*1 drafting promissory notes, Incorporated, such as the practice of law. constituted suspended ordered that O. Clark be from the It is Oliver period years, commencing for a practice of law three filing opinion. days of this after the application rehearing Petitioner’s was denied Jan- uary 12, 1966. In No. 8166. Bank. Dec.
[Crim.
1965.]
PEOPLE,
Respondent,
THE
Plaintiff and
JOHN WILSON
Appellant.
GRUBB, Defendant and
*2
Perrett,
appointment by
Supreme
Michael
F.
Court, for
Appellant.
Defendant and
Stanley
Lynch, Attorneys General,
Mosk and Thomas C.
James,
Attorney
William E.
General,
Assistant
Woodruff J.
Deem,
Attorney,
Osborne,
District
Edwin M.
Chief Criminal
Deputy
Attorney,
Laing, Deputy
District
and Edwin L.
Dis
Attorney,
Respondent.
trict
Plaintiff and
TOBRINER,
A jury
J.
found that defendant,
in violation
Penal
12020, possessed
Code section
weapon
aof
kind
commonly
billy;
known as a
the court
judgment
entered a
provides,
conviction. Section 12020
in part, as
“Any
follows:
person in
State
who manufactures or causes to be manu-
factured,
imports
State, keeps
into the
sale,
or offers or
exposes
sale,
or
gives, lends,
possesses
who
or
any instru-
or
commonly
the kind
known as a blackjack,
slungshot, billy, sandclub, sandbag,
shotgun,
sawed-off
or
guilty
felony.
...
metal knuckles
is
...”
concluding
out our
although
reasons for
gave
police
pos-
to the
about his
statements which defendant
billy
should not have been admitted
use
session and
prejudicial error,1 defendant’s
and their admission caused
find that
other
cannot be sustained. We
chief contentions
illegal entry
billy by
means of
officers did
discover
12020 does not fail
car; we hold that section
into defendant’s
vagueness.
for unconstitutional
County
March
two Ventura
p.m.,
About 10:30
dis-
deputy
upon a 1955 Pontiac convertible
came
sheriffs
wrong
road, and
playing
parked
side of the
lights,
no
on the
traveled
protruding
angle
2 or 3
into the main
at an
some
feet
position
portion
highway.
Because the
two-lane
investigate.
stopped
hazard, the
car created a traffic
officers
unsigned
ex-
note
On
the officers found an
the windshield
diffi-
plaining
mechanical
had encountered
the driver
;
date
car. The note bore no
culties and would
for the
return
determine
could not
because of its moist condition the officers
car, had been so abandoned.
long
note,
indeed the
how
of the vehicle
looked into the window
One of
officers
steering
slip
on the
registration
either
and could not detect a
column,
place. He then
visible
the sun visor or on
other
officer, after
slip; the other
to look for the
entered the car
checking
license number was
headquarters to see
with
*3
looking
joined him in the ear. While
car,
of wanted
that
a
The
bat.
slip
small baseball
for the
the officers discovered
bat;
broken from the
handle had been
few inches of the
last
the instrument
or
long, taped at the smaller
was 20 inches
After this
unaltered end.2
end,
at the
handle
and heavier
nearby service station.
proceeded to -a
discovery the officers
upon interrogation, identi-
they
who,
There
found defendant
Defendant, however,
the driver of the car.
fied himself as
in Escobedo hearing
that the decisions
1At
oí this
we noted
oral
ease
U.S,
977],
and
12 L.Ed.2d
Illinois
478
S.Ct.
v. Dorado
361],
Cal.Rptr.
398 P.2d
raised
338 [42
Cal.2d
propriety
statements to
of the admission of defendant’s
an issue as to the
the time of
police
at
these
had
been decided
the
officers. Since
cases
argu
case,
presented
permitted
oral
trial
the
to be
the
and
authorities.
written submission of
testimony
light
2The
throws no
on whether the
the various witnesses
originally
placed
tape
portion
or
on
was
of the bat as
manufactured
was
prosecution
it
the
after the bat had been broken. The
introduced
evidence;
tape
type,
it is
before' us. The
is of the same
and in
into
now
ordinarily
point
any
bat;
ap
position,
it
it
the same
as would
be on
baseball
pears
torn
the bat
have been
at the
where
was broken. In order
large
additional,
short,
keep
piece
unravelling,
piece
the
but
evidently
piece
tape
tape
has been added to
torn end. Neither
ex
portion
tends
covers the broken
into or
the wood.
any
“billy” being in
knowledge of
baseball bat or
denied
him
then
defendant and took
the car. The officers
arrested
the station.
McCarty
day,
next
March
Detectives
The
County
interrogated
Murphy
at the
and
sheriff’s
defendant
Ventura
During
interrogation
period
office.
bat, that
told the
that he owned the broken
he had
officers
possessed
approximately
years,
it
had carried
two
that he
self-defense,
in
and that he had
it in other automobiles for use
people
two
struck
with it on at least
occasions.
interrogation
found the
The
occurred after the officershad
him.
in
had arrested
bat
defendant’s car
after
officers
opinion
in
at the trial
their
The officers testified
that
“billy.”
questioning
place at the
bat
took
broken
was
it;
office; two officers conducted
one of
officers
sheriff’s
lengthy,”
was rather
testified “the conversation
tape.
it on
These circumstances demonstrate
officersrecorded
engaged
process
interrogation
in a
officers were
eliciting incriminating
(People
statements.
that lent itself to
Cal.Rptr. 201, 400
v. Stewart
Cal.2d
stage
accusatory or
had
97].) Consequently,
critical
(Id. at
to counsel.
reached; defendant was entitled
been
p.
577.)
prior making
his state-
record does not indicate that
rights to
been advised of his
counsel
ments, defendant had
waived those
he had otherwise
and to remain silent
rights.
a waiver we must hold that
In the absence of such
stage,
during
accusatory
statements, rendered
defendant’s
(People
Stewart, supra, 62
improperly admitted.
were
supra,
338.)
571;
Dorado,
Cal.2d
defendant’s statements constituted
Whether or not
(1965) 62
v. Schader
requiring reversal
confession
People v.
Cal.Rptr. 193,
665];
401 P.2d
Cal.2d
clearly
338, 356), the utterances
Dorado, supra, 62 Cal.2d
(People Watson
prejudicial error.
caused
Fahy
U.S.
Connecticut
he
171].) Defendant admitted
229, 11 L.Ed.2d
S.Ct.
approximately
possessed it
he
he had
bat;
said
owned
use
other automobiles
years;
it
his
he carried
two
*4
two
on at least
people with it
struck
self-defense; he had
set
“billy.” These statements
occasions;
called the bat
he
otherwise
broken bat
very elements
convert
forth
pro
the kind of instrument
into
purposes
peaceful
usable
defining out in
point
As
shall
statute.
we
scribed
statutory coverage,
it precisely into
description
defendant’s
placed
of the
statutory design.
The statements were
accordingly pointedly prejudicial.
alleged
police
As to defendant’s claim of an
unlawful
entry
recognized
vehicle,
out that we have
invariably
every
that officers need not
and under
circum
(People
stance
obtain search warrant to enter an automobile.
Terry (1964)
137,
Cal.Rptr.
605,
v.
P.2d
upheld
381].)
entry
a warrant if
have
without
“compelling
exceptional
justify
reasons and
circumstances’’
Cal.Rptr.
575,
it.
531,
v. Burke
67];
394 P.2d
see McDonald v. United States
Although
191,
451, 454
93 L.Ed.
U.S.
S.Ct.
justification
usually
without a
lies in
search
warrant
(Preston
relationship
and
to a lawful arrest
its incidence
881,
States
S.Ct.
11 L.Ed.2d
United
376 U.S.
People Burke, supra), here we find the warrantless
extraordinary
exceptional circum
entry
sustained
and
(See
(9th
1965)
United States
Cir.
Hernandez v.
stances.
(No.
1965).)
19654,
29,
619 People (1960) Cal.Rptr. 263]; v. Anushevitz 183 Cal. 74 [32 Cal.Rptr. People (1960) App.2d 752, ; v. Galceran 785] Cal.App.2d Cal.Rptr. 901]; v. 312, 178 316 cf. Caldwell [2 (8th 385, 387.) 338 F.2d 1964) United States Cir. give exceptions to of “the to the The instant facts rise one must be had before constitutional rule that a search warrant (People Burke, supra, a search v. 61 Cal.2d made.” requirement under circumstances such as 575, 579.) A highway they these the officersmust car on the while leave the protect to obtain search warrant abort their efforts would safety highways. (Mardis Superior Court, supra, 218 v. 73.)6 Cal.App.2d 70, Finally, accept we cannot defendant’s of assertion unconstitutionality 12020 Penal Code section I, 13, article of the California and the Constitution Fourteenth Amendment to the Section 12020 condemns the States United Constitution. possession “of an instrument or ” commonly billy. Challeng kind known as a . . . ing “billy” unconstitutionally the term as vague, defendant litigant becomes upheld issue; the first to raise this other courts have possession billys (e.g., People convictions for v. (1936) Cal.App.2d Canales 12 289]; 215 P.2d v. [55 Mulherin Cal.App. 174]). 140 212 P.2d As we [35 explain, statutory language shall of can withstand the assault infirmity. constitutional “ recognize, apply here, and orthodox test. [A] doing statute requires which either of an forbids act in vague intelligence terms so of common men must nec essarily guess meaning application at its differ as its process (Connolly violates the first essential of of law.” due 385, General Constr. Co. 126, 391 U.S. S.Ct. [46 ; In 786, 70 L.Ed. see re Newbern 53 Cal.2d 322] Cal.Rptr. 364, People McCaughan (1957) 116]; 350 P.2d 409, 974].) complains Defendant that under that the statute test intelligence must fail a man of common cannot because know prohibition sweeping coverage. he violates its view its “billy” encompasses The contention runs that the term such ordinary objects bat, leg, anas orthodox baseball a table or a piece though objects lumber; find even these their most entry automobile, objects only 6As initial into Ms scope do might not here prop delineate the of the search that the officers erly . . such . . a situation. conduct acceptable traditionally way, all peaceful and common use in a weapons physical violence.7 of them could be used as ' light enactment, however, in We must construe the Cregler legislative design purpose. (In re Cal.Rptr. 363 P.2d King Supp. Cal.App.2d weapons Legislature obviously sought to common condemn “to arsenal; the criminal’s it meant outlaw instru- as well ordinarily used for criminal and unlawful ments which are purposes.” Canales, supra, Cal.App.2d People Mulherin, supra, 140 Cal. 217; effect, the same App. 215.) Legislature’s concern understandable *6 dangerous objects to the promiscuous possession with the of public of lives members of finds manifestation in section the very Easy may to well 12020. access instruments of violence must, possible, increase the risk of violence. Hence we designed the constitutionality of a sustain the statute objects subject salutary checldng possession of purpose of the dangerous use. ' gain by ref content and definition terms statute People purpose. v. Indeed, as we said in erence be McCaughan, supra, 414, “A statute will reasonably by upheld may made certain refer if its terms be legislative history purpose.” to . The. ence . . its sought Legislature of here to outlaw the classic instruments Legislature the equivalents; their homemade violence and sought possession of the sometimes-useful likewise outlaw including object circumstances, time, the when the attendant object possessor, place, of the alteration the .destination facts; form, indicated from and other relevant standard object dangerous, harm possessor for a not the would use the objects possession 7The of whose California convictions have been clearly likely appears alone criminal use the character of , Cal.App.2d length Anushevitz, supra, v. 183 752 of [12-inch hose weighted taped]; (1957) People Hood 149 836 Cal.App.2d [309 v. billy Cal.App.2d club]; People Canales, supra, v. 12 P.2d [14-inch 135] club, taped, piece end; 215 with nails driven one also 18-inch [14-inch into ; (1934) People Cal.App. wood] Quinones 638] of 140 609 [35 2 supra, Cal.App. ; People Mulherin, 21 metal 140 [homemade [56 knuckles] strung together] ; People Ferguson one-inch metal washers knuckles]; Cal.App. People 741] 300 v. Williams [metal long, Cal.App. [flat P. steel wrench 6 inches 1040] grasping]). strap People with attachable leather In v. Golden “monkey’s fist,” Cal.App.2d 32], 76 an other that a [174 P.2d court held m object sailors, used was not outlawed the statute. Cases fro 220 jurisdictions (Peoples. McPherson N.Y. 123. N.E. Visarities (1927) 220.App. Div. 515] [222 N.YS. 401] ) in are little conflict and therefore offer assistance. (Cf. less, purpose.8 Cal.App. Freeman P. hold that embraces instruments other Thus we the statute specially pur- than those created or manufactured for criminal objects poses ; includes “of the com- specifically it those kind monly billy.” (Pen. Code, 12020; added.) known as a italics § danger may proclaim concomitant circumstances well Legislature of even innocent-appearing utensil. The thus possession ordinarily criminal ob- decrees as harmless jects possession an demonstrate when the circumstances atmosphere danger. Accordingly the statute immediate encompass possession leg, an would in one sense table obviously item, useful it detached from the table when is night “tough” neighborhood carried at in a to the scene penalize the a riot. hand the not On the other section would game. Leaguer Little at bat a baseball Applying this case, to the instant we find test bat, taped baseball the smaller possession the altered at car, end, about in the end, at the unbroken carried heavier clearly “billy,” transported for the obviously as a not usable purpose baseball, playing violates the statute. suspicious recognize presence of circumstances object forge proscribed possession does attendant against able to dem ironclad defendant. He case falls usage of but the burden an innocent onstrate supra, illus- upon Cregler, In re him to do so.9 *7 People in v. defining to term that "billy” 8We a the similar test adopt Raleigh The there con court P.2d 752], 128 Cal.App. "dangerous in Penal Code as used term or deadly weapon,” strued the dangerous ordinary their in instruments to 211a, encompass, first, section dangerous not in their instruments circumstances, use in some and, second, been altered the bat has so Possibly instant baseball ordinary use. category: original it would then the that it falls into first its condition cannot rest In that billy. be as a classic ease ordinarily used challenge the constitutionality of to the fact situations upon hypothetical Equalization (Franklin Board Ins. Co. v. State statute. of Life People Buese ante, v. P.2d 869, [45 Cal.Rptr. pp. Ferguson, 102]; People 805 [34 Cal.Rptr. 220 Cal.App.2d supra, 304.) 129 Cal.App. the to an intent of use possessor need not show the 9The prosecution (People McKinney 9 Cal. in a violent manner. instrument 827].) may the on other A defendant, hand, App.2d justify under circum found suspicious of an instrument his possession ordinary in its it with his intent to use accordance of by proof stances supra, People Ferguson, Although design. legitimate Cal.App. jury to state the consider defendant’s to permit court refused 300, the dangerous for a and not as curio the "metal knuckles” ment that he kept distinguished; not "metal knuckles’’ are may that case be purposes, for ordinarily peaceful purposes. usable the use of and intended has in issue his planned put Once defendant point: trates the (former there a statute Code, Pen. § 4) subd. made it person unlawful for a specified classifica- “having tion no visible support” or lawful means of to public “loiter” at places. named Upon challenge that the word “loiter” was unconstitutionally vague, we limited its meaning in statutory accordance with purpose, holding the it “obviously lingering designated connotes places the purpose the committing opportunity may crime as be dis- (P. 312.) covered.” recognized But we a limitation of the application of saying the statute, “Manifestly goes one who to a bus depot station or railroad purpose waits for the buying ticket, boarding conveyance, meeting the a rela- actually tive expected or friend arrive, to or with other legitimate objective, loitering is not within sense of the the (P. 312.) present statute.” In the case defendant has offered showing no correlative usage proscribed innocent in- the peaceful strument. Conceived for purposes, wrapped it was in the indicia and probable circumstance of assault. judgment is reversed.
Traynor, J., Peters, J., C. Peek, J., concurred. Accepting the SCHAUER, J.,* Dissenting. facts and law adjudged by as majority the I would affirm judgment of conviction. majority “Applying hold: theretofore [the de- case, test the instant possession we find fined] taped bat, altered baseball at the end, smaller heavier at the end, unbroken carried about in car, obviously usable as a clearly ‘billy,’ transported not purpose of playing baseball, violates the statute. recognize “We presence suspicious circum- possession proscribed object stances attendant does forge against may an ironclad case defendant. He usage able to demonstrate innocent but the upon him burden falls to do so.” tending negate pos instrument introduce evidence sibility by peaceful showing, instance, oí a use utilization of the past. (Cf. Raleigh instrument in the as a Cal.App.2d 435, note, however, in the instant prosecution prior support ease introduced evidence arrest violation of Penal Code 12020. An a con arrest not followed past offense; viction does not itself tend to show a the evidence should 137, 149.) Terry, supra, have been excluded. sitting assign Supreme *Retired Associate Justice of the Court the Chairman of the Judicial Council. *8 against prima is facie Clearly, the case this were matters of record by the circumstances which established or Although circum- eyes officers. those manifest to of the forge against defendant” “not an ironclad case stances did least raise on him “to demonstrate at the burden was [or object.” usage of the doubt as innocent reasonable to] nothing by defendant, adduced or other I find whatsoever reasonably record, support which could a not wise justify concluding our guilty or, appeal, verdict on justice. miscarriage guilty verdict works Defendant against him; simply overcome the basic ease nor does did not any (or majority opinion) he evidence which guilt. justifies as a doubt to his His fabricated within reason exculpatory story whereby sought negate knowing (not he withstanding billy manifestly actual) possession of the was story more to moral implausible. Such tends accentuate indubitably cognizance guilt than weaken the inferences undisputed corporeal following factors which are guilt. overcome, demonstrate In these cir which, unless and cumstances I do how this court can find—(cid:127) not understand majority error—that “it declare technical is reason even appealing favorable to the ably probable that a result more reached in the absence of the error.” party have been would (People Watson finding unequivocally are for Absent such an affirmative YI, Constitution, article California bidden 4½1 grant Accordingly, judgment a new trial. or aside” the “set judgment. I affirm the would McComb, concurred. J., rehearing January petition was denied for a Respondent’s McComb, J., participate therein. Mosk, J., did not 12, 1966. peti opinion J.,* that the Schauer, of the Burke, J., were granted.
tion should be 1'' aside, granted, judgment or new trial shall be set No Section 4½. jury, improper ground any ease, or of the mis-direction on the any any rejection evidence, as to matter of or for error or admission any unless, procedure, after an pleading, as to matter error evidence, cause, including the court shall be of the entire examination miscarriage complained opinion of has resulted in a error ’’ justice. assign- sitting Supreme Court Justice of Associate *Retired of the Judicial Council. the Chairman