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People v. Pennington

California Court of Appeals, Second District, Sixth Division

September 22, 2014

THE PEOPLE, Plaintiff and Respondent,
v.
BRYAN M. PENNINGTON, Defendant and Appellant.

[REVIEW GRANTED BY CAL. SUPREME COURT]

Santa Barbara County Super. Ct. No. 1423213 Brian J. Hill, Judge.

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COUNSEL

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, Assistant Attorney General, Linda C. Johnson and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

YEGAN, J.

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 the condition that he serve 365 days in county jail.

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

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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 ...


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