Majority
I. BACKGROUND
Late one evening in Brentwood, Baugh was pulled over while driving a yellow Chevy Cavalier registered to the mother of Joey Tipton-Garcia, Baugh's friend and neighbor. Although the car was owned by someone else, Baugh regularly drove it.
Officer Jonathan Colburn made the traffic stop when he saw the car had an inoperable headlight. Sergeant David Schroer, providing backup, alerted Officer Colburn to a .22 caliber round he spotted in the coin tray. In addition, Officer Colburn noticed the car's ignition switch was torn out. Suspecting a vehicle theft, he ordered Baugh out of the car and began a search.
As Baugh got out of the vehicle, Officer Colburn saw a small wooden bat wedged between the driver-side door and seat. He also found two bags of .22 caliber ammunition under the driver's seat and a loaded .22 caliber rifle disguised as a baseball bat protruding from the trunk. At that point, he took
1 All further statutory citations are to the Penal Code unless noted otherwise.
Following Baugh's arrest, he was charged with three felony offenses: being a felon in possession of a firearm (§ 29800, subd. (a)(1)) (Count One), being a person prohibited from possessing a firearm in possession of ammunition (§ 30305, subd. (a)) (Count Two), and possessing a billy ( § 22210 ) (Count Three). A prior strike for assault with a deadly weapon upon a police officer in violation of section 245, subdivision (c), was also alleged.
At trial, relying on testimony from Officer Colburn, the People argued the small wooden bat was a billy. In his defense, Baugh claimed it was not a billy but a tool called a "tire thumper."
Baugh told the jury he owned the bat because it was an essential tool for his work as a commercial truck driver. He explained that commercial truck drivers
II. DISCUSSION
On Count Three, the jury accepted the People's view of the evidence and returned a guilty verdict. It failed to reach a verdict on Counts One and Two, presumably because, unlike the small wooden bat, which Baugh admitted placing next to him but tried to explain away, it saw reasonable doubt as to whether he knew the scattered ammunition and the rifle in the trunk were in a borrowed car.
At sentencing on the section 22210 conviction, the trial court struck the charged strike prior pursuant to section 1385, and placed Baugh on formal probation for three years. This timely appeal followed.
A trial court has a sua sponte duty to instruct the jury on the elements of a charged offense. ( People v. Mil (2012) 53 Cal.4th 400 , 409, 135 Cal.Rptr.3d 339 , 266 P.3d 1030 .) On appeal, "[t]he independent or de novo standard of review is applicable in assessing whether instructions correctly state the law [citation] and also whether instructions effectively direct a finding adverse to a defendant by removing an issue from the jury's consideration [citation]." ( People v. Posey (2004) 32 Cal.4th 193 , 218, 8 Cal.Rptr.3d 551 , 82 P.3d 755 .) In construing the relevant statute, "[w]e must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences." ( People v. Jenkins (1995) 10 Cal.4th 234 , 246, 40 Cal.Rptr.2d 903 , 893 P.2d 1224 .)
In this case, the court instructed under CALCRIM No. 2500, "< Alternative 3A-object capable of innocent uses >," the prosecution had to prove that defendant possessed the billy, he knew he possessed the billy, and "[t]he defendant possessed the object as a weapon. When deciding whether the defendant possessed the object as a weapon, consider all the surrounding
Grubb established the applicable test for determining whether a defendant has the requisite intent for felony weapons possession where, as here, the object at issue has a lawful use. ( Grubb , supra , 63 Cal.2d at pp. 619-622 & fn. 9, 47 Cal.Rptr. 772 , 408 P.2d 100 .) Rejecting a claim that former section 12020 was void for vagueness, our Supreme Court in Grubb found that, on the facts presented there, possession of a broken baseball bat constituted illegal possession of a billy, without regard to the possessor's intent to use it as a weapon. ( Id. at pp. 619-622, 47 Cal.Rptr. 772 , 408 P.2d 100 .) The defendant admitted to the police he possessed the bat for "self-defense" and had previously used it as a weapon, which "set forth the very elements that convert the broken bat otherwise usable for peaceful purposes into the kind of instrument proscribed by the statute." ( Id. at pp. 617-618, 47 Cal.Rptr. 772 , 408 P.2d 100 .)
The Grubb court ultimately reversed the defendant's conviction based on a postarrest confession elicited in violation of his right to counsel and privilege against self-incrimination ( Grubb , supra , 63 Cal.2d at pp. 617-618, 622, 47 Cal.Rptr. 772 , 408 P.2d 100 ), but in the course of discussing the issue of facial constitutionality, the court expounded at some length on the scope of the challenged statute. "The Legislature obviously sought to condemn weapons common to the criminal's arsenal," the court explained, but "it meant as well 'to outlaw instruments which are ordinarily used for criminal and unlawful purposes.' [Citations.] The Legislature's understandable concern with the promiscuous possession of objects dangerous to the lives of members of the public
2 Operative January 1, 2012, former section 12020 was repealed (Stats. 2010, ch. 711, § 4) and the pertinent portions were reenacted without substantive change in section 22210. (See People v. Brown (2014) 227 Cal.App.4th 451 , 454, fn. 1, 173 Cal.Rptr.3d 812 .)
Sustaining the constitutionality of former section 12020, the court pointed out that while a defendant may seek to "justify his possession of an instrument found under suspicious circumstances by proof of his intent to use it in accordance with its ordinary legitimate design" ( Grubb , supra , 63 Cal.2d at p. 621, fn. 9, 47 Cal.Rptr. 772 , 408 P.2d 100 ), "[t]he prosecution need not show the intent of the possessor to use an instrument in a violent manner." ( Ibid . ) "The concomitant circumstances may well proclaim the danger of even the innocent-appearing utensil. The Legislature thus decrees as criminal the possession of ordinarily harmless objects when the circumstances of possession demonstrate an immediate atmosphere of danger ." ( Id. at p. 621, 47 Cal.Rptr. 772 , 408 P.2d 100 , italics added.) Included among these circumstances, the court explained, are "the time, place, destination of the possessor, the alteration of the object from standard form, and other relevant facts indicat [ing] that the possessor would use the object for a dangerous, not harmless, purpose." ( Id. at pp. 620-621, 47 Cal.Rptr. 772 , 408 P.2d 100 .)[3]
In Fannin , which illustrates the Grubb "circumstances of possession" test in application, the object at issue was a metal chain with a padlock attached to one end. ( Fannin , supra , 91 Cal.App.4th at pp. 1400-1401, 111 Cal.Rptr.2d 496 .) The defendant tried to explain that the chain and padlock were necessary for securing his bicycle, but his bicycle and padlock key were at home when he was arrested. ( Id. at p. 1401, 111 Cal.Rptr.2d 496 .) And he admitted to a police officer he was carrying the device for self-defense because "someone had tried to 'punk' him the day before." ( Ibid. ) Affirming a conviction for possession of a slungshot, the court concluded this admission "identified the bicycle lock as a weapon, and brought it within the class of objects prohibited" by the statute. ( Id. at p. 1405, 111 Cal.Rptr.2d 496 .)
The Fannin court held that "[i]ntent to use a weapon is not an element of the crime of weapon possession. 'Proof of possession alone is sufficient.' [Citation.] However, if the object is not a weapon per se, but an instrument with ordinary innocent uses, the prosecution must prove that the object was possessed as a weapon . The only way to meet that burden is by evidence 'indicat[ing] that the possessor would use the object for a dangerous, not harmless, purpose.' [Citation.] The evidence may be circumstantial, and may be rebutted by the defendant with evidence of 'innocent usage.' " ( Fannin , supra , 91 Cal.App.4th at p. 1404, 111 Cal.Rptr.2d 496 .) "Intended use is not an element of weapon
3 By way of example, the court explained that, under this test, "the statute would encompass the possession of a table leg, in one sense an obviously useful item, when it is detached from the table and carried at night in a 'tough' neighborhood to the scene of a riot. On the other hand the section would not penalize the Little Leaguer at bat in a baseball game." ( Grubb , supra , 63 Cal.2d at p. 621, 47 Cal.Rptr. 772 , 408 P.2d 100 .)
In the face of this well-established case law, Baugh argues "if the object in evidence
A common variation on the word "weapon," employing it as a transitive verb, is the term "to weaponize" something, meaning to adapt it for use as a weapon. (Merriam-Webster Dictionary Online (2018) < https://www.merriam-webster.com/dictionary/weaponize> [as of February 8, 2018].) In light of the fact Baugh kept a wooden bat by his side, at the ready, under circumstances in which an inference could be drawn that he felt the need for a weapon and had a willingness to use it, we think a rational jury could have found the bat was in his possession because he viewed it as weaponized-in short, it was a useful cudgel-not because he had some innocent use in mind.[4] The
4 Relevant to the overall context here was Baugh's testimony about the prior incident in which he was "jumped," since it suggested not only that he had an expectation of possible combat while driving in his neighborhood, but that he is a pugnacious character with a history of assaultive conduct using weaponized objects. Baugh testified that a week or two before the traffic stop that led to his arrest, he was "socked in the face" in the Cavalier at an intersection near his mother's home, and "know [ing] how to defend [himself]," got out of the car because he was not "going to put up with that." After getting out, he said, he got into a fight with 20 older men, who had moved into the neighborhood recently, were trying to "bully the neighborhood," and appeared to be "up to no good." He was left with a "black eye" and "about 47 lumps on my head from being kicked and stomped." The jury also heard testimony from Officer Colburn that Baugh was "defiant" and "argumentative" during the traffic stop and that he had a prior felony conviction for assaulting an officer with a deadly weapon by "striking a police officer's car with [his] car deliberately." (See People v. Claborn (1964) 224 Cal.App.2d 38 , 41-42, 36 Cal.Rptr. 132 [defendant who intentionally rammed his car head-on into an occupied police car was guilty of assault with a deadly weapon].)
Relying on guidance in the Use Notes, Baugh insists these particular instructions were defective because CALCRIM No. 2500 in terms requires the prosecution to prove he intended to use his bat as a weapon. He bases this contention on the language, "The People do not have to prove that the defendant intended to use the object as a weapon," which he correctly points out is subject to the explicit caveat that it should be given "only if alternative 3B"-the scenario involving an object designed for exclusive use as a
Finally, Baugh argues, "Telling the jury that it need not consider the defendant's intent regarding possession of an object which has other and lawful uses than as a weapon identified by statute invites the jury to ignore rather than compare and consider a critical part of the defense case." In effect, he argues, "Baugh was not allowed to have his jury consider his intention in possessing the tire thumper cum billy ...." This last line of argument, too, is meritless. It is inaccurate to say the trial court told the jury Baugh's intent regarding
We view the issue presented here in the same way. The Legislature enacted section 22210 to criminalize the possession of dangerous weapons. The Grubb court's articulation of the legislative intent behind that offense more than 50 years ago remains valid today, as does the "circumstances of possession" test announced there. Where an object charged to be a dangerous weapon has a lawful use, the prosecution must prove the defendant possessed it as a weapon. Because imposing an additional requirement of proof of intent to use the object as a weapon "would threaten to narrow the enforceable scope of [the statute] unwisely" ( Rubalcava , supra , 23 Cal.4th at pp. 337-338, 96 Cal.Rptr.2d 735 , 1 P.3d 52 (conc. opn. of Werdegar, J.)), any argument that violation of section 22210 should be viewed as a specific intent crime is best directed to the Legislature. We decline to adopt it by judicial construction.
III. DISPOSITION
Affirmed.
We concur:
Ruvolo, P.J.
Reardon, J.
When asked why he had the small wooden bat with him even though he was not in a commercial truck, Baugh answered, "if you do not take your stuff out of the truck, somehow, your tools might come up missing by the other driver" of the shared vehicles. He claimed he placed it next to the driver's seat specifically to ensure he would remember to bring it down from the car.
Tipton-Garcia, the car's primary driver and Baugh's friend and neighbor, testified she was familiar with the tools of commercial truck drivers because her father worked as one. She previously saw the small wooden bat "[a]round the house" and believed it was a tire thumper.
The People countered that Baugh's version of events was implausible, and offered an alternative view of his intent based on the circumstances. At the time of the traffic stop, the People pointed out, Baugh was neither driving a commercial truck nor steadily employed with a trucking company, so it made no sense that he would need a tire thumper close at hand.
Because this incident occurred outside any time frame that would put Baugh behind the wheel of a commercial truck, the People suggested the wooden bat was a weapon intended for self-defense, which is why he had it within easy reach from the driver's seat. Highlighting Baugh's statement that
In Raleigh , a lodestar Court of Appeal case discussed in Kevin F . -and, more importantly, by our Supreme Court in Grubb , which described Raleigh as having enunciated a definition of the term "billy" similar to its own definition (see Grubb , supra , 63 Cal.2d at p. 621, fn. 8, 47 Cal.Rptr. 772 , 408 P.2d 100 )-the appellate panel wrote, "When it appears ... that an instrumentality other than one falling within the first class is capable of being used in a 'dangerous or deadly' manner, and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require , we believe that its character as a 'dangerous or deadly weapon' may be thus established, at least for the purposes of that occasion." ( Raleigh , supra , 128 Cal.App. at pp. 108-109, 16 P.2d 752 , italics added.) Prefiguring Grubb , Raleigh made clear that possessing an object with the intent to use it as a dangerous or deadly weapon should the circumstances require amounts to illegally possessing it as such. ( Ibid. )
Thus, contrary to Baugh's reading of Raleigh , that case is consistent with the rule more fully articulated in Grubb that, depending on the circumstances, an ordinary object may constitute a weapon if the defendant possesses it as a weapon. As we explained in Kevin F. , "conviction for possession of a concealed dirk or dagger does not require specific intent to stab anyone with such an instrument." (See Kevin F. , supra , 239 Cal.App.4th at p. 365, 191 Cal.Rptr.3d 144 , citing People v. Rubalcava (2000) 23 Cal.4th 322 , 328, 332, 96 Cal.Rptr.2d 735 , 1 P.3d 52 ( Rubalcava ) [affirming a conviction for carrying a concealed dirk or dagger even though the defendant auto mechanic claimed the knife was one of his tools].) And as the Sixth District recently held, "imminent use of
Nor were the People obliged to show that Baugh's bat had been physically altered from its original form to enhance its utility as a weapon, as was the case with the bats involved in both Grubb , supra , 63 Cal.2d at page 616, 47 Cal.Rptr. 772 , 408 P.2d 100 ("[t]he last few inches of the handle had been broken from the bat; the instrument was 20 inches long, taped at the smaller or handle end, and heavier at the unaltered end") and Davis , supra , 214 Cal.App.4th at page 1325, 155 Cal.Rptr.3d 128 ("[a] number of holes had been drilled partially through the handle, and it had a leather wrist strap"). "[A]lteration of the object from standard form" is but
5 Cf. People v. Stiltner (1982) 132 Cal.App.3d 216 , 230, 182 Cal.Rptr. 790 ("A person is 'armed' with a deadly weapon when he simply carries a weapon or has it available for use in either offense or defense. [Citation.] The evidence shows the knife was carried by defendant in his back pocket, thus available for immediate use for offense or defense. The statute at issue [section 12022.3] does not require a defendant actually use the weapon for offense or defense, just that he carry it in a manner available for such use.").
We agree with the Attorney General here. To the extent CALCRIM No. 2500 suggests something different from the rule laid down in an unbroken line of precedent over many decades in weapons possession cases involving objects capable of innocent use, as that rule was announced in Grubb and as it has been applied in Fannin , Davis and Huynh , among other cases, it suffices to note that the CALCRIM pattern jury instructions are "not themselves legal authority." ( People v. Johnson (2016) 243 Cal.App.4th 1247 , 1269, 197 Cal.Rptr.3d 353 ; see People v. Morales (2001) 25 Cal.4th 34 , 48, fn. 7, 104 Cal.Rptr.2d 582 , 18 P.3d 11 ["[J]ury instructions, whether published or not, are not themselves the law, and are not authority to establish legal propositions or precedent. They should not be cited as authority for legal principles in appellate opinions. At most, when they are accurate, ... they restate the law."].)
In any event, the Authority section following CALCRIM No. 2500 states the correct rule: "Need Not Prove Intent to Use," citing
In Rubalcava, supra, 23 Cal.4th at page 329, 96 Cal.Rptr.2d 735 , 1 P.3d 52 , our Supreme Court declined an invitation to declare weapons possession in violation of former section 12020, subdivision (a), a specific intent crime. There, the defendant argued that not requiring specific intent would unfairly "make a felon out of ... 'the auto mechanic who absentmindedly slips a utility knife in his back pocket before going out to lunch[,] ... [or] the parent who wraps a sharp pointed knife in a paper towel and places it in his coat to carry into a PTA potluck
Cases cited
- People v. Mil 53 Cal.4th 400 p. 442
- People v. Posey 32 Cal.4th 193 p. 442
- People v. Jenkins 10 Cal.4th 234 p. 442
- People v. Huynh 19 Cal.App.5th 680 p. 443, p. 446
- People v. Davis 214 Cal.App.4th 1322 p. 443
- People v. Grubb 63 Cal.2d 614 at 620-621 p. 443
- People v. Fannin 91 Cal.App.4th 1399 p. 443
- People v. Gaitan 92 Cal.App.4th 540 at 547 p. 448
- People v. Taylor 93 Cal.App.4th 933 at 941 p. 448
- People v. Raleigh 128 Cal.App. 105 p. 903
- People v. Kevin F. 239 Cal.App.4th 351 p. 903
- People v. Hall 2 Cal.5th 494 p. 903
- People v. Rubalcava 23 Cal.4th 322 p. 903
- People v. Johnson 243 Cal.App.4th 1247 p. 905
- People v. Morales 25 Cal.4th 34 at 48 p. 905