IN RE M.M.

Respondent’s Opening Brief on the Merits

Cal.March 22, 2010

In the Supreme Court of the State of California In re MARTIN M., a Person Coming Under the Juvenile Court Law. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Case No. S177704 SUPREME COURT FILED MAR 2 2 2010 Vv. | Frederick K. Ohirich Clerk MARTIN M., a Minor, oe — DEPUTY~ Defendant and Appellant. Fourth Appellate District, Division Two, Case No. E045714 San Bernardino County Superior Court, Case No. J220179 The Honorable Michael A. Knish, Judge RESPONDENT?’S OPENING BRIEF ON THE MERITS EDMUNDG. BROWN JR. Attorney General of California DANER. GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General SCOTT C. TAYLOR Deputy Attorney General MARISSA BEJARANO Deputy Attorney General State Bar No. 234544 110 West A Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-2529 Fax: (619) 645-2271 E-mail: Marissa.Bejarano@doj.ca.gov Attorneysfor Plaintiffand Respondent Page Question Presented .........cesscessssessseeesesestsscsescseesesescsssetsesesueeeseeesdeeeeseeeensene 1. Statement of Facts and Case ........cccccscssssssssssssssscsssessesessseestssassessessesecesseeees 1 ATQUMENL 0...cscs essessesseessseetsesesesesesessesscecsssssusssvavessessvesasusarsusaeatissevasinseees 2 I. A school security officer employed pursuantto the Education Codeis a public officer within the meaning of Penal Codesection 148 becausehe is delegated a duty under law, the performance of which is an exercise of a government FUNCTION...le ccecesssscseesceseeeeees 2 A. ImtroductiOn........scccecscsssscescsessessscssessscessecereevacasseseses 2 B. The California Constitution’s safe schools provision; the school/law enforcement partnership; and the interagency school safety demonstration aCt........ccescsccssssssescscssssssestscsescsssecevees 4 C. The development of school security departments under the Education Code, school security officer training, and contract security ........... 5 D. Penal Code section 148.000... .ccccccccssssceseeesssteeseeseees 7 E. Principles of statutory construction .........ccescsesseseeeee 7 F, Legislative history of Penal Codesection 148........... 8 G. Thoseidentified as public officers under the Penal Code wo... eececssesseseseescscssssssecevsvssseserscsesesassess 11 H. Thelegislative history and the Penal Code support a broad application ofthe term “public OFFCEDeeeeececeeseseescescsescssessssstsessserssssetscatevacseees 11 I, A public officer is one whohasa duty delegated TABLE OF CONTENTS and intrusted to him under law, the performance of whichis an exercise ofa part of governmental fUNctions ...........cccccssscseeeseeeseeeeseeees 13 TABLE OF CONTENTS (continued) Page J. A schoolsecurity officer employed by a public schooldistrict under the Education Codeis a public officer for purposes of Penal Code section 148 becausehe is delegated and intrusted a duty under law, the performance of whichis an exercise of a part of governmental- FUNCTIONS 00... eeeeeeeceeeeteeeeeceeesseetseeeeseeceseesevensueeeeneanes 16 K. Classifying a school security officer as a public officer accords with sound public policy..........0.0.. 16 CONCLUSION...........seeaeseceseeceaesecaesessevecseeeeseaeenesevseaeeeesaseseseeseeeteeeeeeeseeees 19 -ii- TABLE OF AUTHORITIES Page CASES Clausing v. San Francisco Unified School Dist. (1990) 221 Cal-App.3d 1224 ooccccecescsssscesesssssssssestsssesesscsseetsseaes 4 Coulter v. Pool (1921) 187 Cal. 18] cccccesesscseseesssssssessessessesessecersassratseseeseres 14, 16 Curle v. Superior Court (2001) 24 Cal.4th 1057ce ccscsscccsescsssssesesssescsesseeverscessestsesesacavssees 8 Dibb y. County ofSan Diego (1994) 8 Cal.4th 1200... cccesesscsssssesscssssseecsessssesesssetersteecasseess 15 In re Bacon (1966) 240 Cal.App.2d 34 0... cccccccscsssssescscscsssscstscscsecerseststesscatscaseees 9 In re Eddie D. (1991) 235 Cal.App.3d 417 o..cccccccccseecsesesscscssssesessnsvsessesssesseaeas 12, 13 People v. Baker (1968) 69 Cal.2d 44ooccccceeesssesssesesessescssscsssucscevscenseessceesavaavavenes 8 People v. Canty (2004) 32 Cal.4th 1266.00... ccccccsessescscscssssssscscsssecesesceessssess Seceeeeeneees 8 People v. Jefferson (1999) 21 Cal4th 86.00. cccecsssscsesssssscscsscstccsesseseverestsvssatseessatessees 8 People v. Murphy (2001) 25 Cal.4th 136... ccccccecscsessescsssssecssssssssccesecseserssssscseavscscessee 8 People v. Olsen (1986) 186 Cal.App.3d 257 oo... cccccccsessssssssssssscsssseeceesecsesees 10, 13, 14 People v. Rosales (2005) 129 Cal.App.4th 81 oo... cccesscscscsessssescsssscseeevctenssarscsees 14, 15 ill TABLE OF AUTHORITIES (continued) Page STATUTES Education Code § 32260 ooo. eeceeeceseessecseeceeeeeeeacesecsscaneaessscsecseesecsessseesaeeeessneseseesssecseeags 4 § 32261, SUDA.(A) oo. eeeeeseessenessessessetseeseseecesesessesseesecseesseeesseeseeseseneans 4 § 32261, Subd. (D) oo.eee eeeessesceeceecsereeessesesesenseseeseessereeseesseneessaeeenees 5 § 32280....... sesessenacececesecaecasescecsesuecsueesseaecacecstseaeeateaesaeenerserseseseeensnsess 5 § 38000 ooo. cccccsscecseccsreseeseceseceeseesseseesseessessssecseesuseusauesesseseasaeeneeees 6, 16 § 38000, SUD. (8)oeeee esseeeeeteceeesseseesecesssesecsaeseeeseseeseeesseseaeens 6, 16 § B8001.S oe ceccccsescessessesesseseseesessessscsesesscessessesssssessacsreseseserssesenseenense 6 § 38001.5, SUD. (2) occeee csessecseteteereessscsseteeseessesseneensesesseeeeeees 6, 18 § 38001.5, subd.(b)........ veneesenecensessacsenecseeceneecenecseecaeeesattnesseeeoatseaeeesaes 7 § 38001.5, SUD. (C) .oeeeeceeececsectecnersseeesesecesesrcsssessseesestenesssneeneenaes 16 § 38005 ve ceccccccccessceseseetcesceseeeseessesaesessecsssserssesscseesecssensesseseeseensenesaeeaes 7 Penal Code SA i ccccccccccccsesecseeeectecaeeaeeaceseeeaeeeesessauseessesaessesscsessessecnecsessseascseseeeaneags 8 § 148 woeee cceeseeeecneeeeesseteeeeseeesasseeseceseserenseseeeeseseesseessaneeesrenaees passim § 148, SUD. (8) ....c ee eseseeseceeeeseeeeeneseeesseeesaesressessseneseeessseaeeseseaseeens 1,2 § 148, subd. (a)(1) oeee eeeeeeeceeesseessssnsseesnesessesesneeneseaceneeeeeetees 2,7, 11 § D5 coe eeceecccsesscnceeseeeeseeseeecersessesseeseessssecssesssssessesseseeeesesnesseesesenseneaes 15 § 594, subd. (b)(2)(A)....eee ceecescreeeseeseseessceterssseecseesesesessesseneesesaees 1 § 628, Ct SOQ... cececcsetcescessersessecsecssesnsascsecsessssssesressesssesseeesessnecssenssaeeas 5 § O28.1 eccccccecsccsseseeseenecsceseesecereseesseessescssessueseeseasassessesssesesseesessessasaeses 5 § 628.2 .occcccccscccscsceseeecsesectceneesecsesecseesceesseesessssseecsesessesaeeessnesecseseenesaeas 5 § 830, Ct. SOQ. ...ceececcseeseteereseessesstssscsucsescsasensesseeseeeseneenessseeeseessenees® 11 § 830.14, subd. (a)... eecseeseceeesessevessecseeseaesessassessevsessusesesesseeees 11, 13 § 830.14, subd. (fl)... ccc eeeseeseeeseseessesseeesseeseesessscsseeesresenseseeeses 11, 13 § 831.4, subd. (8) eeecece cece cserscesesseseeenseneensensesesensesseenseseeneeens 11 § 831.6, SUDA.(2) oe.eseeeceeeesereeeeeresesseeseesessessaesececsaensesasesseneenes 11 Welfare and Institutions Code § 602 oecccccccesesccscesceseceeseeseceeeeseeeeeaeeaeeesesesanesesscsesessssssseeesescaeensessenees 1 § 602, SUb. (2) oo. ee cece ceeesecsetsecsetscesessssseessessensesssesscssesessressaseneags 1 iv TABLE OF AUTHORITIES (continued) Page CONSTITUTIONAL PROVISIONS California Constitution art. I, § 28, subd. (£)(1) oe. ecceescescesssessesseescssecsessessessscsssssesssssateresaeees 4 OTHER AUTHORITIES Assem. Com. on Crim. Law and Pub,Saf., Rep. on Assem. Bill No. 158 (1983) woe eeeccescssceseeseeseesessecsessesessecsesecesscsscsssscenessssussucsevaeensesavens 9 Assem. Com. on Pub. Saf., Rep. on Assem.Bill No. 462, 3d reading (1987), vo eececcesesseesessesessetsceseesessceessecssessssseeeseececseceesssssuserssasssvecsaaraseaeensens 11 CALJIC NO. 16.100 ooo.eee eeesneceesercesecsseeseseessscseesescsseeessecsseesssssseeccsssenscenveas 9 Historical and Statutory Notes, West’s Ann. Pen. Code, Rules (2010 Cd.) foll. § 148cececeessesseesesessecsssscssecsecsessessecsessssecsssasensevecees 8 Sen. Rules Com., Off. of Sen. Floor Analyses, Sen. Bill No. 1626 (1997-1998 Reg. Sess.) as amended Jun. 18, 1998...eee 6 USS. Dept. of Educ. & U.S. DOJ, Indicators of School Crime and Safety 2009 (Dec. 2009)... eccccsssssssessesesecsevsessessecsssecrecscnsessecaees 17 Lockyer & Eastin, Safe Schools Task Force Final Report (June 2000) w.eeeecscscscccecseesceseetecsseesenessessssecsessessecseessesessessecsesessuserssesesueasaes 4 Legis. Counsel’s Dig., Assem.Bill No. 1785 (1999-2000 Reg. Sess.) ....5 Nieto, Security and Crime PreventionStrategies in California Public Schools (Oct. 1999) ooo eicccssesscsssscsssssesscsssssesecscssecsesesuseevsveesavanens 5 Assem.Floor Analyses, 3d reading analysis of Sen. Bill No. 1626 (1997-1998 Reg. Sess.) as amended Jun. 18, 1998 oo.6 O’Connell, California Department of Education, Letter Regarding the Governor’s Budget for 2010-2011 (Mar. 4, 2011) wu. 17 QUESTION PRESENTED “Is a campussecurity officer employed by a public schooldistrict a ‘public officer’ for purposesof a chargeof willfully resisting, delaying, or obstructing a “public officer’ in violation of Penal Code section 148?” STATEMENT OF FACTS AND CASE On January 30, 2008, the security department at Arroyo Valley High Schoolin San Bernardinoreceiveda call regarding vandalism on campus. (RT 20.) School Security Officer’ Bryan Butts respondedto the scene, and San Bernardino Unified School District Police Officer Alfredo Yanez drove his patrol car around the perimeter ofthe school. (RT 10, 36-37.) When Officer Butts arrived at the scene, a group of students scattered. (RT 10.) Theofficer followed one group of students which included the minor. (RT 10-11, 21.) Officer Butts, who knew the minor, yelled at the minor by name, to stop several times. (RT 25, 27, 34.) The minor continuedto run. (RT 27.) Eventually, the minor exited the campus and encountered Officer Yanez. The minor immediately submitted to Officer Yanez and was arrested. (RT 37.) On April 25, 2008, the San Bernardino’s District Attorney’s Office filed a petition pursuant to Welfare and Institutions Code section 602, subdivision (a), alleging that the minor hadresisted or delayed a public officer, a misdemeanor,in violation of Penal Code section 148, subdivision (a), and had committed misdemeanorvandalism,in violation of Penal Code section 594, subdivision (b)(2)(A). (CT 14-16.) ' The prosecution and Officer Butts, referred to Officer Butts as a “campussecurity officer” in the petition filed under Welfare and Institutions Code section 602 and atthe jurisdictional hearing. However, as set forth in the Education Code Officer Butt’s actualtitle is “school security officer.” As such, Officer Butts will be referred to as a schoolsecurity officer. During the jurisdictional hearing, Officer Butts explained that he was employed as a school security officer and that his duties included protecting people and school property. (RT 19-20.) In contrast, Officer Yanez testified he was a police officer employed by the San Bernardino City Unified School District. (RT 36.) On April 30, 2008, after a jurisdictional hearing, the juvenile court found that a school security officer was a public officer and found the allegation true, but found the vandalism allegation not true. The juvenile court declared the minor a ward of the court and placed him on probation in the custody of his mother. (CT 18-19.) The minor appealed, arguing that a school security officer was not a public officer, within the meaning of Penal Code section 148, subdivision (a). The Court of Appeal agreed. The Court of Appeal reasonedthat a school security officer was not a public officer for purposes of Penal Code section 148, subdivision (a)(1), because a school security officer (1) does not exercise a delegated sovereign function of government and (2) does not hold a tenured position. (Slip Opn.at p. 6.) On January 21, 2010, this Court granted Respondent’spetition for review. ARGUMENT I. ASCHOOL SECURITY OFFICER EMPLOYED PURSUANT TO THE EDUCATION CODEIS A PUBLIC OFFICER WITHIN THE MEANING OF PENAL CODE SECTION 148 BECAUSE HEIS DELEGATED A DUTY UNDER LAW, THE PERFORMANCE OF WHICH IS AN EXERCISE OF A GOVERNMENT FUNCTION A. Introduction There is no debate that public schools continue to face significant challenges related to school safety. Gangs, drugs, and weaponsall play a role in threatening the safety of school children, teachers, and staff. At the same time, property crimes suchas burglaries, thefts, and vandalism on public schools continue to cost taxpayers millionsof dollars. In fact, every year schooldistricts are faced with how to address these problems and others with an ever decreasing budget, in orderto provide a safe learning environmentfor students andteachers, uninhibited by crime. While some large schooldistricts are fortunate to have police departments, many school districts mustresort to more economical meansof ensuring safety on school campuses with the limited resources available to them. The Legislature provided schooldistricts with a crucial mechanism to increasethe safety of school children and teachers, while at the sametime protecting school property, when they authorized the employmentof schoolsecurity officers. The Court of Appeal’s decision in the instant matter, holding that school security officers employed by schooldistricts under the Education Code are notentitled to the authority and protection granted a public officer under Penal Codesection 148, must be reversed. The decision undermines the ability of these legislatively authorized schoolsecurity officers to ensure safety and protect property. Further, the court’s decision inhibits the already difficult task of schooldistricts to ensure the safety of students and teachers, while at the sametime protecting its property, using the most economical meansavailable to them. This Court should hold that a schoolsecurity officer employed under the Education Codeis a “public officer” for purposes of Penal Codesection 148 (willful resist, delay, or obstruction of a public officer). Although neither Penal Code section 148 nor the Penal Code generally defines “public officer,” the legislative history and the use ofthe term “public officer” in the Penal Code establish that the term was meantto be broadly defined. Broadly defined,a “public officer” is one whohasa duty delegated andintrusted to him under law, the performance of which is an exercise of a part of governmental functions. Underthis definition, because a school security officer is authorized under the Education Codeto insure the safety of students and staff and to protect the property on school grounds, a government function, a school security officer is a “public officer” for purposes of Penal Codesection 148. B. The California Constitution’s Safe Schools Provision; the School/Law Enforcement Partnership; and the Interagency School Safety Demonstration Act In 1982, the people enacted the Victims’ Bill of Rights. Included within the initiative was a safe schools provision whichstates: Right to Safe Schools. All students andstaff of public primary, elementary, junior high and senior high schools have the inalienable right to attend campuses whicharesafe, secure, and peaceful. _ (Cal. Const., art. I, § 28, subd. ((1).) Although,the right is inalienable and mandatory,the provision did not set forth how the right was to be achieved. Instead, that was “left to the Legislature.” (See Clausing v. San Francisco Unified School Dist. (1990) 221 Cal.App.3d 1224, 1237.) The following year, the State Superintendent of Public Instruction and the Attorney General formed a School/Law Enforcement partnership. (See Lockyer & Eastin, Safe Schools Task Force Final Report (June 2000)at p. 3 (Lockyer).) The concept behind the partnership was to combinethe efforts of education and law enforcement specialists to ensure safe, orderly school campuses and communities. (Lockyer, at p. 3.) | In 1985, the Legislature codified the partnership with the passage of the Interagency School Safety Demonstration Act (the Act). (Ed. Code, § 32260 et al.) In passing the Act, the Legislature first recognized “the inalienable right to attend classes on school campusesthatare safe, secure, and peaceful” and at the same time, recognized “that school crime, vandalism, truancy, and excessive absenteeism are significant problems on far too many campusesin thestate.” (Ed. Code, § 32261, subd. (a).) Asa result, the Legislature established an interagency coordination system to assist in resolving those problems. (Ed. Code, § 32261, subd. (b).) In addition, the Act requiredall schools to develop a comprehensive school safety plan. (Ed. Code, § 32280.) Since the inception ofthe partnership,it has “provided information,training and technical assistance to schools throughoutthe state on school safety issues” and provided public schools with funding to emphasize“safe school planning, conflict resolution, school community policing partnerships and gang violence reduction.” (Lockyer,at pp. 3-4.) Thereafter, in 1995, in an effort to have sufficient data and information on the type and frequencyofcrime, in order to develop and implementschoolsafety strategies and programs, the Legislature enacted Penal Code section 628, et seq. (See Pen. Code, § 628 et seq., repealed by Stats. 2005, ch. 677, § 49; Legis. Counsel’s Dig., Assem. Bill No. 1785 (1999-2000 Reg. Sess.), as introduced.) Under Penal Codesection 628.1, the Department of Education developed a standard schoolreporting system and under Penal Code section 628.2, all public schools were required to report crimes that occurred on school campuses. (Pen. Code, §§ 628.1 & 628.2.) C. The Developmentof Scheol Security Departments Under the Education Code, School Security Officer Training, and Contract Security During the 1990s, despite the developmentof the school/law enforcementpartnership and developmentof schoolsafety plans, it was evidentthat public schools continuedto be victimized by crimesagainst personsand property. (See Nieto, Security and Crime Prevention Strategies in California Public Schools (Oct. 1999), .) In 1996, the Legislature enacted Education Code section 38000, which gave the governing board of any schooldistrict the authority to establish a security department. (Ed. Code, § 38000, subd. (a).) The Legislative intent behind the statute was to supplement the law enforcement agencies by employing personnel“to ensure the safety of school district personal and pupils and the security of the real and personal property ofthe schooldistrict.” (Ed. Code, § 38000, subd.(a).) Under Education Code section 38001.5, school security officers are definedas: | [A]ny person primarily employedor assigned. . . to provide security services as a watchperson, security guard, or patrolperson on or about premises ownedor operated by a school district to protect persons or property or to prevent the theft or unlawful taking of district property of any kind orto report any unlawful activity to the district and local law enforcement agencies. (Ed. Code, § 38001.5.) After the passage of Education Code section 38000, the Legislature recognized that “great variations” existed with regard to the professional standards of those employed as schoolsecurity officers. (See Sen. Rules Com., Off. of Sen. Floor Analyses, Sen. Bill No. 1626 (1997-1998 Reg. Sess.) as amended Jun. 18, 1998.) It also noted that there were “no state minimum training standards for school security officers” and that “[t]he competency of those responsible for maintaining schoolsafety is unquestionably a significant factor in safety.” (/bid.; see also Assem. Floor Analyses, 3d reading analysis of Sen. Bill No. 1626 (1997-1998 Reg. Sess.) as amended Jun. 18, 1998.) As such, inorder to ensure the safety of persons on or near California public schools, the Legislature implemented mandatory training to assist school security officers in dealing with “the increasingly diverse and dangeroussituations” they faced. (Ed. Code, § 38001.5, subd. (a).) As a consequence,after July 1, 2000,all school security officers employed by a schooldistrict and who worked more than 20 hours a week were required to complete a training course conducted by the Bureau of Security and Investigative Services of the Department of Consumer Affairs. (Ed. Code, § 38001.5, subd. (b).) School security officers employed under the Education Code are not privately contracted security officers. And, in fact, privately contracted security officers may not becontracted by a schooldistrict to provide supplemental security unless an emergency exists which prevents the personnel who normally do such work from being available. (Ed. Code, § 38005.) The types of emergencies described in section 38005 include a war, epidemic,fire, flood, or work stoppage. (Ed. Code, § 38005.) D. Penal CodeSection 148 The issue before this Court is whether a school security officer employed within a security department ofa schooldistrict pursuant to the Education Code, is a “public officer” for purposes of Penal Codesection 148. Penal Code section 148, subdivision (a)(1) provides: Every person whowillfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical 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 heroffice or employment, when no other punishmentis prescribed,shall be punished by fine not exceeding one thousand dollars ($1,000), or by imprisonmentin a countyjail not to exceed one year, or by both that fine and imprisonment. (Pen. Code, § 148, subd. (a)(1).) “Public officer” is not defined in Penal Code section 148,noris it defined elsewhere in the Penal Code. E. Principles of Statutory Construction The principles governing statutory interpretation are well established. Asthis Court has observed,its “‘role on in construinga statute is to ascertain the Legislature’s intent so as to effectuate the purpose of the law.’” (People v. Canty (2004) 32 Cal.4th 1266, 1276, quoting Curle v. Superior Court (2001) 24 Cal.4th 1057.) In approaching this task, the court will “first go to the words ofthe statute, giving the language its usual, ordinary meaning.If there is no ambiguity in the language, we presume the Legislature meant whatit said, and the plain meaningofthe statute governs.” (Curle v. Superior Court, supra, 24 Cal.4th at p. 1063.) To the extent ambiguity exists, a reviewing court examinesthe context of the language, keeping in mindthe nature and obvious purposeofthe statute, adopting the construction that best harmonizesthe statute internally and with related statutes. (See People v. Murphy (2001) 25 Cal.4th 136, 142; Peoplev. Jefferson (1999) 21 Cal.4th 86, 94.) Further, the Penal Code expressly states that “[t]he rule of the common law, that penal codestatutes are to be strictly construed, has no application to this Code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and promote justice.” (Pen. Code, § 4.) At the sametime,it is well settled that courts may notcreate an offense by enlarging a statue, or by adding or deleting words, or giving false meaning to words. (People v. Baker (1968) 69 Cal.2d 44, 50.) | F. Legislative History of Penal Code Section 148 Penal Code section 148 derived from section 92 of California’s Crimes and PunishmentAct. (See Historical and Statutory Notes, West’s Ann. Pen. Code, Rules (2010 ed.) foll. § 148.) As initially enacted in 1850, section 92 madeit a crime for any personto: [K]nowingly and willfully obstruct, resist, or oppose any Sheriff, Deputy Sheriff, Coroner, Constable, Marshall, 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 otherlegal process whatsoever... (Stats. 1850, ch. 99, § 92, p. 240.) Thereafter, in 1872, whenthefirst edition of the Penal Code was published, section 92 was renumberedto section 148. As enacted, section 148 deleted the list of the specific individuals protected by the statute and more broadly criminalized “[e]very person whowillfully resists, delays, or obstructs any public officer, in the discharge or attemptto discharge of any duty ofhis office ....” (See Pen. Code, § 148, as enacted, emphasis added.) Over a centurylater, in 1983, a California attorney, Winston Parkman, proposed amendingsection 148 to add “peaceofficer” to the statute to makeit a crimetoresist either a public officer or a peace officer. (Assem. Com. on Crim. Law and Pub.Saf., Rep. on Assem.Bill No. 158 (1983).) The attorney arguedthat the amendment was necessary because courts were mistakenly concludingthat police officers were public officers. As an example, he cited In re Bacon (1966) 240 Cal.App.2d 34, where the Court of Appeal concluded University of California police officers were public officers. (/d. at p. 54.) The attorney arguedthat a police officer was not a public officer because, as set forth in a Connecticut Supreme Court case, public officers were defined as having 1) authority conferred by law,2) fixed tenure of office, and 3) power to exercise some portion of sovereign functions of government. He concludeda policeofficer did notfit that definition. In response, an assemblymemberproposed the amendmentto “codify judicial decisions” interpreting the term publicofficers to include peace officers. (See Assem. Com. on Crim. Law and Pub.Saf., Rep. on Assem. Bill No. 158 (1983).) Interestingly,in the staff notes section ofthe report, the author indicated that the use note to CALJIC No. 16.100 indicated that the term public officer included those designated as peace officers in the Penal Code and asa result, the amendmenthadno substantive effect on the law. At the sametime, the report indicated thatall peace officers were not necessarily public officers. In the end, section 148 was amended to make the willful resistance, delay, or obstruction against any public officer or peace officer a crime. (See Pen. Code, § 148, as amendedby Stats. 1983, ch. 73, § 1, emphasis added.) Three years later, in 1986, the Second District Court of Appeal, in People v. Olsen (1986) 186 Cal.App.3d 257, resolved the issue of whether a paramedic employed bya private company wasa “public officer” for purposes of Penal Code section 148. (/d. at p. 265.) In that case, the court concludedthat the paramedic wasnota “public officer.” In reaching its decision the court recognized that the Penal Code did not define “public officer.” The court then cited language from California Jurisprudence Third, suggesting that the reason “public officer” had not been defined was because the phrase was used so broadly it was incapable of being defined. (Ibid.) The court then relied on the definition of a “public officer” as one who occupied an office created by law, was clothed with someportion of the sovereign functions, and who had someduty to perform. (/d. at p. 266) In so defining a “public officer,” the court distinguished a private officer as one whoholdshis position by contract and whose duties are performed at the instant and for the benefit of the individual or corporation employing him. (d. at p. 266, fn. 5.) The court concluded that because the paramedic had been hired by a private companythe record did not support a finding that he was a “public officer.” (/d. at p. 266.) The following year, the Tuolumne County Sheriff's Department proposed amendingthe statute to encompass “emergency medical technicians” because emergency medical technicians and mobile intensive care paramedics were not included within those who should not be — 10 interfered with in the performanceof their duties. (See Assem. Com. on Pub. Saf., Rep. on Assem. Bill No. 462, 3d reading (1987).) As result, the Legislature enacted an amendmentto Penal Codesection 148 to include among those protected underthe statute “emergency medical technician, as defined in Division 2.5 (commencing with section 1797) of the Health and Safety Code.” (See Pen. Code, § 148, as amendedbyStats. 1987, ch. 257, § 1.) Thus, currently the statue provides protection for any “publicofficer, peace officer, or an emergency medical technician.” (Pen. Code, § 148, subd.(a)(1).) | G. Those Identified as Public Officers Under the Penal Code Asset forth above, the Penal Code does not define “public officer.” Notwithstanding, it expressly defines whoare peaceofficers and sets forth other individuals whoare public officers, primarily for the purpose of establishing whohasauthority to arrest. (See Pen. Code, § 830,et. seq.) Includedtn the group ofthose designated as “public officers” and not “peaceofficers” are persons hired as conductors to perform fare inspection duties by a railroad corporation that operates public commutertransit services, pursuant to Penal Code section830.14, subdivision (a). (Pen. Code, § 830.14, subd. (f).) In addition,transportation officers “appointed on a contract basis by a peaceofficer to transport a prisoneror prisoners,” are “public officers.” (Pen. Code, § 831.6, subd. (a).) Finally, Penal Code section 831.4, subdivision (a) providesthat: A sheriff's or police security officer is a public officer, employed by the Sheriff of a county or police chiefofa city, whoseprimary dutyis the security of locationsor facilities as directed bythe sheriff or policechief. . (Pen. Code, § 831.4, subd. (a).) 11 H. The Legislative History and the Penal Code Support a Broad Application of the Term “Public Officer” The legislative history and those who have beenclassified in the Penal Code as “public officers” evidences that the term “public officer” was meantto have broad application. The crimeofresisting, as first enacted in section 92 of the Crimes and Punishment Act, protected all persons who were cloaked with some authority to carry out any lawful or legal process. Although the Legislature specifically identified some of those individuals, namely, the Sheriff, Deputy Sheriff, Coroner, Constable, Marshall, and Policeman,it also set forth a catchall provision to protect any officer of the state or any other person duly authorized to serve any lawful or legal process. Thus, the language used by the Legislature demonstratesits intent that all persons who were authorized to serve any legal processor arrest others be protected. Thereafter, when the Penal Code wasenacted in 1872, the Legislature deleted the specific references to those protected underthe statute, and more broadly madeit a crimetoresist, delay, or obstruct any public officer, “in the discharge or attempt to discharge any duty ofhis office.” This Court should find that the Legislature’s deletion of specific persons and the use of the term “public officer” signaled the Legislature’s continued intent to give the statute it broadest application. In addition, this Court should find that the later amendments to the statute to expressly protect “peace officers” and “emergency medical technicians” were meantto clarify the scope of the statute. And, the fact that the amendments were passed does not mean that peace officers and emergency medical technicians were not public officers. In fact, at least one court has notedthat “all peace officers are public officers.” (See In re 12 Eddie D. (1991) 235 Cal.App.3d 417, 422.) While also recognizing, that “all public officers are not peace officers.” (/bid.) Further, the Legislature’s intent that the term “public officer” be given its broadest application is supported by a review of those who have been classified in the Penal Codeas public officers. As indicated in subsection D,ante, the Penal Code hasclassified fare collectors for public transit systems, prisoner transportation officers, and sheriff and police security guards,all to be public officers. (See Pen. Code, §§ 830.14, subds. (a) & (f); 831.6, subd. (a); & 831.4, subd. (a).) Thus, the Penal Code generally supports the argumentthat the term “public officer” was meant to have broad application. I. A Public Officer is One Who Has a Duty Delegated and Intrusted to Him Under Law,the Performanceof Whichis an Exercise of a Part of Governmental Functions Althoughthe legislative history of section 148 and the Penal Code itself, support a broad application of the term “public officer,”the issue remains whethera schoolsecurity officeris a “public officer” for purposes of Penal Code section 148. As will be set forth below, a school security officer should be classified as a “public officer” because hehasa duty delegated to him underlaw, the performanceof whichis an exercise of a part of governmental functions. The issue of how to define a public officer under the Penal Code has been presentedto at least one appellate court. In People v. Olsen, the SecondDistrict Court of Appealrelied on the definition ofa public officer set forth in California Jurisprudence Third. That definition provides: Oneofthe primary requisites [of a public office] is that [it] be created by the constitution or authorized by some statute. Andit is essential that the incumbent be clothed with someportion ofthe sovereign functions of government, either legislative, executive, or judicial to be exercised in the 13 interest of the public. There mustalso be a duty orservice to be performed,andit is the nature of this duty, notits extent, that brings into existence a public office and a public officer. (People v. Olsen, supra, 186 Cal.App.3d at pp. 265-266.) The above definition was derived from this Court’s decision in Coulter v. Pool (1921) 187 Cal. 181. In Coulter, this Court found: The words “public office” are used in so many senses that it is hardly possible to undertake a precise definition of the meaning and purpose ofthe phrase which will adequately and effectively cover every situation. It is far less difficult to conceive and comprehend the requirements which characterize a public office than it is to formulate a definition thereof which will have universal application and beentirely free from fault. Its definition and application depend, not upon whatthe particular office in question maybecalled, nor upon whata statute maycall it, but upon the powergranted and wielded, the duties and functions performed, and other circumstances which manifest the true character of the position and make and markit a public office, irrespective of its formal designation. (/d. at p. 186.) This Court then recognized that a public office was “ordinarily and generally defined to be the right, authority, and duty created and conferred by law, the tenure of whichis not transient, occasional, or incidental, by which for a given period an individual is vested with power to perform a public function.” (/d. at pp. 186-187.) Notwithstanding,this Court acknowledged that the most general characteristic of a public officer “is that a duty is delegated and intrusted to him,as agent, the performance of whichis an exercise of a part of the governmental functions of the particular political unit for which he, as agent, is acting.” (/d. at p. 187.) This Court also noted that there were other incidents of public office such as a fixed tenure of position, an oath of office, and a public bond. (/bid.) Decadeslater, in 2005, the Second District Court of Appeal addressed the issue of how to define a “public officer” in People v. Rosales (2005) 14 129 Cal.App.4th 81. In that case, the defendant wasthe superintendentof a county park, who was convicted of negligent handling of public moneys by an “officer.” (People v. Rosales, supra, 129 Cal.App.4th 81.) The issue presented on appeal was whetherthe defendant was an “officer” for purposes of Penal Code section 425”. The Attorney General argued that “a government employee such as defendantis a public officer.” (/d. at p. 85.) The Court of Appeal disagreed. In reachingits opinion, the court resorted to a definition ofthe term set forth in a civil case, Dibb v. County ofSan Diego (1994) 8 Cal.4th 1200. (People v. Rosales, supra, 129 Cal.App.4th at p. 86.) In Dibb, the issue before the court was whether membersofa citizens review board were public officers. (Dibb v. County ofSan Diego, supra, 8 Cal.4th at p. 1211. In holding citizen review board membersare public officers the court held: “[T]wo elements now seem to be almost universally regarded as essential”to a determination of whether oneis a “public officer”: “First, a tenure of office whichis not transient, occasionalor incidental,” but is of such a nature thatthe office itself is an entity in which incumbents succeed one another.. . and, second,the delegation to the officer of someportion of the sovereign functions of government,either legislative, executive, or judicial.” (Id. at p. 1212) This Court shouldfind that the term “public officer”as construedin People v. Rosales, is too narrow as applied to Penal Code section 148. A comprehensive review ofthe legislative history of Penal Code section 148, coupled with a review ofthe use of the term “public officer” in the Penal * Every officer charged with the receipt, safe keeping, or disbursementofpublic moneys, who neglects orfails to keep and pay over the samein the mannerprescribed by law,is guilty of a felony. (Pen. Code, § 425.) 15 Code,reveals the Legislature intended the use of the term “public officer” to apply broadly. As such, this Court should find that for purposes of Penal Codesection 148 a “public officer” is any person delegated a duty under law, the performance of which is an exercise of a part of governmental functions as set forth by this Court in Coulter v. Pool. At the sametime, this Court should find for purposes of Penal Code section 148, a person mayserve as a “public officer” without tenure, oath, or a bond. J. A School Security Officer Employed by a Public School District Under the Education Codeis a Public Officer for Purposes of Penal Code Section 148 Because Heis Delegated and Intrusted a Duty Under Law,the Performance of Whichis an Exercise of a Part of Governmental Functions Because a school security officer employed by a public schooldistrict underthe law is delegated sovereign duties, this Court must find he is a public officer for purposes of Penal Code section 148. The position of a schoolsecurity officer is authorized by Education Code section 38000, which authorizes schooldistricts to establish security departments. (Ed. Code, § 38000, subd. (a).) Second,those filling the positions of school security officers are cloaked with the duties of protecting persons and property and reporting unlawful activity to the schooldistrict and law enforcement agencies. (Ed. Code, § 38001.5, subd. (c).) As aresult, school security officers occupy positions authorized by law and the nature oftheir duties require them to perform a sovereign function of government,thus, they are “public officers.” K. Classifying a School Security Officer as a Public Officer Accords with Sound Public Policy In criminalizing resistance against “public officers,” it is evident the Legislature recognized not only the importanceofprotecting those tasked with serving legal processes and arresting others but also in keeping the 16 peace, protecting the public and public property. As such, when Penal Codesection 148 was amended and incorporated in the Penal Code,rather than specifically designating specific individuals protected underthe statute, the Legislature protected all “public officers.” This Court should find thatthe Legislature’s use of the term “public officers” was meant to be all encompassing and to apply to those who are authorized by law and cloaked with performing any governmentfunction under law. Such an interpretation is sound andfurthers the purposeofthe statute which is _ generally to promote the public safety. This public policy is particularly compelling in our public schools which continue to face budget cuts and, at the same time, continue to see a rise in criminal offenses on school campuses. (See O’Connell, California Department of Education, Letter Regarding the Governor’s Budgetfor 2010-2011 (Mar. 4, 2011) ; San Bernardino City Unified School District, Crime Statistics ) In fact, during the 2007- 2008 school year, the San Bernardino City Unified School District | experienced an increase in robberies (86), batteries on school property (24), and fights (795). (San Bernardino City Unified School District, Crime Statistics ) And, nationally, during the 2007—2008 school year, among students ages 12-18, there were about 1.5 million victims of nonfatal crimes at school, including 826,800 thefts and 684,100 violent crimes (simple assault and serious violent crime). (See U.S. Dept. of Educ. & U.S. DOJ, Indicators of School Crime and Safety 2009 (Dec. 2009), available at . http://www.campussafetymagazine.com/News/?NewsID=3628.) The instant case is a perfect example of the type of situations which arise every day on public schools. Here, both the school security officer 17 and the schoolpolice officer responded to a report of vandalism. The schoolsecurity officer responded on bicycle and the schoolpolice officer in his patrol car. The school security officer arrived on the scenefirst, a group of students scattered, he recognized the minor, and ordered him to stop. The minor ignored the school security officer and was later apprehended by the school police officer as he exited the campus. The school security officer and school police officer worked together. Based on the lack of resources available to public schools, there will be an ever growing need to supplementschoolandlocal police departments with schoolsecurity officers to ensure the safety of persons and property on public schools. With that purpose in mind, legally enforceable obedience to the directions of school security guards and protection of those officers from resistance is required for the officers to perform their duties, just as it would be for any public officer. It serves as both a swordto affect their entrusted authority to protect students and schoolstaff and school property and as a shield to deter resistance to their just exercise of their authority. In this regard, there is no meaningful distinction between security officers and peaceofficers. Consequently, students and any other person on a school © campus should be required to give greater deference or obedience to a schoolsecurity officer than others, such as a janitor. If not, school security officers will be inhibited in performing their duties of protecting both persons and property from the “increasingly diverse and dangerous situations.” (Ed. Code, § 38001.5, subd.(a).) 18 CONCLUSION For the foregoing reasons, respondent respectfully requests that this Court reverse the judgment of the Court of Appeal and find that a school security officer employed by a public schooldistrict under the Education Codeto protect the property and persons of the schoolis a “public officer” for purposes of Penal Code section 148. Dated: March 19, 2010 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of California DANER. GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General SCOTT C. TAYLOR Deputy Attorney General pi.Po Deputy Attorney General Attorneysfor Plaintiffand Respondent SD2008801282 70262893 .doc 19 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S OPENING BRIEF ON THE MERITSusesa 13 point Times New Roman font and contains 5,579 words. Dated: March 19, 2010 EDMUND G. BROWN JR. Attorney General of California Lyfotyt SA BEJARAN Deputy Attorney General Attorneysfor Plaintiffand Respondent DECLARATION OF SERVICE BY U.S. MAIL & ELECTRONIC SERVICE Case Name: ThePeople of the State of California v. Martin M., a Minor Case No.: S177704 I declare: I am employedin the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at theOffice of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplacedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same dayin the ordinary course of business. On March 19, 2010, I served the attached by placing a true copy there RESPONDENT’S OPENING BRIEF ON THE MERITSofenclosed in a sealed envelope with postage thereon fully prepaid, in-the internal mail collection system at the Office of the Attorney General at 110 West A Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows: Lauren E. Eskenazi Court of Appeal of the State of California Attorney at Law Fourth Appellate District 11693 San Vicente Boulevard Division Two Suite # 510 3389 Twelfth Street Los Angeles, CA 90049 Riverside, CA 92501 Counselfor Appellant, 2 copies The Honorable Michael A. Ramos Tressa S. Kentner, Court Executive Officer District Attorney San Bernardino County Superior Court San Bernardino County District Attorney's Appeals & Appellate District Office Deliver to the Hon. Michael A. Knish, Judge 316 North Mountain View Avenue 401 North Arrowhead Avenue San Bernardino, CA 92415-0004 San Bernardino, CA 92415-0063 and I furthermore declare, I electronically served a copy of the above document from Office of the Attorney General's electronic notification address ADJEService@doj.ca.gov on March 19, 2010 to Appellate Defenders,Inc.'s electronic notification address eservice-criminal@adi- sandiego.com. I declare under penalty of perjury under the laws of the State of California the foregoingis true and correctandthat this declaration was executed on March 19, 2010, at San Diego, California. C. Pasquali dFespuale Declarant Sighdture SD2008801282 70253337.doc