court rejected the People's contention. It reasoned: "Under this interpretation, the
[second] clause of Penal Code section 830.33, subdivision (b) would operate to create a
wholly separate category of harbor and port police employees who may be deemed peace
officers without regard to whether their primary duty is enforcement of the law. This
definition would bestow peace officer status on a broad category of employees who perform
no law enforcement functions, and cannot be reconciled with prior decisions' strict
interpretation of the provisions of Chapter 4.5 [of Title 3 of Part 2 of the Penal Code, which
includes section 830.33]. [Citation.]" (Ibid.)
          We disagree with Miller's interpretation of section 830.33, subdivision (b). "Our
goal in construing a statute is 'to determine and give effect to the intent of the enacting
legislative body.' [Citation.] ' "We first examine the words themselves because the
statutory language is generally the most reliable indicator of legislative intent. [Citation.]
The words of the statute should be given their ordinary and usual meaning and should be
construed in their statutory context." [Citation.] If the plain, commonsense meaning of a
statute's words is unambiguous, the plain meaning controls.' [Citation.]" (Holland v.
Assessment Appeals Bd. No. 1 (2014) 58 Cal.4th 482, 490.)
          Section 830.33, subdivision (b) is unambiguous. A harbor or port police officer
qualifies as a peace officer if the requirements of the first or second clause are met. The
first clause does not prevail over and supersede the second clause. Miller's interpretation
"violate[s] the principle of statutory construction that 'requires us, if possible, to give effect
and significance to every word and phrase of a statute. [Citation.]' [Citation.]" (People v.
Guzman (2005) 35 Cal.4th 577, 588.) "[I]t is well settled 'that in attempting to ascertain the
legislative intention effect should be given, whenever possible, to the statute as a whole and
to every word and clause thereof, leaving no part of the provision useless or deprived of
meaning.' [Citations.]" (California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d
1, 18.)
          We respectfully question the basis for the Miller court's concern that the second
clause "would bestow peace officer status on a broad category of employees who perform

                                                 6
no law enforcement functions." (Miller, supra, 164 Cal.App.4th at p. 667, fn. 9.) The
second clause applies only to "[h]arbor or port police regularly employed and paid in that
capacity," i.e., their official capacity as police officers. (§ 830.33, subd. (b), italics added.)
The People correctly observe that "the term 'police' necessarily connotes law enforcement
functions." Thus, a person would not fall within the category of "harbor or port police"
unless, like Officer Hubbard, the person performed law enforcement functions pursuant to
the second clause. This is a question for the trier of fact.
       Appellant does not contend that the evidence is insufficient to show that Officer
Hubbard was "performing necessary duties with respect to patrons, employees, and
properties of the employing agency." (§ 830.33, subd. (b).) Nor could he so contend.
Hubbard was in full uniform carrying peace officer accoutrement including a firearm, taser,
and baton. He was investigating a suspected trespass and theft.
                  Instruction that a Harbor Patrol Officer Is a Peace Officer
       The trial court instructed the jury that, to find appellant guilty of battery on a peace
officer, the People must prove that "Hubbard was a peace officer performing the duties of a
Harbor Patrol Officer." It further instructed that "[a] sworn member of the Santa Barbara
Harbor Patrol is a peace officer." (Italics in original.) Appellant argues, and the People
concede, that the latter instruction was erroneous. A Santa Barbara Harbor Patrol officer
qualifies as a peace officer only if the People prove the requirements of either the first or
second clause of section 830.33, subdivision (b). Moreover, "the constitutional right to a
jury trial means that 'no matter how conclusive the evidence, a trial court cannot directly
inform the jury that an element of the crime charged has been established. Absent a
stipulation by the defendant that an element is established or is admitted, the trial court must
submit that question to the jury.' [Citations.]" (People v. Yarbrough (2008) 169
Cal.App.4th 303, 315.)
       "The error here is harmless beyond a reasonable doubt because the jury necessarily
resolved [the peace officer] issue[] against appellant[] under other instructions. [Citation.]"
(People v. Samaniego (2009) 172 Cal.App.4th 1148, 1165.) For Hubbard to qualify as a
peace officer under the second clause of section 830.33, subdivision (b), the People were

                                                 7
required to prove that he had been "performing necessary duties with respect to patrons,
employees, and properties of the employing agency." (Ibid.) The jury instruction for
battery on a peace officer stated that, to find appellant guilty of this crime, the People must
prove that Hubbard was "performing the duties of a Harbor Patrol Officer" and that
appellant "knew, or reasonably should have known, that Rick Hubbard was a peace officer
who was performing his duties." Thus, by finding appellant guilty, the jury necessarily
found that Hubbard had been performing his official duties and was therefore a peace officer
within the meaning of the second clause of section 830.33, subdivision (b).
                    Limitation on Scope of Appellant's Closing Argument
       Appellant contends that the trial court erred by granting the People's motion to
preclude him from arguing to the jury that Hubbard was not a peace officer. The court
stated: "[Y]ou can't argue that . . . Officer Rick Hubbard and the other folks who work for
the Harbor Patrol are not peace officers within the meaning of the law, because under the
law they are designated peace officers, as I understand it." "So it's not something the jury
can decide, that they're not peace officers." For the reasons discussed in the preceding part
of this opinion, the trial court's ruling was erroneous.
       The error is harmless beyond a reasonable doubt. If appellant had been permitted to
argue that Hubbard was not a peace officer, his argument would have been limited to
whether the People had proved the requirements of the first or second clause of section
830.33, subdivision (b). The trial court permitted appellant to argue that he was not guilty
of battery on a peace officer because Hubbard was not "performing his lawful duty." Thus,
appellant was in effect allowed to argue that Hubbard was not a peace officer within the
meaning of the second clause because he was not "performing necessary duties with respect
to patrons, employees, and properties of the employing agency." (§ 830.33, subd. (b).) As
we have previously explained, the jury could not have convicted appellant unless it had
found that Hubbard had been performing his official duties within the meaning of the
second clause.




                                                8
                             Sufficiency of the Evidence/Trespass
       Appellant contends that the evidence is insufficient to support his conviction of
trespass in violation of section 602, subdivision (k). This statute prohibits "[e]ntering any
lands . . . for the purpose of injuring any property or property rights or with the intention of
interfering with, obstructing, or injuring any lawful business or occupation carried on by the
owner of the land, the owner's agent, or by the person in lawful possession." (Ibid.)
       The jury was instructed that, to find appellant guilty of trespass, the People must
prove that he entered lands belonging to another "for the purpose of injuring property
rights." Substantial evidence supports the jury's finding that appellant entered the Marina
with the requisite purpose. The jury could have reasonably found that appellant had acted
with the purpose of injuring the City of Santa Barbara's right to exclude unauthorized
persons, i.e., people who were not keycard holders and were not escorted by a keycard
holder. Appellant's presence on the property interfered with the owner's and tenants' right
to exclusive and undisturbed possession of the Marina. "As a general rule, landowners and
tenants have a right to exclude persons from trespassing on private property; the right to
exclude persons is a fundamental aspect of private property ownership. [Citation.]" (Allred
v. Harris (1993) 14 Cal.App.4th 1386, 1390; see also Loretto v. Teleprompter Manhattan
CATV Corp. (1982) 458 U.S. 419, 435 [102 S.Ct. 3164, 73 L.Ed.2d 868] ["The power to
exclude has traditionally been considered one of the most treasured strands in an owner's
bundle of property rights"].)
       Were we to credit appellant's theory, he could come and go to any portion of the
Marina as long as he did not interfere with, obstruct, or injure the Marina or any of the boat
slip tenants. This would be an unwarranted erosion of traditional real property rights.
                       Alleged Failure to Instruct on Relevant Defenses
       For the offense of attempted petty theft (§§ 664, 484, subd. (a)), appellant argues that
the trial court erroneously failed to instruct sua sponte on the defenses of claim of right and
mistake of fact. "The claim-of-right defense provides that a defendant's good faith belief,
even if mistakenly held, that he has a right or claim to property he takes from another
negates the felonious intent necessary for conviction of theft or robbery." (People v.

                                                9
Tufunga (1999) 21 Cal.4th 935, 938.) "The mistake-of-fact defense operates to negate the
requisite criminal intent or mens rea element of the crime, but applies only in limited
circumstances, specifically when the defendant holds a mistaken belief in a fact or set of
circumstances which, if existent or true, would render the defendant's otherwise criminal
conduct lawful. [Citations.]" (People v. Lawson (2013) 215 Cal.App.4th 108, 111.)
Appellant asserts: "There was substantial evidence that when [he] entered the Harbor and
removed the hose, he had a good faith belief that he had permission to do so. Specifically,
Carol Holm . . . gave appellant permission to enter the Harbor to perform work on her boat
and to utilize her hose for that purpose."
       If substantial evidence supported the defenses of claim of right and mistake of fact,
the trial court had no duty to instruct sua sponte on these defenses because their purpose was
to negate the mental element of attempted petty theft. In People v. Anderson (2011) 51
Cal.4th 989, 992, our Supreme Court held that "a trial court has no obligation to provide a
sua sponte instruction on accident where . . . the defendant's theory of accident is an attempt
to negate the intent element of the charged crime." "[A]s explained in Anderson, the trial
court's sua sponte instructional duties do not apply to defenses that serve only to negate the
mental state element of the charged offense when the jury is properly instructed on the
mental state element, even when substantial evidence supports the defense and it is
consistent with the defendant's theory of the case. [Citation.] In these circumstances, the
court's duty to instruct, 'extend[s] no further than to provide an appropriate pinpoint
instruction upon request by the defense.' [Citation.]" (People v. Lawson, supra, 215
Cal.App.4th at p. 119, quoting from People v. Anderson, supra, 51 Cal.4th at p. 998.)
"[T]he rationale of Anderson is applied with equal force to the defense of mistake of fact, or
any other defense [e.g., claim of right] that operates only to negate the mental state element
of the crime." (Id., at p. 117.)
                                   Out-on-Bail Enhancement
       The trial court found true an enhancement allegation that, when appellant committed
the felony offense of resisting an executive officer, he was out on bail for an earlier offense
in another case. (§ 12022.1, subd. (b).) After suspending the imposition of sentence and

                                              10
placing appellant on probation, the court dismissed the other case in furtherance of justice
pursuant to section 1385. Appellant claims that, because of this dismissal, "[t]he sentencing
enhancement should be permanently stayed." Appellant reasons that "a conviction for the
criminal charge on the primary [earlier] offense is an essential prerequisite to the imposition
of the 'on bail' enhancement." (In re Ramey (1999) 70 Cal.App.4th 508, 512.)
       We agree with the People that appellant's claim "is not ripe for appellate review"
because the trial court suspended the imposition of sentence and placed him on probation.
Thus, appellant will not be sentenced if he successfully completes probation. If appellant's
probation is revoked and the court imposes a sentence that includes a prison term for the
out-on-bail enhancement, appellant may seek appellate review of the sentence. "[I]t is well
settled that matters which are not ripe for adjudication should ordinarily be left to a future
forum." (People v. Ybarra (1988) 206 Cal.App.3d 546, 550.)
                                          Disposition
       The judgment is affirmed.
       CERTIFIED FOR PUBLICATION



                                                                        YEGAN, J.

We concur:



              GILBERT, P. J.



              PERREN, J.




                                               11
                                     Brian J. Hill, Judge

                            Superior Court County of Santa Barbara

                             ______________________________


             Mark R. Feeser, under appointment by the Court of Appeal, for Defendant and
Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Linda C. Johnson,
Supervising Deputy Attorney General, Theresa A. Patterson, Deputy Attorney General, for
Plaintiff and Respondent.




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