Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. DL028446, Maureen Aplin, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) .
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Jennifer A. Jadovitz, and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Sills, P. J., Rylaarsdam, J., and O’Leary, J.
This appeal arises from a judgment in a proceeding under section 602 of the Welfare and Institutions Code. (Welf. & Inst. Code, § 800, subd. (a).) In count one it is alleged Richard F., a minor, committed misdemeanor vandalism. In count two it is alleged he was in possession of a weapon “of the kind commonly known as a hammer,” in violation of Penal Code section 12020, subdivision (a)(1). Count two, at the deputy district attorney’s request, was later amended to add after the word hammer “and or billy.”
Minor admitted count one. The juvenile court found true the allegation in count two that minor possessed a “billy” in violation of Penal Code section 12020, subdivision (a)(1). On appeal, as below, minor contends a hammer is not a billy and thus the possession of a hammer is not proscribed by that section. We agree. As a matter of law, an ordinary hammer is not a “billy” or other “instrument or weapon of the kind” enumerated in Penal Code section 12020, and thus the true finding as to count two must be reversed. (People v. Mayberry (2008) 160 Cal.App.4th 165.)
Although Mayberry was published before briefing started in this matter, neither party cited it. Accordingly, we asked the parties to submit supplemental letter briefs addressing its application.
I
The parties submitted to the court on the police report. The facts, according to the police report, indicate that minor is a member of a local tagging crew. One day, while riding the bus to the local high school campus, two rival gang members pounded on the bus window with a knife and threatened to “shank him” because he had defaced one of their gang signs. A few days later, while at school, one of minor’s friends told him he had overheard several people saying they were going over to the high school to beat up minor.
The next day, minor carried an ordinary, 12-inch hammer in his backpack to school. Someone on campus notified a school administrator. When confronted by school officials and a local police officer, minor admitted he had brought the hammer to school for protection from the gang members who had threatened him. He allowed the officer to open his backpack, and there the officer found the hammer.
Penal Code section 12020, subdivision (a)(1), prohibits any person from, among other things, possessing “any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sap, or sandbag.” Here, the petition alleged minor possessed “a hammer and or billy” in violation of the statute. Minor argued that the possession of an ordinary hammer is not prohibited by this section. The juvenile court disagreed. It suggested the items listed in the statute were merely descriptive of the kinds of weapons which are prohibited and found true the allegation in count two because minor had admitted the hammer was to be used in self-defense; it was thus a prohibited “billy” under section 12020 of the Penal Code.
II
Whether the hammer is a prohibited weapon under Penal Code section 12020, subdivision (a)(1) is a question of law because there is no dispute as to its descriptive characteristics. (People v. Mayberry, supra, 160 Cal.App.4th at p. 169, fn. 5.) It is, as the parties acknowledge, an ordinary hammer, one that any carpenter, shop student, or do-it-yourself homeowner might use for a project. Moreover, as the deputy district attorney conceded, it “has not been modified in any way.”
The prosecutor argued below, and the Attorney General echoes on appeal, that the hammer is a “deadly weapon,” and thus a proscribed “billy,” because minor admitted he intended to use it for self defense. In support of his position, the Attorney General quotes dicta from People v. Grubb (1965) 63 Cal.2d 614, that the legislative purpose of Penal Code section 12020 is “to outlaw the classic instruments of violence and their homemade equivalents; the Legislature sought likewise to outlaw possession of the sometimes-useful object when the attendant circumstances, including 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.) In Grubb, a broken baseball bat taped at the smaller end was found, in its altered state, to be a billy. (Id. at p. 621, fn. 8 [“bat has been so altered from its original condition that it falls into” the category of a billy prohibited by section 12020].) The point, of course, is that the broken bat was a billy not because of any professed intent of the possessor but because it had been altered into one; in short, it was no longer a baseball bat. (See People v. Mayberry, supra, 160 Cal.App.4th at p. 171, fn. 9.)
The Attorney General maintains, however, that under Grubb any object normally lawful to possess becomes unlawful under Penal Code section 12020, subdivision (a)(1) if the prosecutor can prove the possessor intended to use it for a dangerous or illegal purpose. The problem with that position is that it flips the analysis on its head by improperly using the intent of the possessor to define the characteristics of the object. (People v. Mayberry, supra, 160 Cal.App.4th at pp. 169-170.) Such an argument would allow any unmodified, common object to be defined not by its descriptive characteristics but by how someone says he or she might use it some time in the future. This “characteristic,” based on intent, could conceivably vary from legal to illegal and back to legal again depending on whether, and when, the possessor had the requisite intent. Minor correctly notes that under the Attorney General’s approach, a musician could be convicted under this section for the possession of a French horn if the musician admitted the horn would be used in self defense if attacked.
In Mayberry, the defendant struck the victim in the face while wearing a standard workout glove purchased at a local drug store. The defendant was charged with possession of a “weighted glove” in violation of Penal Code section 12020 because there is a little sand in the palm area that gives the glove some added weight. The prosecutor argued that possession of the glove violated section 12020 because possession of a “sandclub” or “sandbag” is prohibited under this section and the defendant knew it was a weighted glove and had “‘possessed the object as a weapon.’” (People v. Mayberry, supra, 160 Cal.App.4th at p. 168.)
Relying on the express language of the statute, the defendant contended the characteristics of a standard workout glove are not “of the kind commonly known as” a sandclub or a sandbag. The Attorney General there wisely conceded. In holding that possession of a standard workout glove is not a prohibited weapon under Penal Code section 12020, Mayberry explained that section 12020 “does not define the prohibited items by the means of their use. It defines them as they are ‘commonly known,’ such that it is the descriptive characteristics of the item that make it dangerous. It is the purpose of the law to bar the possession or carrying of an instrument that is customarily viewed as a dangerous weapon.” (Id. at pp. 169-170.) The court then explained: “[T]he use of a prohibited weapon may bear on the defendant’s scienter. That is, the circumstances of the defendant’s possession or use of an item can defease a defendant’s criminal liability for possession of an item that is a ‘prohibited weapon’ but cannot alter its descriptive characteristics.” (Id. at p. 171.) In short, Mayberry teaches that a possessor’s intended use of an object does not define its descriptive characteristics.
Policemen used to carry billys; these were heavy, cylindrical wooden sticks that were designed and used to strike people. (They now carry metal batons.) A billy or billyclub is commonly defined as a heavy, wooden weapon designed to give blows. (Webster’s 3d New Internat. Dict. (1981) p. 216.) It is clear why the Supreme Court in Grubb concluded that a broken baseball bat taped at one end constituted a prohibited billy. It is equally clear, however, why an ordinary, unaltered hammer is not a billy under section 12020. It simply does not have the descriptive characteristics of a billy or billyclub. Thus, the mere possession of an ordinary hammer is not a violation of that section, and the juvenile court’s true finding on the allegations in count two must therefore be reversed.
III
Minor does not contest the true finding as to count one. Accordingly, count one is affirmed but the true finding as to count two is reversed.