Opinion
F040363.
7-21-2003
J. W. HARROTT, Plaintiff and Appellant, v. COUNTY OF KINGS et al., Defendants and Respondents.
John S. Dulcich for Plaintiff and Appellant. Denis A. Eymil, County Counsel, and William James Murphy, Deputy County Counsel, for Defendants and Respondents.
In this appeal we revisit a case we first reviewed in 1996. The issue now, as it was in the prior appeal, is whether a particular rifle is an "assault weapon" within the meaning of the Roberti-Roos Assault Weapons Control Act of 1989 (AWCA or the Act), which restricts or prohibits the distribution and possession of such weapons. (Pen. Code, § 12275 et seq.)
Unless noted otherwise, all further statutory citations refer to the Penal Code.
We will affirm the trial courts judgment finding the rifle to be an assault weapon proscribed by the Act.
BACKGROUND
The Kings County Sheriffs Department (KCSD or the Sheriff) seized the rifle and some other weapons from Gail and Marilyn Hamilton in 1990 in the course of a criminal investigation. Sometime later, the Hamiltons transferred ownership of the weapons, then still in the Sheriffs possession, to Attorney J. W. Harrott in payment for legal services he had provided to them. Harrott thereupon filed a claim with the KCSD seeking release of the weapons to him. The Sheriff refused to turn over the rifle because, he asserted, it was an assault weapon proscribed by the AWCA.
In 1994, Harrott petitioned the superior court for a writ of mandate directing the KCSD to give him the rifle. Following a hearing at which both parties presented expert witness testimony, the court concluded the rifle, although not one of the "AK" models specifically listed in the AWCA, was similar enough to be considered part of the "AK series" of rifles covered by the Act. It therefore denied Harrotts petition.
Although it apparently went unnoticed at the time, Harrotts petition for writ of mandate identified the rifle as an "AK-47 2822." The "AK47" is one of the AK models specifically listed in the AWCA. ( § 12276, subd. (a)(1)(A).) However, both experts at the hearing opined the rifle was a "Clayco" which, while very similar to an AK47, was not an assault weapon within the meaning of the Act because it lacked "manufacturers markings" identifying it as such. According to the Attorney General, "Clayco" is not a manufacturer but an importer of firearms made by Norinco, a Chinese manufacturer of AK-series assault weapons.
We reversed the trial courts order after concluding the court lacked jurisdiction to make that determination. (Harrott v. County of Kings (June 18, 1996, F023079) [nonpub. opn.].) As we explain below, we held the process can only be initiated by the Attorney General, and only then in counties having a population of more than one million (which Kings County does not have). Kings County (the County) petitioned for review.
The California Supreme Court granted review, but then held the case pending its decision in another related case challenging the constitutionality of the AWCA. This latter decision came some four years later. In Kasler v. Lockyer (2000) 23 Cal.4th 472 (Kasler), the court rejected claims that the AWCA violates equal protection principles because it is irrationally underinclusive (id. at pp. 478-491); that it violates the separation of powers doctrine insofar as it delegates to the courts the power to determine whether an unlisted firearm is an assault weapon (id. at pp. 491-498); and that it violates due process because it is unduly vague as to whether a firearm is or is not an assault weapon (id . at pp. 498-502).
The due process challenge was directed at the so-called "add-on provisions" found in section 12276.5 of the Act. This section permits a superior court (in a county having a population of more than one million), upon a petition by the Attorney General, to declare a firearm to be an "assault weapon," i.e., to add the firearm to the statutory list of assault weapons in section 12276, if the firearm is identical to a listed weapon "except for slight modifications or enhancements" or if it is a listed weapon that has been only "redesigned, renamed, or renumbered." (§ 12276, subds. (a)(1) and (a)(2)). These terms, so the argument went, are too vague to give an ordinary citizen a reasonable way to determine whether a given firearm is covered by the Act.
The Supreme Court noted, however, that the add-on provisions do not require an ordinary citizen to interpret or apply these terms. Rather, that is the role of the Attorney General in deciding whether to petition the superior court to add a firearm to the list of assault weapons, and then the role of the court in deciding whether to grant the petition. Moreover, section 12276.5 requires the Attorney General to publish in the California Code of Regulations a list of firearms expressly designated assault weapons in section 12276, and to amend the list as necessary to include those declared to be assault weapons under the add-on provisions. ( § 12276.5, subd. (h).) Therefore, the court concluded, "concerned citizens need not struggle with the question whether, for example, a particular firearm is identical to one of the listed assault weapons except for slight modifications. The citizens may simply consult the amended list." (Kasler, supra, 23 Cal.4th at p. 499.)
Section 12276.5 also requires the Attorney General to "prepare a description for identification purposes, including a picture or diagram, of each assault weapon listed in Section 12276, and any firearm declared to be an assault weapon pursuant to this section, and ... [to] distribute the description to all law enforcement agencies responsible for enforcement of this chapter...." ( § 12276.5, subd. (g).)
Accordingly, the Attorney General produced what is called the "Assault Weapons Identification Guide" (the Identification Guide or the Guide).
This due process discussion in Kasler, in turn, touched on some of the issues we had addressed in our earlier decision in this case (which was then still pending review). We had been concerned there with the following definitional language in section 12276. (We have added indentation to make the hierarchy of the section more clear.)
"As used in this chapter, assault weapon shall mean the following designated semiautomatic firearms:
"(a) All of the following specified rifles:
"(1) All AK series including, but not limited to, the models identified as follows:
"(A) Made in China AK, AKM, AKS, AK47, AK47S, 56, 56S, 84S, and 86S.
"(B) Norinco 56, 56S, 84S, and 86S.
"(C) Poly Technologies AKS and AK47.
"(D) MAADI AK47 and ARM.
"(2) ... [P] ...
"(5) Colt AR-15 series. [P] ...
"(b) All the following specified pistols: [P] ...
"(c) All the following specified shotguns: [P] ...
"(d) Any firearm declared by the court pursuant to Section 12276.5 [the add-on provisions] to be an assault weapon that is specified as an assault weapon in a list promulgated pursuant to Section 12276.5.
"(e) The term series includes all other models that are only variations, with minor differences, of those models listed in subdivision (a), regardless of the manufacturer.
"(f) This section is declaratory of existing law, as amended, and a clarification of the law and the Legislatures intent which bansthe weapons enumerated in this section, the weapons included in the list promulgated by the Attorney General pursuant to Section 12276.5, and any other models which are only variations of those weapons with minor differences, regardless of the manufacturer. The Legislature has defined assault weapons as the types, series, and models listed in this section because it was the most effective way to identify and restrict a specific class of semiautomatic weapons." (Italics added.)
Thus, the AWCA recognizes two general categories of assault weapons: those specifically identified in the statute ( § 12276, subds. (a)-(c)), and those declared to be assault weapons under the add-on provisions ( § 12276, subd. (d)). However, within the list of AK-type rifles ( § 12276, subd. (a)(1)), in addition to the ones identified by name, there is a generic subset of AK "series" weapons identified only as being similar to the named ones but with "minor differences, ... regardless of the manufacturer." ( § 12276, subds. (e) and (f).) The listed weapons also include the "Colt AR-15 series." (§ 12276, subd. (a)(5).)
Section 12276, as originally enacted, represented a political compromise between those in the Legislature who preferred to identify proscribed assault weapons in a list by their name and manufacturer (the list approach), and those who preferred to define them generically according to their features (the generic definition approach). Thus, the Act utilized the list approach, but also included the add-on provisions in recognition of the fact that the list was not, and could not be, complete. (See Kasler, supra, 23 Cal.4th at pp. 482-488 [reviewing the history of the ACWA in holding the Act does not violate equal protection principles even though it applies to some assault weapons and not to others]. See also In re Jorge M. (2000) 23 Cal.4th 866, 873-884 (Jorge M.) [recognizing the difficulty of distinguishing listed from nonlisted assault weapons in construing the criminal provisions of the AWCA to include a knowledge element]; Harrott v. County of Kings (2001) 25 Cal.4th 1138, 1145-1147 (Harrott) [acknowledging the limitations of the list approach in holding that a trial court lacks authority to declare a rifle an AK series assault weapon].)
In 1999, the Legislature amended the ACWA by adding section 12276.1, which adopts the generic definition approach to identifying assault weapons. (Stats. 1999, ch. 129, § 7.) The new section complements rather than supplants the list of assault weapons contained in section 12276.
The question in the first appeal, essentially, was this: What entity, the superior court or the Attorney General, is empowered under the AWCA to determine whether a particular AK-like rifle is or should be included within the AK series, i.e., whether the differences between the subject rifle and a listed one are only "minor"? We concluded, as a matter of both statutory construction and due process, that an unlisted weapon may be categorized as an AK series rifle only by way of the add-on provisions, i.e., upon a petition by the Attorney General to the superior court (of a county having a population of more than one million). The use of this procedure will mean the "series" weapon is listed in the California Code of Regulations, and in the Attorney Generals Identification Guide, which in turn will provide public notice of what weapons are subject to the AWCA. A concerned citizen need only "consult the amended list." (Kasler, supra, 23 Cal.4th at p. 499.
Section 12276 does not attempt to define what are "minor" differences. But the add-on provisions, which apply, inter alia, to weapons that are identical to a listed weapon except for "slight modifications or enhancements," include within that term: "a folding or retractable stock; adjustable sight; case deflector for left-handed shooters; shorter barrel; wooden, plastic or metal stock; larger magazine size; different caliber provided that the caliber exceeds .22 rimfire; or bayonet mount." ( § 12276.5, subd. (a)(1).) The section goes on to state: "The court shall strictly construe this paragraph so that a firearm which is merely similar in appearance but not a prototype or copy cannot be found to be within the meaning of this paragraph." (Ibid.)
Indeed, the Attorney General amended the Identification Guide in December of 2000, in response to Kasler. The amended guide divided assault weapons into three categories. Category 1 weapons are the rifles, pistols, and shotguns specifically listed in section 12276, subdivision (a) through (c), plus those included by way of the add-on provisions (there were no add-on weapons in December of 2000). Category 2 weapons are the AK and AR-15 "series" rifles determined by the Attorney General to be like a listed rifle except for only "minor" differences. Category 3 weapons are those identified by their general characteristics, pursuant to enactment of section 12276 of January 2000.
We note that the Attorney General did not utilize the add-on provisions to create the category 2 list of AK and AR-15 series weapons. According to the Identification Guide, the list was created in response to the Supreme Courts decision in Kasler. But, as we have explained, Kasler involved the constitutionality of the add-on provisions, not the procedure for identifying AK and AR-15 series weapons. That procedure was the subject of our earlier decision in this case, which was still on review when the guide was issued. (See Harrott, supra, 25 Cal.4th at pp. 1148-1149 [the issue of the Attorney Generals authority under section 12276, subdivision (e) to identify AK and AR-15 series weapons was left undecided in Kasler].)
In July of 2000, a month after Kasler, the Supreme Court issued another opinion dealing with the AWCA. In In re Jorge M., supra, 23 Cal.4th 866, a minor was adjudicated a ward of the juvenile court in part because he was found to have been in possession of an assault weapon in violation of section 12280, subdivision (b). The question before the court was whether, in the absence of any mens rea language in the statute, the law nonetheless requires proof a person charged with a section 12280 firearm violation knew the firearm was an assault weapon as defined in the Act. The court held that either actual knowledge or the "negligent failure to know" of the weapons "salient characteristics" is sufficient to support a conviction. That is, "the People must prove ... that a defendant charged with possessing an unregistered assault weaponknew or reasonably should have known the characteristics of the weapon bringing it within the registration requirements of the ACWA." (Jorge M., supra, 23 Cal.4th at pp. 869-870, 887.)
In reaching this conclusion, the court observed that ACWA-listed assault weapons are not necessarily identifiable as such just by their general appearance, at least not to an untrained eye. Some relatively benign-looking firearms are proscribed by the Act, while some that appear fairly menacing are not. (Jorge M ., supra, 23 Cal.4th at pp. 882-883.) Nor is it always possible to distinguish listed from nonlisted weapons simply by reference to the Attorney Generals Identification Guide. The guide identifies assault weapons primarily by their manufacturers markings, which may vary from gun to gun. (Id . at p. 884.) "Consequently, although most firearms listed in section 12276 are likely to be readily identifiable, some instances in which the possessor of a semiautomatic firearm could reasonably be in doubt as to whether the weapon is subject to regulation under the AWCA are also likely." (Jorge M ., supra, 23 Cal.4th at p. 884.)
The minor in Jorge M. was charged with possession of an "SKS with detachable magazine." ( § 12276, subd. (a)(11).) The rifle in question had "Russia SKS-45" printed or engraved on it, and a police officer testified the magazine was detachable. This evidence was sufficient, the Supreme Court found, to establish that the minor knew or should have known the rifle was a banned assault weapon. (Jorge. M., supra, 23 Cal.4th at p. 888.)
One other significant thing happened while review was pending in this case. At the Supreme Courts request, the Attorney General filed an amicus brief addressing the impact, if any, of the courts decisions in Kasler and Jorge M. The Attorney General argued that Kasler in particular was inapposite for two reasons. First, he maintained, the identification of AK and AR-15 "series" weapons is not subject to the formal add-on provisions of the Act (which provisions were the subject of Kasler), and the Identification Guide had by then been amended to include series weapons (in category 2). (See fn. 6.) Second, and more pertinent to this appeal, the Attorney General asserted (for the first time) that the rifle in this case is a Chinese-made AK. He claimed, in other words, that Harrotts rifle is not a "series" weapon at all but one of those specifically listed in section 12276, subdivision (a)(1)(A).
In support of this claim, the Attorney General attached a declaration by Ignatius Chinn, a special agent supervisor in the firearms division of the California Department of Justice. Chinn stated he had examined the rifle, and talked to the former chief executive officer of the company that had imported it from China, and had concluded on this basis that the rifle is a Chinese-made AKS. An AKS, according to Chinn, is an AK-47 with a "stamped metal receiver."
The Supreme Court issued its decision in this case in June of 2001. It agreed with our conclusion that a trial court may not find a semiautomatic rifle to be an AK or AR-15 series assault weapon under section 12276, subdivision (e) unless the rifle first appears in the list of such weapons the Attorney General is required by section 12276.5, subdivision (h) to produce for publication in the California Code of Regulations. (Harrott , supra, 25 Cal.4th at pp. 1149, 1151, 1154, 1155.) This interpretation of the statute, the court said, avoids the constitutional problem of vagueness. A concerned citizen wanting to know whether a particular semiautomatic rifle is a "series" assault weapon under the AWCA need only consult the Code of Regulations, or the Attorney Generals Identification Guide. (Id. at p. 1153.)
The court disagreed, however, that the "series" list need be generated through the judicial add-on proceedings mandated by section 12276.5, subdivision (a).
"There is an apparent tension between the authority conferred upon the Attorney General by section 12276.5, subdivision (a)-the power to initiate a judicial proceeding to add assault weapons to the list of such weapons in section 12276, and the authority conferred upon the Attorney General by section 12276, subdivision (e)-the power, in the absence of a judicial proceeding, to identify and promulgate a list of the firearms considered to be series assault weapons. The tension, however, is only apparent, and we uphold the Attorney Generals authority." (Harrott, supra, 25 Cal.4th at p. 1149, fn. omitted.)
In the meantime, as we have noted, the Attorney General had effectively complied with the courts decision in Kasler by creating administratively a list of AK and AR-15 series weapons, which list appears as category 2 in the 2000 Identification Guide.
The Supreme Court therefore affirmed the judgment of this court (reversing the judgment of the trial court). However, it then went on to say:
"Our conclusion that the trial court exceeded its authority in declaring Mr. Harrotts rifle an AK series weapon under section 12276, subdivisions (a)(1)(A) and (e) does not end the matter... The Attorney General now asserts the rifle is an AK47, one of the assault weapons specifically listed in section 12276, subdivision (a)(1)(A), and in his petition for writ of mandate, Mr. Harrott did describe the rifle as an AK-47 2822. Therefore, the case should be remanded to the trial court for a resolution of this question." (Harrott, supra, 25 Cal.4th at p. 1155.)
The Proceedings on Remand
On November 21, 2001, a hearing was held in the Kings County Superior Court to resolve the question posed by the Supreme Court: Is Harrotts rifle a "Made in China AK, AKM, AKS, AK47, AK47S, 56, 56S, 84S, [or] 86S" assault weapon? ( § 12276, subd. (a)(1)(A).) Or, using the classification system adopted by the Attorney General in the 2000 Identification Guide, is it a category 1 assault weapon?
The parties each presented the testimony of a weapons expert, neither of whom had testified at the first hearing. The Countys expert was Ignatius Chinn, the supervisor for the Department of Justice whose declaration the Attorney General had submitted to the Supreme Court in support of his claim the rifle is a Chinese-made AKS. Harrotts expert witness was Richard Catalani, a firearms examiner who had worked until recently for the Los Angeles County Sheriffs crime lab.
The Countys Expert
Chinns testimony was essentially an elaboration on his declaration. He identified the rifle as a Chinese-made AKS. An AKS, he explained, is an AK-47 with a "stamped receiver." Receivers can be either stamped from sheet steel, as this one was, or milled from a piece of steel called a "billet." Milled receivers are distinguishable from stamped receivers by the milling marks on the side. AK-47 rifles with milled receivers usually are called AKMs, although the M might also stand for "Modern." The designation used is largely up to the manufacturer.
A "receiver" is "the metal frame in which the action of a firearm is fitted and to which the breech end of the barrel is attached." (Harrott, supra, 25 Cal.4th at p. 1147, fn. 6, quoting from Websters 3d Internat. Dict. (1965) at p. 1894.)
Chinn testified that Chinese-made AK-47s are also sometimes identified, instead of by an "AK" designation, by one of the numbers listed in section 12276, subdivision (a)(1)(A), i.e., "56, 56S, 84S, [or] 86S," depending upon the caliber. Harrotts rifle, he said, is a "type 56 model in [caliber] 7.62 by 39" under that identification convention. Chinn denied, however, that all AK-type weapons are, by definition, Soviet— or Russian-made.
According to Chinn, an AK-type rifle is distinguishable from other assault weapons by its design and dimensions generally, and more particularly by the receiver, the "internal rails," "gas port holes," "gas piston, bolt carrier, bolt trigger, hammer, the spring, which is very indicative of the AK, its a wire wrap; the magazine well, and the magazine latch." Chinn pointed out the example photograph of a generic AK rifle in the Identification Guide. Underneath it, the following comment appears: "The firearm pictured represents the general appearance of the AK series; however, these firearms may be found in various configurations."
For example, Harrotts AK series rifle has a bayonet, whereas the one pictured in the Identification Guide does not. "Some came with them [bayonets]," Chinn said, and "some came without."
Chinese-made AK-type assault weapons, Chinn said, often are not marked with any sort of "AK" stamp or designation on the weapon itself. Harrotts rifle, for example, does not have "AKS" written or stamped on it anywhere. Nor do the Chinese weapons say anywhere on them "Made in China." However, some features are characteristic of the Chinese-made weapons, such as the use of "perforation holes on the gas exchange chamber" and the configuration of the bayonet.
The "AK-47" designation derives from its Soviet inventor, Mikhail Kalashnikov, who first conceived the design for an automatic ("avtomata") assault rifle in 1947, hence the name AK-47: "Avtomata Kalashnikova" 1947 model. The AK-47 rifle, as refined and modified since then, has been produced in several former Eastern bloc counties, as well as the former Soviet Union. In the 1950s, Chinn explained, the Soviets established some AK-47 manufacturing plants in China. Some years later, the Chinese established 13 of their own such plants. Different plants, depending upon where they are in China, are run by different branches of the government.
"Q. [by William Murphy representing the County]. Can you explain why there would be minor differences in the production of these weapons in China?
"A. [by Ignatius Chinn]. Each production company is run by people who control the areas[.] North China Industries [Norinco] is controlled by the government of China, Poly Tech technologies is controlled by the army, [unrecorded] is controlled by the police, and their dimensions are basically set by the units that manufacture and design these weapons internally at the plants.
"Q. So there are no uniform standards; is that what youre saying?
"A. No, and theres almost 150 smaller plants throughout China that manufacture small parts and deliver[] them to these larger plants for the production of small arms. Not only these weapons, but military weapons."
Sometimes, but not always, there is a number ending in "6" stamped inside a circle or triangle on the rifles "trunnion" indicating the region where the rifle was made. There is no such number on Harrotts rifle.
Moreover, with the exception sometimes of Poly Technologies and Norinco (see § 12276, subds. (a)(1)(B) & (a)(1)(C)), the Chinese manufacturers typically do not put their names on weapons they export to the United States. "The manufacturers," Quinn said, "could arrange with the importer to stamp whatever they [the importer] wanted on them." That is precisely what happened in the case of Harrotts rifle, according to Chinn.
Thus, the "Made in China AK ..." rifles ( § 12276, subd. (a)(1)(A)) are, in some cases, an exception to the usual rule that assault weapons are identifiable primarily by their markings. The 2000 Identification Guide, in the introduction to the category 1 weapons, states in part:
"Except as otherwise noted, firearms described in this publication have been physically identified as assault weapons by their markings. Those markings generally, but not always, include both the name or trademark of the manufacturer and the model name or number of the firearm. Each description includes identification markings and an indication of where those markings, if any, are found on the firearm.
"Caution must be used in identifying Roberti-Roos assault weapons because of the ease in which their appearance may be altered with attachment or different types of stocks; however, removing a characteristic does not change a firearms status as an assault weapon. A firearm specified in Penal Code section 12276 by make and model but which does not match the picture included in this publication is a controlled assault weapon...."
Harrotts rifle has the following letters stamped on the left side of the receiver, just above the pistol grip: "GSAD MANH. BEA. CA." Chinn testified these letters stand for "Golden State Arms Distributors, Manhattan Beach, California" (Golden State). He had therefore contacted the former chief executive officer of the company, Ed Faust, who told him Golden State imported these weapons — AK-47s with stamped steel receivers — from a plant in Jing Anh, in southern China, during the period from 1984 through 1988. The letters identifying Golden State as the distributor, along with a four-digit serial number (in this case "2822") on the "trunnion," were stamped at the factory in China.
Faust, along with Chinn, was on the commission that produced the list of AK "series" weapons appearing in the 2000 Identification Guide under category 2.
Faust also told Chinn that Harrotts rifle is not a "Clayco," contrary to what the Countys expert had testified at the first hearing. Clayco, Chinn explained, was not a manufacturer but an importer of Chinese-made AK-type weapons, in competition with Golden State. All such weapons Clayco imported were made by Norinco, and so each had a number stamped on it indicating the factory where it was made; a six-digit serial number; and the words "Clayco Clay Sports Kansas City." Harrotts rifle has none of these markings.
Harrotts Expert
Richard Catalani testified that, in his opinion, Harrotts rifle is not an AKS because it lacks several characteristics of that type of weapon. First of all, he said, the "AK" designation and its variations refer only to Soviet or Russian-made weapons; the Chinese-made equivalents are designated by a number, e.g., "56" or "84." There is, in other words, no such thing as a "Made in China AK ...." Second, according to Catalani, an AKS, by definition, has a folding metal butt stock; Harrotts rifle has a wooden butt that does not fold. And third, an AKS does not have a bayonet; Harrotts rifle does have one.
Moreover, Catalani disputed the essential premise of Chinns identification, i.e., that a stamped steel receiver distinguishes an AKS from other AK-type rifles. The AKM designation, Catalani asserted, refers to an AK-type weapon that has been "modified or modernized" by replacing the milled receiver with a stamped receiver. In short, Chinns opinion that Harrotts rifle is an AKS was, in Catalanis view, "dead wrong."
Finally, and most importantly, Catalani expressed his opinion that Harrotts rifle is "definitely not" a category 1 assault weapon because there are no markings identifying it as such stamped on the side of the rifle; because it does not say, for example, "Made in China AKS," or something equivalent. However, Catalani did say the rifle, in the absence of those markings, is "likely" to be an AK "series" assault weapon in category 2 of the Identification Guide. Specifically, he opined the rifle is a "Chinese made Type 56 dash 5" made by Norinco, albeit lacking any of the markings usually found on a Norinco identifying both the manufacturer and the number of the factory where it was produced.
"Made in China" 56 and 56S, and Norinco 56 and 56S semiautomatic rifles are specifically listed in section 12276, subdivisions (a)(1)(A) and (a)(1)(B) respectively, and so are category 1 assault weapons. "Type 56 dash 5" rifles are not listed in the statute nor in the Identification Guide under category 2, although category 2 does include all Norinco "AK-47" rifles.
As we have noted (see fn. 10), the Identification Guide recognizes that some category 1 weapons do not have the characteristic markings or features described in the guide, but they are proscribed assault weapons nonetheless. When this was called to Catalanis attention, he conceded he had relied on other sources for his opinion, and that "my identification of this firearm is not based upon this identification guide."
Chinn testified in rebuttal that Harrotts rifle is not a Norinco "56 dash 5" because there is no such model number; because, so far as he is aware, all Norinco-made rifles are stamped with the company name and factory number; and because Golden State imported weapons from a province in China not controlled by North China Industries.
The Trial Courts Decision
The trial court concluded as a preliminary manner that it was the Countys burden to prove Harrotts rifle is an assault weapon as proscribed by section 12276, subdivision (a)(1)(A), rather than Harrotts burden to prove the contrary. The court then concluded the County had met that burden. Its written order, filed on January 8, 2002, stated in part:
"The task before this court on remand is a finite one; I am directed to determine based upon the evidence presented in this court whether the subject weapon is one of the assault weapons specifically listed in Penal Code section 12276, subdivision (a)(1)(A). That subsection refers to Made in China AK, AKM, AKS, AK47, AK47S, 56, 56S, 84S, and 86S rifles. It appears clear that the subject weapon was made in China. Whether it is an AK47 or an AKS ... is less than clear, largely because the expert witnesses who have testified in this case are not in agreement [about] what those terms mean. A preponderance of the evidence indicates that they do not refer to a manufacturer or to a brand name or to a model number or designation unique to any particular manufacturer. Rather, based upon the evidence in this case, an AK47 appears to be a model or type of rifle which possesses certain characteristics, which, with two exceptions, the experts in this case do not dispute.
"Mr. Kayajanian [Harrotts expert at the first hearing] and Mr. Catalani appear to believe that to be an AK47 a weapon must have been made in Russia or the former Soviet Union. This cannot be the definition the legislature had in mind because it took pains to specifically outlaw Made in China AK47 rifles. Mr. Catalani appears to believe a rifle is not an AK47 unless the markings AK47 are stamped on its side. The court finds more credible Mr. Chinns opinion that the presence of such markings are not dispositive of the nature of the weapon.
"The court finds that a preponderance of the evidence indicates the subject weapon is an AK47 made in China and is therefore an assault weapon specifically described in Penal Code section 12276 subsection (a)(1)(A)... Accordingly the petition for writ of mandate is denied." (Fn. omitted.)
A judgment was thereafter entered on February 22, 2002 decreeing, among other things, that: "The weapon listed in the petition as an AK-47 2822, is an assault weapon specifically listed and prohibited under section 12276 (a)(1)(A) of the Penal Code."
It is worth noting here that Harrotts identification of his rifle as an "AK47 2822" in his petition for writ of mandate arguably amounts to a judicial admission or waiver of proof of that fact. (See 4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 413, pp. 510-511.)
DISCUSSION
Harrott makes essentially the same arguments in this appeal as he did in the first one. Most of these arguments have been resolved in the interim by the Supreme Courts decisions in Kasler, Jorge M., and Harrott.
Harrotts main contention is that a Chinese-made AK-type semiautomatic rifle is not a "Made in China AK ..." within the meaning of section 12276, subdivision (a)(1)(A) unless words or markings to that effect are actually stamped on the gun itself. He does not dispute the trial courts factual findings that his rifle was made in China, and that it is an AK-type semiautomatic weapon. Nor does he challenge Chinns testimony that some Chinese-made AK-type rifles imported into the United States have no manufacturer or factory markings on them. Therefore, his claim seems to be that the AWCA, as a matter either of statutory construction or constitutional due process, requires that illegal assault weapons must be unambiguously marked as such.
In support of this claim, Harrott simply asserts that the Supreme Court in Harrott and Jorge M. "recognized that markings and identification in the Attorney Generals Guide are the criteria in determining whether a rifle is a banned assault weapon." This assertion is incorrect insofar as it is meant to say that a firearms markings are the only criteria that may be used to make this determination.
The question in Harrott was this:
"whether the superior court had the authority to declare Mr. Harrotts rifle an AK series assault weapon under section 12276, subdivisions (a)(1)(A) and (e) when it had not been identified as such in the Identification Guide published by the Attorney General pursuant to section 12276.5, subdivision (g), and had not been included in the list of assault weapons promulgated by the Attorney General pursuant to section 12276.5, subdivision (h)." (Harrott, supra, 25 Cal.4th at pp. 1143-1144, italics added.)
The courts answer, as we have explained, was "no," based largely on due process considerations requiring that concerned citizens be given an effective way to determine whether a particular firearm is an AK "series" rifle proscribed by the AWCA. This must be provided, the court said, by a list of AK series weapons promulgated by the Attorney General. But the list may be promulgated administratively, and need not follow the more formal judicial procedures required by the AWCAs add-on provisions. (Harrott , supra, 25 Cal.4th at p. 1149.)
The portion of the decision cited here by Harrott refers to the difficulty an ordinary citizen otherwise might have in identifying AK series assault weapons.
"Two points made in our discussion in Jorge M. bear significantly on the question before us now: (1) In order to determine whether a firearm is an assault weapon under the AWCA, an ordinary citizen will have to rely heavily on the markings listed in the Identification Guide; and (2) even after consulting the Identification Guide, the ordinary citizen may still not be able to determine whether the firearm is considered an assault weapon. We observe that section 12276 lists weapons primarily by manufacturer and model. "Accordingly, the identification markings are the most important factor in determining if a particular firearm is an assault weapon within the meaning of section 12276. (Identification Guide, supra, Foreword.) Yet the Identification Guide also suggests markings may vary from gun to gun ...." Consequently, although most firearms listed in section 12276 are likely to be readily identifiable, some instances in which the possessor of a semiautomatic firearm could reasonably be in doubt as to whether the weapon is subject to regulation under the AWCA are also likely. (Jorge M., supra, 23 Cal.4th at p. 884.)" (Harrott, supra, 25 Cal.4th at p. 1146.)
Notwithstanding its recognition that identification of an assault weapon sometimes may be difficult, the courts solution — requiring the Attorney General to publish a list of AK series weapons — was held to be sufficient to overcome a constitutional due process challenge. (Harrott, supra, 25 Cal.4th at pp. 1153-1154.)
The question now before us, of course, is not whether Harrotts rifle is an AK series weapon but whether it is "one of the assault weapons specifically listed in section 12276, subdivision (a)(1)(A)," i.e., an AK47. (Harrott, supra, 25 Cal.4th at p. 1155.) The problem in answering this question, as the trial court recognized, stems from the fact that an AK47, like the other rifles listed in that subdivision, is not a specific weapon but rather a type of weapon sharing certain common features, but having others that can vary somewhat within that type. Moreover, the AK-type weapons listed in the subdivision are listed there, rather than in subdivision (a)(1)(B), (C), or (D), for the very reason, it seems, that they are not identifiable by their manufacturer or model number.
We bring this up not wishing to reopen the debate about AK series weapons (see Harrott, supra, 25 Cal.4th at p. 1156 (dis. opn. of George, C.J.)), but to suggest that the Legislature could not have intended to mandate the use of manufacturers marking to identify assault weapons that, almost by definition, have no manufacturers markings. We therefore reject Harrotts contention to the contrary.
We also reject Harrotts constitutional objections, if that is indeed what they are. He seems to be arguing that section 12276, if it does not require manufacturers markings to identify the weapons listed in subdivision (a)(1)(A), is unconstitutionally vague. This same sort of argument was rejected by the Supreme Court in Kasler with respect to the add-on provisions in section 12276.5, and in Harrott with respect to the designation of series weapons under section 12276, subdivision (e). The same reasoning applies here.
Harrott seems also to argue section 12276, subdivision (a)(1) is unconstitutionally underinclusive, or at least inconsistent, because a Norinco AKS is not listed in the Identification Guide in either category 1 or category 2, even though it is made in China. But this, of course, makes it a "Made in China" AKS listed in category 1, but without the manufacturers name. In any case, a similar equal protection argument was considered and rejected in Kasler.
This leaves us only to decide whether the evidence is sufficient to sustain the trial courts finding Harrotts rifle is a Chinese-made AK47. Like the court, we find Chinns testimony persuasive. His opinion was based not only on the rifles features but also on its markings identifying the importer as Golden State. The importer (Faust), in turn, told Chinn the rifle was an AK47 Golden State had imported from China. To this we add that Harrott himself had identified the rifle as an AK47 in his writ petition, and that his expert (Catalani) based his opinion the rifle is not an AK47 mainly on two premises that have been effectively refuted: AK-type semiautomatic rifles were made only in former Soviet bloc countries, and they were stamped with some sort of designation identifying them as AK-type weapons.
DISPOSITION
The judgment is affirmed. Costs are awarded to respondents.
We concur: Dibiaso, Acting P.J., Gomes, J.