COUNTY OF SANTA CLARA v. Santa Clara County Correctional Peace Officers' Association, et al., Intervenors and Respondents. (1991)

The Deputy Sheriffs' Association of Santa Clara County, Inc. (hereafter, DSA) appeals from a judgment of the Santa Clara County Superior Court declaring that the County of Santa Clara (hereafter, the County) may grant “limited peace officer status” to the custodial officers employed by the County Department of Corrections.   We affirm the judgment.

FACTS

In an election on June 6, 1988, the voters ratified an amendment to the Santa Clara County Charter (hereafter, Charter) which transferred control of the county jails from the sheriff to a county department of correction (hereafter, Department) which the board of supervisors created pursuant to Government Code section 23013.¹

The new department had two classes of personnel involved in guarding and transporting inmates:  peace officers with the titles of “correction deputies (or sergeants or lieutenants),” and non-peace officer “correctional officers.” ²

The first category, correction deputies, sergeants, and lieutenants (hereafter, correction deputies) are deputy sheriffs who staffed the jails when they were operated by the sheriff, but who were reassigned to the Department when it opened.   Correction deputies are peace officers pursuant to Penal Code section 830.1 because they were deputized by the sheriff.  Section 830.1 defines the authority of deputy sheriffs and certain other peace officers, and authorizes them to carry firearms.   Because of this, correction deputies perform all the functions for which armed officers are needed, and because they are peace officers, they supervise the correctional officers.

Correction deputies have dual status:  although they are employees of the Department, they remain deputies of the sheriff with the full powers and duties of peace officers.  (County Code, § A20–42.1.)   They retain the title “deputy sheriff” and have a contractual right to transfer back to the sheriff's department as vacancies arise.

Early in the existence of the Department, the California Commission on Police Officer Standards and Training (hereafter, POST) challenged the right of correction deputies to continue to operate as peace officers.   That right was upheld in Deputy Sheriffs' Association of Santa Clara County, Inc. v. California State Commission on Peace Officers' Standards and Training (Santa Clara Superior Court No. 686871).   The court declared that Government Code section 23013 empowered the County of Santa Clara to employ peace officers to perform functions which the county sheriff had performed when the sheriff operated the facilities.³

By June 1990, large numbers of correction deputies had transferred back to the sheriff's department.   When the number of correction deputies (and therefore, peace officers) fell below the level required by state law, the director of the department, Frank Hall (hereafter, Hall), proposed to confer limited peace officer status on some correctional officers.

Such status would enable them to carry weapons in the performance of certain duties:  that is, when transporting and supervising inmates outside of correctional facilities;  when carrying out facility entry and perimeter and internal security duty;  when investigating crimes and pursuing escapees;  when responding to emergencies declared by the director or his designee;  when operating emergency vehicles to carry out the functions described above;  when temporarily substituting for correction deputies on vacation, sick leave, or on other relief time;  and when making detentions or arrests within the facilities upon probable cause.

Hall's proposal to confer limited peace officer status provided the impetus for the present action.   The DSA, the employee organization representing deputy sheriffs including correction deputies, objected to the proposal, claiming that correctional officers are custodial officers as defined by Penal Code section 831.⁴  That section declares them to be “public officers, not peace officers,” and expressly prohibits them from carrying firearms in the performance of their duties.

Additionally, the DSA contended that neither the County nor the director of the Department had the authority to confer limited peace officer status upon anyone.

On July 23, 1990, the County and Hall filed an action for declaratory relief, naming the DSA as defendant.   The DSA and Jerry Hall (county resident, taxpayer, and president of the DSA) filed a cross-complaint requesting declaratory and injunctive relief.   The Santa Clara County Correctional Peace Officers' Association, the bargaining unit representing correctional officers, and William Allison Seigling and Alyce Lilley (personally affected correctional officers), sought and received leave to intervene.

All parties agreed that the matter should be heard by Judge James Ware, who had decided the previous suit.

Judge Ware rendered judgment in favor of plaintiffs.   He concluded that although the Legislature had preempted the field regarding peace officer status, training, and power to carry firearms or to make arrests, nevertheless, a county which had acted under Government Code section 23013 to divest the sheriff of his law enforcement responsibilities with respect to a county jail, must, of necessity, have the power to bestow some limited peace officer status on its department of correction employees.

He found that correctional officers were custodial officers as defined by Penal Code section 831, but he also found that there was no legal restriction against filling peace officer jobs with individuals also employed as correctional officers, so long as each individual was trained in accordance with POST requirements for use of a firearm, and peace officer duties were restricted to operation of a correctional facility.

Subsequently, as allowed by the judgment, Hall conferred limited peace officer status on certain correctional officers.   The DSA's ex parte application for a stay of judgment was denied.   On October 25, 1990, this court denied DSA's petition for writs of mandate, supersedeas, or other appropriate relief (no. H007629).   This appeal ensued.

ISSUES ON APPEAL

In its brief, the DSA states:  “Appellants believe this is a relatively simple case presenting issues of statutory construction and interpretation and nothing more.   The issues are as follows:

“(1) Has the Legislature, by Penal Code sections 830, et seq., preempted the field of granting, conferring, and limiting ‘peace officer’ status on the employees of local agencies?

“(2) If the Legislature has so preempted the field, does the action of Respondents in attempting to bestow ‘limited peace officer status' on its correctional officers, and arming those correctional officers, duplicate, contradict, or otherwise intrude into an area fully occupied by the Legislature?

“(3) If the Legislature has not preempted this field, is this nevertheless an area which is not a ‘municipal affair;’  and, if so, does the action of the Respondents intrude upon, and into, an area in which general law controls?

“(4) Even if the answers to any of the issues posed above is [sic ] ‘Yes,’ does the County, nevertheless, possess some inherent or implied power (under Government Code section 23013, its Charter or some other rule of necessity) allowing it to grant such ‘limited peace officer status' to its correctional officers and to arm those correctional officers, notwithstanding the explicit prohibitions of the Penal Code to the contrary?

“Appellants believe that the clear answers to Issues (1), (2), and (3) are ‘Yes,’ and that the answer to Issue (4) is ‘No.’ ”

SCOPE OF REVIEW

The parties stipulated and the trial court found that the relevant facts were undisputed.  “Where the facts are not in conflict and the issue involves the proper application of a statute or administrative regulation, a reviewing court is not bound by the trial court's determination.  [Citations.]   In the case under review, the cause was submitted on stipulated facts and supplemental documentary and testamentary evidence.   There was no substantial conflict in the supplemental evidence bearing upon the interpretation of the ․ regulation.   We are, therefore, not bound by the trial court's finding, but must make our own determination․”  (Shoban v. Board of Trustees (1969) 276 Cal.App.2d 534, 541, 81 Cal.Rptr. 112.)

PREEMPTION

Appellant claims that “even a charter county possessing ‘home rule’ powers could not intrude upon, or legislate contrarily to, the Legislature's pronouncements.”   According to appellant, by adding chapter 4.5, “Peace Officers,” section 830 et seq., to the Penal Code, the Legislature preempted the field.⁵  Appellant asserts that Chapter 4.5 dealt “explicitly, thoroughly, completely and exhaustively with the subject of who are and who are not (and to what extent) ‘peace officers' in this State.”

Appellant advises that “[a] thorough understanding of the legislative history behind Penal Code sections 830, 831, and 831.5 is essential to resolution of this appeal.”   Appellant further notes that “notwithstanding efforts in the last ten years by various cities and counties to grant (full or ‘limited’) peace officer status to its [sic ] detention personnel without incurring the costs and expense of making those employees ‘regular’ peace officers under Penal Code section 830.1[,] the Legislature has consistently declined to take this step.”

 Under the doctrine of preemption, local legislation in conflict with general law is void.   Conflicts exist if an ordinance duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication.  (Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal.3d 408, 423, 261 Cal.Rptr. 384, 777 P.2d 157, quoting People ex rel. Deukmejian v. County of Mendocino (1984) 36 Cal.3d 476, 484, 204 Cal.Rptr. 897, 683 P.2d 1150.)

“ ‘In determining whether the Legislature has preempted by implication to the exclusion of local regulation we must look to the whole purpose and scope of the legislative scheme.   There are three tests:  “(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern;  (2) the subject matter has been partially covered by a general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action;  or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the municipality.” ’  [Citations.]”   (Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist., supra, 49 Cal.3d at p. 423, 261 Cal.Rptr. 384, 777 P.2d 157.)

THE LEGISLATIVE SCHEME

 Relying heavily on section 830, appellant concludes that the “field of granting, conferring, and limiting ‘peace officer’ status on the employees of local agencies” is contained solely within the confines of Chapter 4.5.  We disagree.

Section 830 declares:  “Any person who comes within the provisions of this chapter and who otherwise meets all standards imposed by law on a peace officer is a peace officer, and notwithstanding any other provision of law, no person other than those designated in this chapter is a peace officer․”  (Emphasis added.)

Section 830 and the detailed provisions of the remainder of Chapter 4.5 are a result of recognition by the Senate in 1967 that “[t]here exists a large body of statutory law in this state describing what persons are or have the powers of peace officers, which body of law has been enacted piecemeal over the years and is dispersed throughout the codes;  and [¶] ․ [that i]t is essential that the laws be logical and clear with respect to who can act as peace officers, and where, and for what purposes, since the office of peace officer carries with it numerous powers and incidents which are neither desirable nor appropriate outside such office[.]”  (Sen.Res. No. 163 (1967 Reg.Sess.).)

The declarations “dispersed throughout the codes” that employees performing certain functions are peace officers appear in the substantive laws that confer existence, powers, and duties on state and local departments and agencies.   The enactment of Chapter 4.5 did not result in removal of these sections from the substantive codes.   Then and now they remain sources of peace officer status.

For example, in 1968, after the enactment of section 830, the Legislature amended a statute granting peace officer status to mental health counselors (Welf. & Inst.Code, § 6778) without thereafter including them in Chapter 4.5.

Similarly, in 1969, the Legislature left in place a pre-existing statute that granted peace officer powers to the director and the civil executive officers of the state Department of General Services (Gov.Code, § 14614), although members of a division of that department, the California State Police (Gov.Code, § 14613), were listed in section 830.2, subdivision (b).

In many instances, Chapter 4.5 makes specific reference to the substantive codes to identify the employing agency.   For example, section 830.34 describes as peace officers “(a) Persons designated as a security officer by a municipal utility district pursuant to Section 12820 of the Public Utilities Code․”

Public Utilities Code section 12820 (in ch. 6, “Powers and Functions of District”) authorizes a district to “employ a suitable security force.   The employees ․ that are designated ․ as security officers shall have the authority and powers conferred by subdivision (a) of Section 830.34 of the Penal Code․”

Such dual provisions occur frequently.   Indeed, in amendments as recent as 1989 and 1990, both to Chapter 4.5 and to the substantive codes, they are retained.  (See, e.g., § 830.6;  Ed.Code, § 39671;  and Gov.Code, § 14613.)

In some cases, the provisions of Chapter 4.5 do not refer to specific codes authorizing the employment of the listed peace officers, but refer to their employing agency.   For example, section 830.3 lists as peace officers investigators of the California Horse Racing Board (subd. (d)), food and drug investigators (subd. (f)), Labor Standards enforcement division investigators (subd. (g)), et cetera.

In other instances, officers are listed without explicit reference to the statutes that create and define their positions.   However, these officers (sheriffs, police officers, marshals, constables (§ 830.1)), are solely public officers with no counterpart in the private sector, and recourse to statute must be had to determine their sphere of action.

From the foregoing, it is clear that Chapter 4.5 describes those peace officer functions which members of the various categories may exercise, and that the substantive statutes authorize their existence and set forth their duties.   As the court pointed out in Boxx v. Board of Administration (1980) 114 Cal.App.3d 79, 170 Cal.Rptr. 538, the functions described in the various provisions of Chapter 4.5 are not exclusive to officers holding the titles listed in those sections.   The court stated that “police departments could exist and law enforcement powers be exercised by organizations not named in [Chapter 4.5].”  (Id. at p. 85, 170 Cal.Rptr. 538.)

In Boxx, the issue was whether, for purposes of retirement status, a particular group of patrolmen in fact exercised the duties and power of peace officers.   The court stated that the fact that the particular category was not listed in Chapter 4.5 did not mean that its members were not peace officers.

In Los Angeles County Safety Police Assn. v. County of Los Angeles (1987) 192 Cal.App.3d 1378, 237 Cal.Rptr. 920, the issue was whether the County of Los Angeles should be required to rename its security officers as “safety police officers” to conform with the designation used in section 830.4.   Although the court ruled for petitioner, it refused to do so on the ground that the officers would lose peace officer status under section 830.

The court stated:  “Petitioner erroneously argues that unless respondents rename the employees, those employees will lack authority to exercise peace officer powers pursuant to [Chapter 4.5].  The purpose of [that chapter] is ‘to authorize the named persons to exercise the statutory powers of a peace officer.’  [Citation.]   Failure of a category of peace officers to appear on any of the lists in Penal Code chapter 4.5, however, does not deprive it of peace officer authority.”  (192 Cal.App.3d at p. 1384, 237 Cal.Rptr. 920.)

DUTIES OF THE SHERIFF

 We find that peace officer functions are defined in relation to the peace officer's mission.   In connection with county jails, the definitive peace officer is the sheriff.

The duties of the sheriff are listed in Government Code sections 26600 et seq., and expanded in other codes.   The sheriff shall take charge of and keep the county jail and the prisoners in it (Gov.Code, § 26605;  Pen.Code, § 4000 et seq.), preserve peace (Gov.Code, § 26600), arrest persons who commit public offenses (Gov.Code, § 26601), prevent breaches of the peace and investigate public offenses (Gov.Code, § 26602), attend all superior courts and obey all lawful orders and directions of all courts held within his county (Gov.Code, § 26603), endorse, serve, and certify process (Gov.Code, §§ 26607–26609), et cetera.

The broad mandate to take charge of and keep the county jail and the prisoners in it involves all of the above, and is the subject of further detailed provisions.   Generally, the sheriff must treat prisoners humanely and without oppression.  (§§ 147, 149.)   He must feed, clothe, and house the inmates, maintain their health, and preserve their peace.  (§ 4011 et seq.)   He must receive and store their personal property upon their arrest and return it on release.  (§ 4003;  Gov.Code, § 26640.)   He must bring inmates before a magistrate after their arrest and as ordered by the court.  (§§ 145, 849.)   He must provide them with rehabilitative services (§§ 4011.8, 4018.5), supervise their work (§§ 4017–4018), and finally, confine or transport them to serve their sentences (§ 4000, subd. 4).

The sheriff must staff the jail with properly qualified and trained personnel.  (Cal.Code Regs., tit. 15, § 100 et seq.)   There is no single statutory provision which sets forth subcategories of employees whom the sheriff can utilize for these functions.   However, from various statutes we glean the possibility of undersheriffs and deputies (§ 830.1 and Gov.Code, § 31470.2), reserve or auxiliary sheriffs (§ 830.6), station officers (unarmed civilian employees who assist peace officers at the jail) and jailers (§ 4021), turnkeys (Gov.Code, § 31470.2), keepers and guards (§ 4020.8), bailiffs employed by the sheriff (Gov.Code, § 20021.10), and county peace officers (“employees of the sheriff employed in a county jail, detention or correctional facility and having as their primary duty and responsibility the supervision and custody of persons committed to such jail or facility, whether or not such employees are deputized․”)  (Gov.Code, § 20021.9).

Of these, only the custodial officers, transportation officers, and the sheriff, his deputies, and reserves are listed in Chapter 4.5.  (§§ 830.1, 831, 831.5, 831.6.)

In addition to the provisions for the keeping of the county jail addressed to the sheriff in the Penal Code, the Legislature created a Board of Corrections with responsibility to set standards for local jail facilities and personnel.  (§§ 6024–6041.)   The standards (published in Cal.Code Regs., tit. 15) are mandatory on any city, county, or city and county receiving state aid.  (§ 6035.)   Consequently, the sheriff must comply with these standards in staffing and operating the jail.

AUTHORITY OF COUNTIES TO TRANSFER CONTROL OF THE JAIL

 In 1957, the Legislature gave counties the option of placing responsibility for jail functions in a county employee, a director of correction.  (Gov.Code, § 23013.)

The County invoked that authority in 1987, creating by resolutions the new Department.   The action generated considerable controversy, and the county submitted the matter to the voters in the form of a Charter amendment.   New section 509 was ratified by the voters and added to the Charter on June 7, 1988.   This court upheld the constitutionality of the transfer in Beck v. County of Santa Clara (1988) 204 Cal.App.3d 789, 251 Cal.Rptr. 444.

Charter section 509 mandates that the board of supervisors “shall establish” a department of corrections and appoint a chief officer to operate the county jails.⁶  It further requires that the board “shall ensure” the availability of law enforcement personnel who are authorized to use firearms to guard and transport prisoners, and directs that the department of corrections and its chief officer report directly to the board.

Enabling ordinances in the County Code declared the existence of “a [county] department of correction” (§ A20–38), gave it jurisdiction over “all county functions, personnel and facilities relating to institutional punishment, care, treatment and rehabilitation of prisoners, both presentenced and sentenced” (excluding the Mountain View Work Furlough Center and juvenile facilities) (§ A20–39), recognized the position of director of the Department (§ A20–40) and declared the director's administrative duties and powers (§ A20–41).

Among other requirements, County Code section A20–41 mandated that the director run the department “in accordance with such rules and regulations as prescribed by state law and by the board of supervisors.”  (Subd. (a).)   It also declared:  “(b) The director shall be responsible and legally accountable for administering the county jail system and for performing those duties with respect to receiving and keeping prisoners in the jail and other related jail duties assigned to the sheriff in general law․”

After ratification by the voters, the Charter amendment was filed with the Secretary of State and published in Statutes 1988, Charter Chapter 10.   The significance of this step lies in the fact that county charters and amendments which are adopted by majority vote of the electors, filed with the Secretary of State, and published in the official state statutes, “shall supersede ․ all laws inconsistent therewith.   The provisions of a charter are the law of the State and have the force and effect of legislative enactments.”  (Cal.Const., art. XI, § 3(a).)

The Legislature recognizes this in Government Code sections 23714 and 23724:  charter provisions “become the organic law [of the county] relative to the matters provided therein, ․ and shall supersede all laws inconsistent with such charter relative to the matters provided in such charter.”

“[I]f a charter provision is properly authorized, then it supersedes general state laws in conflict, but only to the extent it is not limited by the Constitution.  [Citation.]   For, it is without dispute that local rules or regulations relating to matters which a county is constitutionally empowered to regulate by charter supersede general state laws on the subject, except as to matters covered by general law where ‘(a) the local legislation attempts to impose additional requirements [citation], or (b) the subject matter is one of state concern, and the general law occupies the entire field [citation], or (c) the subject matter is of such statewide concern that it can no longer be deemed a municipal affair [citation].’ ”  (Younger v. Board of Supervisors (1979) 93 Cal.App.3d 864, 870, 155 Cal.Rptr. 921, quoting In re Hubbard (1964) 62 Cal.2d 119, 127, 41 Cal.Rptr. 393, 396 P.2d 809.)

However, our Supreme Court recently cautioned that a court asked to resolve a putative conflict between a state statute and a charter city or county measure “initially must satisfy itself that the case presents an actual conflict between the two.”  (California Federal Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1, 16, 283 Cal.Rptr. 569, 812 P.2d 916.)  “If it does not, a choice between the conclusions ‘municipal affair’ and ‘statewide concern’ is not required.”  (Ibid.)

In the instant case, Charter section 509 and the ordinances implementing it are not in conflict with general state laws and do not attempt to impose additional requirements on a subject of state concern.   Rather, the local legislation is designed to comply with the legislatively imposed condition precedent to the establishment of a local department of corrections.

First, article XI, section 4 of the California Constitution requires that county charters provide for county officers, set forth their powers and duties, and empower the county board of supervisors to fix and regulate by ordinance the deputies and employees of such officers and prescribe and regulate their powers, duties, and qualifications, and the manner of their appointment and removal.

Such powers and duties of county officers, as fixed by the Charter, are not “ ‘subject to and controlled by general laws'․ [because,] to the extent that they are inconsistent with those fixed by the general laws, they would be ineffective and void.   If they did not so conflict with those fixed by the general laws ․ the charter provisions ․ though valid, would simply amount to a re-enactment of that which was already the law—a mere superfluous or idle act.   We do not think the framers of the amendment [to the state constitution allowing counties to adopt charters], nor the people of the state who ratified it, contemplated any such absurd result.”  (Reuter v. Board of Supervisors (1934) 220 Cal. 314, 320–321, 30 P.2d 417.)

The same year that Government Code section 23013 was enacted, our Supreme Court considered the complaint of a Los Angeles County deputy sheriff who had been removed from office under statutes disqualifying a person convicted of a felony (Gov.Code, § 1028, now § 1029, and hereafter referred to as 1029), and relating to events causing a vacancy in office (Gov.Code, § 1770).   The deputy had never received the hearing prior to his removal that the Los Angeles County Charter required.

The Supreme Court stated:  “the general laws in question here [sections 1029 and 1770] do not appear to be part of an overall legislative design to occupy an entire field of law in a matter of statewide concern․   Rather, the statutes here involved relate to but a narrow segment of the field of public employees, a field which the local governments have been granted the constitutional power to regulate.

“It may be conceded that the state has an interest in establishing qualification standards for peace officers at all levels of government, and, as noted hereinabove, the power of the Legislature to prescribe such qualifications, for county officers is specifically preserved by section 5 [now section 1] of article XI.   However, as also noted previously, section 71/212 [now sections 3 and 4] of article XI authorizes charter provisions which empower ‘boards of supervisors, by ordinance’ to fix and regulate the manner of appointment and removal of deputies and other attaches, and specifies that such charter provisions, and necessarily the ordinances enacted thereunder, shall control over general laws on the subject which are enacted pursuant to section 5 [now section 1] of article XI.”   (Pearson v. County of Los Angeles (1957) 49 Cal.2d 523, 535–536, 319 P.2d 624.)

Second, the authorization of local departments of correction harmonizes with other actions relating to jails taken by the Legislature in 1957.  “[W]e must construe legislation ‘in context, keeping in mind the nature and purpose of the statutory act.’  [Citation.]   In so doing, we consider matters such as ‘ “ ‘the object in view, the evils to be remedied, the history of the times and of legislation upon the same subject, public policy, and contemporaneous construction.’ ” '  [Citation.]”  (Jones v. Keppeler (1991) 228 Cal.App.3d 705, 709, 279 Cal.Rptr. 168.)

In the second paragraph of Government Code section 23013, the Legislature authorized counties to form joint departments of correction.   Later that same year, the Legislature enacted the Joint County Jail Act which authorized joint county jail districts.  (§ 4050 et seq.)   Participating counties were empowered to appoint a superintendent of the joint jail district who “has such powers and duties as has a sheriff, with respect to county jails․”  (§ 4065.)   That statute also made the provisions of section 4000 et seq., specifically applicable to such districts.

In authorizing joint jail districts, the Legislature created a public agency run by a public official who was not accountable to either county, but who was responsible to the board of directors created by the counties to run the district.  (§ 4065.)   Nevertheless, the duties and powers conferred on joint jail district superintendents were well-described in existing law which theretofore had imposed solely on the sheriff the duty of keeping the county jail and the prisoners in it.   Consequently, conferring on the superintendent “the powers and duties as has the sheriff, with respect to county jails” was a convenient way of referring to a voluminous body of applicable law.

In contrast, the slightly earlier language of the first paragraph of Government Code section 23013 authorizing county departments of correction spells out in detail that a county department of correction “shall have jurisdiction over all county functions, personnel, and facilities ․ relating to institutional punishment, care, treatment, and rehabilitation of prisoners, including ․ the county jail and ․ [its] functions and personnel.”

 Nonetheless, as noted above in regard to joint jail districts, these county functions were previously authorized to be carried out only by the sheriff.   Therefore, the transfer of “county functions” had the same effect as conferring “the powers and duties as had the sheriff, with respect to county jails.”   When counties were given the option of transferring the duties from the sheriff to another county officer, it is necessarily implied that the transfer of duties included the transfer of powers to carry them out.

It has long been a rule of statutory construction that “ ‘A construction should not be given to a statute, if it can be avoided, which would lead to absurd results or to a conclusion plainly not contemplated by the [L]egislature.’  [Citation.]”  (Reuter v. Board of Supervisors, supra, 220 Cal. at p. 321, 30 P.2d 417.)   The result would be absurd, indeed, if being subject to the requirements of law in operating a county jail, its director was left powerless to carry them out.

“The duties of a public officer include, not only those which lie within the direct definition of the statute, but also those which are necessary to the accomplishment of the purpose of his office ․ where they promote the execution of a mandate of law.”  (Southern Pacific R.R. Co. v. Stibbens (1930) 103 Cal.App. 664, 678, 285 P. 374.)

Consequently, we do not believe the Legislature contemplated separating duties from powers (and then, only for county departments of correction), leaving these county officers dependent on the sheriffs they replaced for personnel empowered to perform their duties.

In the instant case, if Chapter 4.5 is held to control valid charter provisions relative to the employment of local peace officers, then notwithstanding Government Code section 23013, that chapter “would render nugatory the constitutional provisions empowering local governments to control the manner of appointment and removal of their officers and employees.   It thus follows that insofar as general qualification statutes attempt to regulate appointment and removal of local officials, they are subordinate to provisions of freeholders' charters, and valid ordinances enacted thereunder.  [Citation.]”  (Pearson v. County of Los Angeles, supra, 49 Cal.2d at p. 536, 319 P.2d 624.)

SOURCE OF PEACE OFFICER STATUS

Nevertheless, appellant argues that although the County might be able to create the Department and staff it with custodial officers, Chapter 4.5 limits the status the Department may confer.   Appellant concludes that a director of corrections may not employ peace officers with section 830.1 powers independently of the sheriff.   Appellant bases this on the omission of “employees of a county department of corrections” from any section conferring peace officer status on corrections workers, and the definition of custodial officers as “public officers, not peace officers,” in sections 831 and 831.5.

To bolster its position, appellant recounts several failed recent attempts to amend Chapter 4.5 to grant local correctional personnel full peace officer status.   However, unpassed bills “ ‘[a]s evidences of legislative intent ․ have little value.’  [Citations.]”  (Miles v. Workers' Comp. Appeals Bd. (1977) 67 Cal.App.3d 243, 248, fn. 4, 136 Cal.Rptr. 508.)   We are “bound by the statute presently in effect, not by a legislative statement of intent that failed to become law.”  (Peralta Community College Dist. v. Fair Employment & Housing Com. (1990) 52 Cal.3d 40, 52, 276 Cal.Rptr. 114, 801 P.2d 357.)

Thus the crux of the matter lies in the manner in which peace officer status is created and conferred.

Article XI, section 7 of the Constitution provides:  “A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.”

That authority is recognized by the Legislature in Government Code section 1029, subdivision (a).   That statute lists persons who are disqualified from “․ holding any office as a peace officer or being employed as a peace officer of the state, county, city, city and county or other political subdivision ․ which confers upon the holder or employee the powers and duties of a peace officer.”  (Emphasis added.)

Additionally, and more directly, counties are empowered to provide extended police protection services within county service areas established for that purpose (Gov.Code, § 25210.40) and are authorized to perform “all acts necessary to provide adequate police protection in the district.”  (Health & Saf.Code, § 20331.)

 As to the interplay between Chapter 4.5 and Government Code section 23013, it is a standard rule of statutory construction that the repeal of statutes by implication is not favored.   (People v. Connor (1964) 229 Cal.App.2d 716, 718, 40 Cal.Rptr. 603.)   This is especially true where the prior act has been generally understood and acted on.   In the absence of express terms, it will be presumed that the Legislature did not intend by a later act to repeal an earlier one on the same subject if, by a fair and reasonable construction, effect can be given to both.  (Cal. Drive–In Restaurant Assn. v. Clark (1943) 22 Cal.2d 287, 140 P.2d 657.)   To overcome the presumption, the two acts must be irreconcilable, clearly repugnant, and so inconsistent that they cannot have concurrent operation.   (People v. Connor, supra, 229 Cal.App.2d at p. 718, 40 Cal.Rptr. 603.)

 Since appellant's interpretation of the operation of Chapter 4.5 would vitiate Government Code section 23013, to give both statutes “a fair and reasonable construction,” we briefly look to the legislative provisions relating to the keeping of prisoners in state and local institutions, and the qualifications, training, powers, and authority of those holding them.

California's system of “institutional punishment” falls into two main categories:  state and local.   There are two statewide agencies, the Department of Corrections, the prison system for adults under the control of the Director of Corrections (§ 5000 et seq., and numerous entries under “correctional institutions, generally”), and the Department of the Youth Authority for juveniles (Welf. & Inst.Code, § 1700 et seq.).   Discharged adults and juveniles are both subject to parole supervision.   On the local level, counties and some cities maintain jails and their satellites:  work furlough programs, road camps, et cetera, for adults, and juvenile halls and ranches for minors.   Counties and cities also operate community facilities for state prisoners and parolees and certain juvenile offenders under contract to the Department of Corrections or the Youth Authority (see below).

Of those staffing these facilities, correctional, parole, and probation officers of the Department of Corrections, the Department of the Youth Authority, and the Youthful Offender Parole Board are peace officers and may carry firearms under certain terms and conditions.  (§ 830.5.)   Transportation officers and employees having custodial responsibilities in an institution operated by a probation department are also deemed peace officers and may carry firearms if authorized by their employing agency.  (§ 830.5.)

Correctional officers employed in Substance Abuse Community Correctional Detention Centers (§ 6241 et seq.) or local facilities for state prisoners and parole violators (§ 2910 et seq.) operated by cities and counties under contract with the Department of Corrections or the Department of the Youth Authority are peace officers (§ 830.55).   They may possess firearms in the course of their duties “under the direction of the superintendent of the facility, while engaged in transporting prisoners, guarding hospitalized prisoners, or suppressing riots, lynchings, escapes, or rescues in or about a detention facility․”  (§ 830.55, subd. (b).)

Custodial officers in a county with a population of less than 425,000 are public officers, but may carry firearms if authorized by the sheriff or chief of police if transporting prisoners, quelling jail riots, et cetera.  (§ 831.5.)   Transportation officers under contract to a peace officer may carry firearms while transporting prisoners for the duration of the contract.  (§ 831.6.)

The only officers who have “the authority and responsibility for maintaining custody of prisoners and [who] perform[ ] tasks related to the operation of a local detention facility used for the detention of persons usually pending arraignment or upon court order either for their own safekeeping or for the specific purpose of serving a sentence therein[,]” who are denied the “right to carry or possess firearms in the performance of [their] prescribed duties[,]” are custodial officers employed by law enforcement agencies of cities or of counties with populations greater than 425,000.  (§ 831.)

If section 831 officers were the only custodial staff a county director of correction could employ, section 831 would clearly be irreconcilable with Government Code section 23013.   Not only would the director be unable to comply with both state and local requirements for the operation of the jail, but, “[a]s the First District Court of Appeal has noted:  ‘It cannot be seriously contended that the supervision of prison inmates is any less hazardous than the supervision of the general public by policemen.   Detection of criminal activity within the walls of a prison cannot be functionally distinguished from the detection of criminal activity in society.   Fellow correctional officers and prison inmates are entitled to the same expectation as the general public with respect to protection against criminal attack.’ ”   (People v. Garcia (1986) 178 Cal.App.3d 887, 895–896, 223 Cal.Rptr. 884, quoting Kimball v. County of Santa Clara (1972) 24 Cal.App.3d 780, 785, 101 Cal.Rptr. 353.)

Since those who ultimately reside in prison sojourn first in the county jail, it cannot seriously be contended that supervision of county jail inmates is any less hazardous than the supervision of prison inmates.

In our survey of the body of law relating to corrections in the State of California, we have seen that the Legislature has clearly intended to provide for the practical realities of day-to-day operations.   Furthermore, when we recall our examination of the relationship between Chapter 4.5 and the substantive codes, we saw that Chapter 4.5 is not an exclusive list of the personnel that a county sheriff, state Department of Correction, or any other law enforcement agency may employ.

Consequently, we conclude that Chapter 4.5 does not limit the County director of correction in staffing his department, a law enforcement agency (People v. Garcia, supra, 178 Cal.App.3d at p. 895, 223 Cal.Rptr. 884), consistently with the requirements of law, and that Government Code section 23013 and section 831 may operate concurrently.

Therefore, as the trial court found, and we agree, the director of correction may confer limited peace officer status on qualified and properly trained officers for the performance of their duties in their operation of the county jail.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   Government Code section 23013 provides, in relevant part:  “The board of supervisors of any county may, by resolution, establish a department of corrections, to be headed by an officer appointed by the board, which shall have jurisdiction over all county functions, personnel, and facilities, or so many as the board names in its resolution, relating to institutional punishment, care, treatment, and rehabilitation of prisoners, including, but not limited to, the county jail and industrial farms and road camps, their functions and personnel.”

2.   In its judgment, the trial court referred to the “Department of Corrections” and “(1) custodial deputies, sergeants and lieutenants and (2) correctional officers.”   Although section 509 of the Charter provided for the establishment of a “department of corrections,” it was ultimately called “Department of Correction” in the Santa Clara County Code (hereafter, County Code).  (County Code, § A20–38, et seq.)   Furthermore, the County Code calls the employees referred to by the court as “custodial deputies,” “correction deputies.”  (County Code, §§ A20–41, A20–42.1.)   This opinion will conform to the nomenclature of the County Code.

3.   The decision was appealed to this court (no. H006904), but the appeal was abandoned May 22, 1990.

4.   Penal Code section 831 provides, in part:  “(a) A custodial officer is a public officer, not a peace officer, employed by a law enforcement agency of a city or county who has the authority and responsibility for maintaining custody of prisoners and performs tasks related to the operation of a local detention facility used for the detention of persons usually pending arraignment or upon court order either for their own safekeeping or for the specific purpose of servicing a sentence therein.“(b) A custodial officer shall have no right to carry or possess firearms in the performance of his prescribed duties․”

5.   Further statutory references are to the Penal Code unless otherwise indicated.  “Chapter 4.5” refers to Penal Code chapter 4.5, section 830 et seq.

6.   The complete text of section 509 provides:  “The board of supervisors shall establish a department of corrections and appoint a chief officer to operate the county jails for sentenced and unsentenced prisoners and to carry out such other functions of a department of corrections as the board determines.“The board shall ensure that there are at all times an adequate number of trained law enforcement personnel who are authorized to use firearms to guard and transport prisoners.“The savings of public funds generated by creation and operation of the department of corrections shall be used for other essential governmental services.“The board shall honor the memorandum of understanding between the Deputy Sheriff's [sic ] Association, Inc., of Santa Clara County and the county, effective September 21, 1987, and shall engage in good faith negotiations for successor memoranda.   The department of corrections and chief officer thereof shall report directly to the board of supervisors.”

PREMO, Acting Presiding Justice.

COTTLE and ELIA, JJ., concur.