Opinion
Defendant Jack Kenneth Davis appeals a judgment entered upon a jury verdict finding him guilty of possession of a deadly weapon,
I. BACKGROUND
A. The Traffic Stop
Defendant was driving his pickup truck in January 2010. A sheriff’s deputy, Osvaldo Hernandez, stopped him for making an unsafe lane change. Although the truck had a current registration sticker, when Hernandez asked him for his registration, defendant told Hernandez that his registration had expired. A call to dispatch confirmed that the registration had indeed expired.
Hernandez asked defеndant to step out of his truck and asked if he had any weapons on him. Defendant said he had a pocketknife. Hernandez found one knife clipped to the outside of defendant’s right front pants pocket, which Hernandez understood to be lawful because it was not concealed, and a second knife inside defendant’s vest. Hernandez asked defendant if he had any other weapons, and defendant said he had a bat in the backseat of his vеhicle. Hernandez found the bat. A number of holes had been drilled partially through the handle, and it had a leather wrist strap. Hernandez believed the holes would make the bat lighter or make it easier to grip it. The bat had been painted black, and in two separate places had two red lightning bolts drawn on it. Hernandez asked defendant why he had the bat, and defendant said he repossessed vehicles late at night and needed the bat for protectiоn. Hernandez also found some tools in defendant’s vehicle, which had red “SS” lightning bolts imprinted on them. Defendant told Hernandez he was an electrician and used the lightning bolts to mark his tools.
Hernandez testified that double lightning bolt markings were used by neo-Nazi White supremacist groups and skinheads. Hernandez was part of the
B. Prior Conviction
In 1996, during a search of defendant’s residence, police officers found and seized a black billy club from his bedroom. At the time, defendant admitted the billy club belonged to him. An officer told him it was illegal to have the billy club. Defendant was convicted of possessing the billy club. In her testimony at trial in this case, an оfficer who was involved in the 1996 search testified that if she had found the bat at issue in this case, she would have considered it a billy and confiscated it.
C. Defense and Rebuttal
A friend of defendant’s testified in his defense that defendant used the bat to play with a dog at the friend’s automotive shop. The friend testified that the lightning bolts were defendant’s “trademark,” which he used to mark all his tools to prevent other people from taking them. Defendant’s longtime girlfriend and his stepdaughter testified that defеndant put the lightning bolt symbol on his tools and that they did not know defendant to be a skinhead or a member of a neo-Nazi or White supremacist group. His girlfriend also testified that defendant kept the bat in the back of his truck and that he used it to play with a dog.
Defendant testified that he supplemented his income by repossessing vehicles for a finance company. In the course of his work, he had “been shot at, [had] had baseball bats swung at [him], [had] been hit in the facе by girls, [had] been kicked, punched . . . .” He testified that when Hernandez stopped him and asked him about weapons, he forgot to mention the knife in his vest, but that it was not concealed. When Hernandez asked if there were other weapons in the truck, defendant mentioned the baseball bat as a “common courtesy.” He said that when he painted the bat and put holes in the handle, he was “just screwing around,” and that he put lightning bolt signs and drilled holes in the hammers in his toolbоx to identify them and help him get a better grip. The strap allowed him to walk with the bat hanging from his wrist. He said he had never hit anyone with the bat or pulled it out, but that it was a “security blanket,” and he wanted to have it available in case he was threatened during a repossession. He primarily used the bat to play with dogs. He also said he did not belong to any skinhead or Nazi organization. He testified that the billy club he had possessed in 1996 was a standard police nightstick. He admitted placing a false registration sticker on his truck.
II. DISCUSSION
A. Was the Bat a Billy?
Defendant contends the weapon in question, a modified baseball bat, does not qualify as a billy for purposes of section 12020, subdivision (a)(1). In pertinent part, section 12020, subdivision (a) prohibited possession of “any instrument or weapon of the kind commonly known as a blackjack, slung-shot, billy, sandclub, sap, or sandbag.” Defendant contends we should resolve this issue based on the meaning of the term “billy” in 1923, when an uncodified predecessor statute was enacted. (Stats. 1923, ch. 339, § 1, p. 696; People v. King (2006)
We are guided in our inquiry by the rules California courts have laid down since 1923 in construing this statute. Under California law, an object with innocent uses may fall within the terms of section 12020, subdivision (a)(1) if the prosecution proves “that the object was possessed as a weapon. The only way to meet that burden is by evidence ‘indicating] 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.’ ” (People v. Fannin (2001)
Our Supreme Court in People v. Grubb (1965)
Defendant contends this language in Grubb was dictum and hence not binding on us, because the court there had already concluded the defendant’s conviction must be reversed because of the erroneous admission of evidence. (Grubb, supra, 63 Cal.2d at pp. 615-618.) But the court’s conclusion that section 12020 included an object “ ‘of the kind commonly known as a billy’ ” was expressly described as its holding, and was immediately followed by the discussion, quoted above, explaining that a table leg or an altered bat could be considered a billy. (Grubb, supra,
We have examined both the record and the bat itself, and conclude that under the facts and the applicable law, the jury could reasonably find the bat was a billy for purposes of section 12020. Defendant is correct that the bat at issue in Grubb was described as a small bat; according to the opiniоn, it was 20 inches long. (Grubb, supra,
B. Instruction on Billy
The jury was instructed pursuant to CALCRIM No. 2500 as follows: “The defendant is charged in Count Two with unlawfully possessing a weapon, specifically a billy. To prove the defendant is guilty of this crime the People must prove that, one, the defendant possessed a billy; and, two, the defendant knew he possessed the billy; and, three, the defendant possessed the object as a weapon. [1] When deciding whether the defendant possessed the object as a weapon, consider all the surrounding circumstances relating to that question, including when and where the object was possessed, whether the object was changed from its standard form, and any other evidence that indicates whether the object would be used for a dangerous rather than a harmless purpose. . . .” This instruction does not define the term “billy.”
In a variant on the previous argument, defendant contends the trial court erred in not instructing the jury on the physical characteristics of a billy, and particularly in not instructing that a billy must be short or small. (Sеe People v. Blair (2005)
From this colloquy, it is clear that the trial court suggested using the word “short” in defining bоth “billy” and “bludgeon,” and that defense counsel rejected the suggestion and requested the unadorned CALCRIM instruction. Moreover, counsel may well have had a strategic reason to do so: in his closing argument, he suggested to the jury that a billy was a billy club of the type used by law enforcement—something the bat manifestly was not. A definition of a billy as a short stick or bludgeon might have dampened the force of this argument. In the circumstances, any error in not defining a billy as a shоrt or small object was invited. (See People v. Cooper (1991)
In any case, we find no error in instructing the jury pursuant to CALCRIM No. 2500 without adding a definition of a billy as a short or small object. Expert testimony may be admitted on the question of whether an object falls within the definition of a prohibited object. (People v. Deane (1968)
C. Second Amendment
Defendant contends that “if section 12020 subdivision (a)(1) is construed to prohibit his full-sized baseball bat as a wholly banned ‘billy,’ it would violate the Second Amendment under [District of Columbia v. Heller (2008)
The Attorney General contends defendant forfeited this issue by failing to raise it below. As defendant points out, he challenged his conviction on Second Amendment grounds below, in a motion for new trial. Even assuming
In Heller, the high court concluded that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms . . .” (District of Columbia v. Heller, supra,
We are not aware of any decision from a California court considering whether a ban on possession of a billy passes constitutional muster under Heller. The Attorney General argues that because a billy is not the sort of weapon “typically possessed by law-abiding citizens for lawful purposes,” it falls outside Second Amendment protections. This argument is supported by the California Supreme Court’s discussion in Grubb, which stated that in enacting section 12020, “[t]he Legislature obviously sought to condemn weapons common to the criminal’s arsenal; it meant as well ‘to outlaw instruments which are ordinarily used for criminal and unlawful purposes.’ [Citations.]” (Grubb, supra,
Defendant argues, however, that the modified bat at issue here was nothing but a long club, an instrument of the sort traditionally used by law-abiding citizens for lawful defensive purposes, and therefore defendant had a right to
In Kessler, the police found two billy clubs in the defendant’s home at the time of his arrest. The Oregon Constitution provides: “The people shall have the right to bear arms for the defence of themselves, and the State, but the Military shall be kept in strict subordination to the civil power.” (Or. Const., art. I, § 27; see Kessler, supra,
We need not determine whether the statute is unconstitutional to the extent it prohibits possession of certain weapons in the home. Here, defendant did not possess the modified bat in his home, but was carrying it in his car. The constitutional right to carry weapons outside the home was not addressed in Kessler nor, indeed, by Heller, which narrowly held that the District of Columbia’s ban on “possession [of lawful weapons] in the home violates the Second Amendment . . . .” (Heller, supra,
As we have explained, California courts have concluded that in enacting section 12020, the Legislature intended to outlaw instruments normally used for criminal purposes. (Grubb, supra,
In this day and age, as we are all painfully aware, it is often a gun—not a billy, sap, or blackjack—that is the weapon of choice in most violent crimes.
This conclusion disposes not only of defendant’s arguments that possession of a billy in general, or of the specific instrument in question in this case, could not be criminalized consistent with the Second Amendment, but also that the trial court erred in failing to instruct the jury on the legal principles of Heller and the Second Amendment. Since a billy falls outside the protection of the Second Amendment, the court had no obligation to instruct the jury on those princiрles.
D„ E.
The judgment is affirmed.
Ruvolo, P. J., and Reardon, J., concurred.
A petition for a rehearing was denied April 29, 2013, and respondent’s petition for review by the Supreme Court was denied July 17, 2013, S210601.
Notes
All undesignated statutory references are to the Penal Code. Effective January 1, 2012, section 12020 was repealed (Stats. 2010, eh. 711, § 4) and the pertinent portions were reenacted without substantive change in section 22210. For the sake of convenience, further references will be to the statute in effect at the time of defendаnt’s conviction, without the use of the term “former.”
Section 12020 provided in pertinent part: “(a) Any person in this state who does any of the following is punishable by imprisonment in a county jail not exceeding one year or in the state prison: [<¡[] (1) . . . [Possesses . . . any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sap, or sandbag, [f] . . . [ID [or] (4) Carries concealed upon his or her person any dirk or dagger.”
The Seventh Circuit Court of Appeаls recently held that the Second Amendment right to bear arms includes a right to carry a loaded gun outside the home. (Moore v. Madigan (7th Cir. 2012)
According to the FBI’s uniform crime repоrt, in 2009, 67.1 percent of homicides, 20.9 percent of aggravated assaults, and 42.6 percent of robberies were committed with guns. (<http://www2.fbi.gov/ucr/cius2009/offenses/violent_crime/index.html> [as of Mar. 28, 2013].)
Because we reach this conclusion, we need not apply constitutional “means-end” scrutiny that balances the objectives of the statute against the means used to accomplish those ends, or decide the proper level of constitutional scrutiny to apply if the weapon in question did fall within the protection of the Second Amendment. (People v. Delacey (2011)
See footnote, ante, page 1322.