Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo, Barry T. LaBarbera, Judge, Super. Ct. No. F375130
Mark Brown, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Joseph P. Lee, Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.
PERREN, J.
William Ray Davis appeals his convictions for possession of a billy club and possession of a short-barreled shotgun. (Pen. Code, § 12020, subd. (a)(1).) He claims instructional error and insufficient evidence to support either conviction. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTS AND PROCEDURAL HISTORY
During a search of Davis's home pursuant to a search warrant, police found unassembled parts of a short-barreled shotgun, a small baseball bat modified into a billy club, and narcotics paraphernalia such as baggies, scales and smoking pipes commonly used for methamphetamine. The parts of the shotgun included sawed-off barrels, a wooden grip modified for the barrels, brackets for attaching the barrels to the grip, tools to complete the assembly work, and loaded shotgun shells. The police did not find a trigger but residue called "fouling" in the barrels indicated that the weapon had been fired. The baseball bat had been hollowed out, filled with lead or another metal to add weight, and taped at one end. The police found the bat attached to Davis's motorcycle, spray painted to match the color of the motorcycle.
Davis was charged with possession of a billy club and a short-barreled shotgun, as well as possession of a smoking pipe (Health & Saf. Code, § 11364), possession of methamphetamine (Health & Saf. Code, § 11377), and possession of two rifles while subject to a protective order (§ 12021, subd. (g)(2)). Davis pleaded guilty to the rifle possession charges and a jury convicted him of possession of the billy club, short-barreled shotgun, and smoking pipe. When the jury could not reach a verdict on possession of methamphetamine, that charge was dismissed. (§ 1385.) Davis was placed on 5 years probation, subject to serving 270 days in county jail. His appeal concerns only the offenses of possessing a billy club and short-barreled shotgun.
DISCUSSION
No Instructional Error
1. Instruction Defining Short-Barreled Shotgun
Davis contends the trial court failed to adequately instruct the jury regarding the definition of a short-barreled shotgun. Section 12020, subdivision (c)(1) defines a short-barreled shotgun to include component parts if the parts can be "readily restored" or "readily assembled." Davis argues that the court had a sua sponte duty to clarify and amplify the meaning of the word "readily" in the phrases "readily restored" or "readily assembled." We disagree.
Section 12020, subdivision (a)(1) prohibits the possession of a variety of weapons, including several unusual and sophisticated weapons with mysterious names. (People v. King (2006) 38 Cal.4th 617, 621.) Among the prohibited weapons is a "short-barreled shotgun" which is defined generally to be a firearm made from a shotgun with a barrel length of less than 18 inches or an overall length of less than 26 inches. (§ 12020, subd. (c)(1)(A) – (C).) A short-barreled shotgun also includes "[a]ny device which may be readily restored to fire a fixed shotgun shell which, when so restored," falls within the other definitions of a short-barreled shotgun, and "[a]ny part, or combination of parts, designed and intended to convert a device" into a short-barreled shotgun, or from which a short-barreled shotgun "can be readily assembled . . . ." (§ 12020, subd. (c)(1)(D) & (E), italics added.)
Section 12020, subdivision (c)(1) provides in its entirety: "As used in this section, a 'short-barreled shotgun' means any of the following: [¶] (A) A firearm which is designed or redesigned to fire a fixed shotgun shell and having a barrel or barrels of less than 18 inches in length. [¶] (B) A firearm which has an overall length of less than 26 inches and which is designed or redesigned to fire a fixed shotgun shell. [¶] (C) Any weapon made from a shotgun (whether by alteration, modification, or otherwise) if that weapon, as modified, has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length. [¶] (D) Any device which may be readily restored to fire a fixed shotgun shell which, when so restored, is a device defined in subparagraphs (A) to (C), inclusive. [¶] (E) Any part, or combination of parts, designed and intended to convert a device into a device defined in subparagraphs (A) to (C), inclusive, or any combination of parts from which a device defined in subparagraphs (A) to (C), inclusive, can be readily assembled if those parts are in the possession or under the control of the same person."
Following this statutory language, the trial court instructed the jury that a short-barreled shotgun included a device of the required size "which may be readily restored to fire a fixed shotgun shell," or "any combination of parts from which a device known as a short barreled shotgun can be readily assembled . . . ." During deliberations, the jury asked the court to "interpret" the word "readily" used in the instruction, and the court responded that the word "is to be used with its common meaning." Davis argues that the phrases "readily restored" and "readily assembled" have a technical meaning as used in section 12020, subdivision (c)(1), that required further definition by the court in the jury instruction.
The portion of the instruction defining a short-barreled shotgun provided in its entirety: "A short-barreled shotgun means any of the following: [¶] (1) Any weapon made from a shotgun (whether by alteration, modification, or otherwise) if that weapon, as modified, has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length. [¶] (2) Any device which may be readily restored to fire a fixed shotgun shell which, when so restored, is a device known as a short barreled shotgun, inclusive. [¶] (3) Any part, or combination of parts, designed and intended to convert a device known as a shotgun (short barreled), inclusive, or any combination of parts from which a device known as a short barreled shotgun can be readily assembled if those parts are in the possession or under the control of the same person."
As a general rule, the language of a statute defining a crime is an appropriate and desirable basis for an instruction. "If the jury would have no difficulty in understanding the statute without guidance, the court need do no more than instruct in statutory language." (People v. Poggi (1988) 45 Cal.3d 306, 327.) The court has a duty to provide clarifying instructions only when a statutory word or phrase has a technical or legal meaning that is different from its commonly understood meaning. (People v. Rodriguez (2002) 28 Cal.4th 543, 546-547; People v. Estrada (1995) 11 Cal.4th 568, 574-575.)
The word "readily" is commonly understood to mean "without much difficulty" or "easily." (See Merriam-Webster's Collegiate Dict. (10th ed. 1999) p. 972.) The word "restore" means "to put or bring back into existence or use" or "into a former or original state" (id., at pp. 998-999), and the word "assemble" means "to bring together" or "to fit together the parts of." (Id., at p. 69.) We discern no other meaning of these words in section 12020, subdivision (c)(1). The words are not used in a technical sense, and there is no basis to conclude that the jury would have difficulty in understanding the words without further guidance. We acknowledge that the jury expressly asked the court to "interpret" the word "readily," but there was no error in finding its common meaning to be sufficient even if the jury was having difficulty in resolving the evidentiary issue.
Moreover, at trial, defense counsel addressed the evidence rather than the jury instruction by questioning whether it was possible to assemble parts that did not include a trigger into a short-barreled shotgun at all. He did not object to the word "readily" or the phrases "readily restored" and "readily assembled" in the instruction.
2. Instruction that Billy Club Must be Possessed as a Weapon
Davis also contends that the trial court erred by failing to instruct the jury that the prosecution must prove the billy club was "possessed as a weapon." Davis relies on the case of People v. Fannin (2001) 91 Cal.App.4th 1399, 1404, where the court concluded that, when an object has both innocent and unlawful uses, the prosecution must prove that the object was "possessed as a weapon." We conclude that the trial court properly instructed the jury.
Section 12020, subdivision (a) covers possession of certain objects with innocent uses. In particular, a "billy" is a club that resembles "ordinary objects [such] as an orthodox baseball bat, a table leg, or a piece of lumber." (People v. Grubb (1965) 63 Cal.2d 614, 619-620, fn. omitted.) When a device can be either a weapon or a harmless object, possession constitutes a crime under section 12020, subdivision (a) only when "the time, place, destination of the possessor, the alteration of the object from standard form, and other relevant facts indicated that the possessor would use the object for a dangerous, not harmless, purpose." (Id., at pp. 620-621, fn. omitted.) The court in Fannin followed Grubb by concluding that, when an object has an innocent use, the prosecution must prove that the object was "possessed as a weapon," and could meet its burden with evidence that "'. . . the possessor would use the object for a dangerous, not harmless, purpose.'" (People v. Fannin, supra, 91 Cal.App.4th at p. 1404.)
The trial court defined a "billy" as a wooden club possessed with the intent set forth in another instruction. That other instruction provided that "[a] deadly or dangerous weapon is any weapon, instrument or object that is capable of being used to inflict death or great bodily injury, and it can be inferred from the evidence, including the attendant circumstances, the time, place, destination of the possessor, the alteration, if any, of the object from its standard form, and any other relevant facts, that the possessor intended on that or those occasions to use it as a weapon should the circumstances require. . . ." (CALJIC No. 12.42 (1998 rev.) italics added.)
Although the "possessed as a weapon" language from Fannin is not used, the instruction required the jury to make that finding in order to reach a guilty verdict. An instruction requiring the jury to find that the possessor "intended" to use the device as a weapon "should the circumstances require" is substantively indistinguishable from requiring the jury to find that the possessor "possessed [the object] as a weapon." No reasonable juror could have concluded that Davis intended to use the object as a weapon if circumstances required without also concluding that he possessed it as a weapon.
3. Use of CALJIC Instructions Generally
The court instructed the jury with CALJIC instructions, not the CALCRIM instructions which became "the official instructions for use" in criminal trials on January 1, 2006. (Cal. Rules of Court, rule 2.1050(a), formerly rule 855.) Davis contends that use of CALJIC instructions was error because his trial began on January 3, 2006, after the implementation date for the CALCRIM instructions. Although we agree that the CALCRIM instructions should be used as set forth in the California Rules of Court, use of CALJIC instructions in this case was not legal error, and did not prejudice Davis.
Use of standard form instructions is "strongly encouraged" but not required, and adoption of the CALCRIM instructions does not render the CALJIC instructions retroactively incorrect. (Cal. Rules of Court, rule 2.1050(e).) "The articulation and interpretation of California law . . . remains within the purview of the Legislature and the courts of review." (Id., rule 2.1050(b); see People v. Morales (2001) 25 Cal.4th 34, 48, fn. 7.)
Here, Davis did not object to the use of CALJIC instructions in the trial court, or remind the court of the January 1, 2006, implementation date. Defense counsel stated that he originally planned to ask the court to use the CALCRIM instructions, but ultimately decided not to "proffer" those instructions. Failure to object in the trial court does not waive a defendant's right to challenge a jury instruction that affects his "substantial rights," but Davis does not contend that use of CALJIC instructions affected his substantial rights. (See § 1259; see, e.g., People v. Flood (1998) 18 Cal.4th 470, 506-507.) Except as discussed below, Davis merely cites the calendar, and argues that the court missed the date for changeover to CALCRIM instructions—by one court day.
Davis does argue that the CALCRIM instruction covering section 12020, subdivision (a) is clearer and different from the CALJIC counterpart, but we fail to see any significant or prejudicial difference under the circumstances of this case. Davis does not claim any difference between the CALCRIM and CALJIC instructions regarding sufficiency of the terms "readily restored" and "readily assembled." In fact, the bench notes to CALCRIM No. 2500 state that the court should "insert the appropriate definition of the alleged weapon from Penal Code section 12020(c)." That is what the trial court did in this case.
Regarding the billy club, Davis notes that CALCRIM No. 2500 states that the prosecution must prove that the defendant "possessed . . . the object as a weapon." But, as we have concluded, the trial court's instruction in this case satisfied the substantive requirements of Grubb and Fannin without using the phrase "possessed as a weapon."
Substantial Evidence Supports Convictions
1. Standard of Review
In considering a sufficiency of evidence claim, we "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Snow (2003) 30 Cal.4th 43, 66; People v. Hughes (2002) 27 Cal.4th 287, 370.) We accord the judgment all reasonable inferences, and will not reweigh or resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
2. Possession of Billy Club
Davis contends the evidence is insufficient to support his conviction for possession of a billy club because the circumstances do not establish beyond a reasonable doubt that he possessed the billy club as a weapon or would use the object as a weapon if circumstances required. We disagree.
As previously stated, the prosecution has the burden of proving that Davis possessed the object as a weapon and contemplated using it as a weapon if circumstances required. (People v. Grubb, supra, 63 Cal.2d at pp. 620-621; People v. Fannin, supra, 91 Cal.App.4th at pp. 1404-1405.) The prosecution may meet that burden with circumstantial evidence, and the defendant may present evidence that he possessed the object innocently, for the purposes served by its legitimate design instead of those proscribed by section 12020. (Fannin, at p. 1406.)
Here, there is substantial evidence to support the verdict. The object was a small baseball bat that had been hollowed out and filled with lead or some other metal. A police officer testified that the insertion of additional weight indicated that it "would be [used] for the purpose of inflicting serious injury on someone . . . ." When seen by the police, the bat was attached to Davis's motorcycle and easily accessible to a rider while riding the motorcycle. The bat was also concealed by having been painted the same color as the motorcycle. From this evidence, a jury could reasonably conclude beyond a reasonable doubt that the object was possessed as a weapon and would be used as a weapon.
Davis does not contend that he used or intended to use the object as a baseball bat. Davis testified that he modified the bat to use it as a "tire thumper" to check the air pressure in his motorcycle tires. Two police detectives testified there is a tool called a "tire thumper" that can be made of wood and weighted with another substance. One of the detectives testified that it is used to "hit a tire to hear resonance to determine whether . . . a tire is inflated or deflated," but also testified that the tool is used only on large truck tires, not motorcycle tires.
It is the function of the jury to weigh conflicting evidence and assess the credibility of witnesses. A reasonable juror could have rejected the testimony by Davis as not credible, either standing alone or in conjunction with the testimony by the police detectives.
3. Possession of Short-Barreled Shotgun
Davis also contends there is insufficient evidence to support his conviction for possession of a short-barreled shotgun. He argues that, because the police did not find a trigger, the components found in his home could not have been readily assembled into something that qualifies as a weapon. (§ 12020, subd. (c)(1)(D)-(E).) Again, we disagree.
The police assembled the parts found in Davis's home at the scene and at trial, and concluded that the object was a "sawed-off shotgun." Although the barrels did not fit snugly into the mounting bracket on one side of the modified wooden grip, the left side of the assembly "fit[]," and "grooved indentations" on the right side were "near completion," and "in the process of being an operational weapon." At trial, the detective was able to hold the assembled weapon in the air, despite the poor fit on the right side. In addition, there were shotgun shells in Davis's bedroom which were of the same gauge as the barrels, and the barrels contained residue or "fouling" that indicated that shells had been discharged through the barrels.
The jury could conclude beyond a reasonable doubt that Davis possessed component parts that could be "readily assembled" into a weapon that otherwise qualified as a short-barreled shotgun based on the modifications of the barrels and grip, the time likely required to make the weapon operational, and the availability of any missing parts.
Indisputably, the weapon was not assembled or ready for immediate firing, but the statute does not require the weapon to be assembled, operable or ready for immediate use. (People v. Favalora (1974) 42 Cal.App.3d 988, 991, 993-995; People v. Guyette (1964) 231 Cal.App.2d 460, 467.) A disassembled or broken weapon qualifies as a weapon if it can be readily assembled, restored, or repaired through the addition of a readily available part, made operable with reasonable preparation, including the addition of a readily replaceable part such as a firing pin. (Favalora, at pp. 993-995; Guyette, at p. 467.)
Davis argues that the parts did not constitute a "firearm" or a "shotgun" under other sections of the Penal Code (see § 12001, subds. (b) & (c)), because those weapons require a trigger and the police did not find a trigger in his home. These statutes are inapposite. A "short-barreled shotgun" is a separate and unique weapon that is separately and expressly defined in section 12020, subdivision (c)(1). There is no requirement that it satisfy other definitions of a "firearm" or "shotgun." As one court has stated, other statutes may concern guns which will shoot, but section 12020 prohibits objects which look like guns. (People v. Favalora, supra, 42 Cal.App.3d at p. 993.)
Davis also argues that, apart from operability, the weapon in this case does not even give the appearance of a shooting capability. We agree that the statute does not require the device to be operable in part because the fear engendered in the victim may be as great where the weapon reasonably appears to be operable even if it is not. (See People v. Favalora, supra, 42 Cal.App.3d at p. 995; see also People v. Stinson (1970) 8 Cal.App.3d 497, 501.) But, there is no such appearance requirement in section 12020, subdivision (c)(1) which clearly provides that a pile of parts may qualify as a short-barreled shotgun. In any event, the evidence does not support his assertion that the parts found in his home as assembled by the police did not give the appearance of a shooting capability. Evidence shows that a police officer was able to hold a partially assembled weapon in his hand and point two sawed-off shotgun barrels at a potential victim.
The judgment is affirmed.
We concur: YEGAN, Acting P.J., COFFEE, J.