Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC814932
Premo, J.
A jury convicted defendant Paul Roger Casey of assault with a firearm (count 1), making criminal threats (count 2), possession of a weapon--slungshot (count 3), possession of a weapon--billy club (count 4), and possession of ammunition by a prohibited person (count 4). It also found true sentence-enhancement allegations as to counts 1 and 2 that defendant had personally used a firearm. And the trial court found true a sentence-enhancement allegation that defendant had served a prior prison term. The trial court sentenced defendant to 10 years in prison, which included a three-year term plus four-year enhancement for count 1 and a concurrent two-year term plus four-year enhancement for count 2. On appeal, defendant contends that (1) no substantial evidence supports the conviction for count 3, (2) the trial court erred when instructing the jury as to counts 3 and 4, and (3) the concurrent sentence for count 2 constitutes improper multiple punishment (Pen. Code, § 654 [prohibiting multiple punishments for a single act or course of conduct]). We agree only with defendant’s multiple-punishment claim. We therefore modify and affirm the judgment.
BACKGROUND
Defendant stopped his vehicle on a street behind two men who were walking toward a residence. He exited his car and confronted Michael Stemple in a loud, threatening, and aggressive manner by asking what Stemple was looking at, whether Stemple had a problem, and whether Stemple knew “Ben.” He then told Stemple to “watch his back.” He further asked whether Stemple knew “Dominique.” When Stemple answered affirmatively, “[defendant] popped the trunk and got the shotgun and put it in front of [Stemple] and asked [Stemple] if [he] wanted to die, and told [Stemple] to tell Ben.”
When sheriff’s officers searched defendant’s residence, they found, among other things, (1) “a metal razor or file commonly used by carpenters, and it has attached by duct tape what appears to be an electrical cord, ” and (2) “a wooden leg from a table with part of a shoestring attached to it with a screw at the top.” Deputy Sheriff Jennifer Toomey testified that the file had an innocuous purpose as a tool but the cord had no known utility as part of the tool. She opined that the wooden leg was a homemade billy club that utilized the shoestring for grasping and retaining a grasp. Defendant’s mother testified that defendant used the file to open his car when he locked his keys inside. Defendant’s girlfriend testified that the wooden leg was a tool that defendant used to fix her van.
In argument, the People urged that defendant “had the items that were found in his room, and that instrument was a blackjack, a slungshot or a billy, and you have the definitions here which is just for ease because these items could be qualified as any one of those items. We’re just going with the definition of a slungshot.”
As to counts 3 and 4, the trial court instructed the jury in the language of CALJIC No. 12.40 as follows: “Defendant is accused in counts 3 and 4 of having violated section 12020, subdivision (a)(1) of the Penal Code, a crime. [¶] Every person who possesses any instrument or weapon of the kind commonly known as a blackjack or slung shot [sic] or billy is guilty of a violation of Penal Code section 12020, subdivision (a)(1) a crime. [¶]... [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A person knowingly possessed an instrument or a weapon; and [¶] 2. The instrument or weapon was of the kind commonly known as a blackjack or slung shot [sic] or billy. [¶] You must all agree as to which instrument or weapon is possessed.” It then instructed in the language of CALJIC No. 12.41 as follows: “The word ‘knowingly’ means with knowledge of the existence of the facts in question. Knowledge of the unlawfulness of any act or omission is not required. A requirement of knowledge does not mean that the act must be done with any specific intent.” It finally instructed on the weapon definitions as follows: “A billy is defined as a bludgeon, as one for carrying in the pocket. [¶] A blackjack is a short bludgeon consisting of a heavy head, as of metal, on a elastic shaft or a flexible handle. [¶] A slung shot [sic] is a heavy knob of metal or stone, fastened on a rope, strap or elastic tape and used for striking.”
EVIDENCE ON POSSESSION OF A SLUNGSHOT
We review a claim of insufficiency of the evidence with deference to the fact finder and based on the whole record. The question is whether or not a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Stanley (1995) 10 Cal.4th 764, 792.) As a reviewing court, we must review the evidence in the light most favorable to the judgment and presume the existence of every fact the jury could reasonably deduce from the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Penal Code section 12020, subdivision (a)(1) prohibits possession of “any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sap, or sandbag.” Case law defines a slungshot as a “ ‘small mass of metal or stone fixed on a flexible handle, strap or the like, used as a weapon.’ ” (People v. Fannin (2001) 91 Cal.App.4th 1399, 1402 (Fannin), quoting People v. Williams (1929) 100 Cal.App. 149, 151.)
Defendant contends that there was insufficient evidence to convict him of possession of a slungshot. According to defendant, the file “is a long, thin, dull piece of metal attached to a handle. Moreover, the weight of the entire object, both the cord and the file, is 12.4 ounces and the file likely does not weigh much more than the cord, and thus it is not a heavy object fastened to a rope or strap.” Defendant relies on the description of a slungshot in Fannin.
Defendant’s analysis is erroneous. Case law emphasizes the manner in which the weapon can be used over any specific method of construction.
In People v. Mulherin (1934) 140 Cal.App. 212 (Mulherin), the defendant possessed a self-fashioned instrument with a looped leather handle attached to a contiguous ring of metal washers. He challenged his conviction for possession of an instrument of the kind commonly known as a blackjack, claiming that his device lacked the attributes of a blackjack.
The Mulherin court noted that “the instrument consists of ‘a mass of metal, fixed on a flexible handle, strap or the like, ’ which brings it within the definition of a ‘slung-shot’ [sic] given in Webster’s International Dictionary.... A black-jack is defined by Webster as ‘a small leather-covered club or billy, weighted at the head and having an elastic shaft.’ ” (Mulherin, supra, 140 Cal.App. at p. 214.) The court further noted that the Encyclopedia Britannica “defines a black-jack [sic] as ‘a bludgeon-like weapon consisting of a lead slug attached to a leather thong.’ ” (Ibid.) The court declined to hold “that this instrument is not a kind of black-jack, ” noting that Penal Code section 12020 prohibits possession of “any instrument or weapon of the kind commonly known as a black-jack [sic], slung-shot [sic], billy, sand-club, sand-bag [sic] or metal knuckles....” (Mulherin, supra, at p. 214.) “All the instruments mentioned, with the exception of metal knuckles, belong to a certain species of weapon having so many characteristics in common that their slight differences are unimportant. They are all, other than metal knuckles, short, easily concealed upon the person and so weighted as to constitute effective and silent weapons of attack. Any one of them, in our opinion, would properly be described by the general term, ‘sap’.... [¶] The use of language as applied to these weapons, all of the same class, is rather indefinite. It is significant that the legislature did not prohibit possession of a black-jack [sic] as such, a slung-shot [sic], as such, a billy, as such, or of a sand-club, a sand-bag [sic] or even metal knuckles, as it might have done, but instead, and very likely with appreciation of the difficulties of nomenclature, forbade ownership of any instrument or weapon ‘of the kind, ’ as commonly known. The purpose undoubtedly was to outlaw instruments which are ordinarily used ‘for criminal and improper purposes’ [citations], and so we have in this act ‘a partial inventory of the arsenal of the “public enemy, ” the “gangster” ’ [citation], and a prohibition against owning anything ‘of the kind.’ ” (Id. at pp. 214-215.)
In People v. Grubb (1965) 63 Cal.2d 614 (Grubb), two deputy sheriffs found a small baseball bat in the defendant’s car. “The last few inches of the handle had been broken from the bat; the instrument was 20 inches long, taped at the smaller or handle end, and heavier at the unaltered end.” (Id. at p. 616.) The defendant admitted owning the bat, admitted that he possessed it for self-defense, and admitted that he had hit people with it at least twice. He was convicted of possessing an “instrument or weapon of the kind commonly known as a... billy” under Penal Code section 12020, subdivision (a)(1). On appeal, the defendant challenged his conviction, arguing that the statute’s vagueness violated federal and state due process requirements. The defendant argued that if the statute encompassed such innocent items as a baseball bat, a table leg, or piece of lumber, a person of ordinary intelligence could not gauge the lawfulness of his or her behavior with any certainty.
In rejecting the defendant’s argument, the Supreme Court construed the statute in deference to its “legislative design and purpose.” (Grubb, supra, 63 Cal.2d at p. 620.) The court explained: “The Legislature obviously sought to condemn weapons common to the criminal’s arsenal; it means as well ‘to outlaw instruments which are ordinarily used for criminal and unlawful purposes.’ ” (Ibid., quoting People v. Canales (1936) 12 Cal.App.2d 215, 217.) The court continued: “The terms of the statute gain content and definition by reference to this purpose.... The Legislature here sought 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. [Citation.] [¶] Thus we hold that the statute embraces instruments other than those specially created or manufactured for criminal purposes; it specifically includes those objects ‘of the kind commonly known as a billy.’ [Citation.] The concomitant circumstances may well proclaim the danger of even the innocent-appearing utensil. The Legislature thus decrees as criminal the possession of ordinarily harmless objects when the circumstances of possession demonstrate an immediate atmosphere of danger. Accordingly the statute would encompass the possession of a table leg, in one sense an obviously useful item, when it is detached from the table and carried at night in a ‘tough’ neighborhood to the scene of a riot. On the other hand the section would not penalize the Little Leaguer at bat in a baseball game. [¶] Applying this test to the instant case, we find the possession of the altered baseball bat, taped at the smaller end, heavier at the unbroken end, carried about in the car, obviously usable as a ‘billy, ’ clearly not transported for the purpose of playing baseball, violates the statute.” (Grubb, supra, at pp. 620-621, fn. omitted.)
In Fannin, the police found a “two-foot length of metal chain, with a heavy padlock attached to one end” in the defendant’s jacket pocket after he consented to a search. (Fannin, supra, 91 Cal.App.4th at p. 1401.) The defendant was convicted of possessing “ ‘any instrument or weapon of the kind commonly known as a... slungshot’ ” and he appealed on the ground that “ ‘slungshot’ is an archaic term that is no longer commonly known, and therefore the statute fails to meet the due process requirement of providing reasonable notice of what it prohibits.” (Ibid.) The Fannin court rejected the defendant’s due process claim, explaining that case law provided a “clear definition” of “ ‘slungshot.’ ” (Ibid.) It also noted that two dictionaries provided a nearly identical definition. (Id. at p. 1402, fn. 1.)
The Fannin court then addressed the defendant’s contention that “it would be unconstitutional to read the statute so broadly as to encompass such an ordinary useful object; otherwise, any student carrying a bicycle chain and lock would be subject to arrest and prosecution at the whim of the police.” (Fannin, supra, 91 Cal.App.4th at p. 1402.) Noting that the Supreme Court had already resolved this issue in Grubb, the court applied Grubb’s attendant-circumstances test to determine whether the defendant possessed the chain and padlock “as a weapon.” Ultimately, the Fannin court found the defendant’s statement that he possessed the items for purposes of self-defense sufficient to bring the item within the statute’s purview.
We do not believe that any of the above cases stand for the proposition that an instrument must be a heavy object fastened to a rope or strap in order to qualify as “any instrument or weapon of the kind commonly known as a... slungshot.” (Pen. Code, § 12020, subd. (a)(1), italics added.) In Mulherin, the court concluded that it was immaterial whether a particular instrument fell nicely within the definition of one of the enumerated weapons, since the statute used “rather indefinite” language and “should be given a liberal construction.” (Mulherin, supra, 140 Cal.App. at pp. 215-216.) The Mulherin court noted that all the weapons were easily concealable and “so weighted as to constitute effective and silent weapons of attack.” (Id. at p. 215.) In Grubb, the court did not focus on whether the object fit the definition of a “classic billy, ” but on whether “the circumstances of possession demonstrate[d] an immediate atmosphere of danger.” (Grubb, supra, 63 Cal.2d at p. 621 & fn. 8.) The Grubb court noted that the defendant’s own “description of the object”--as something he carried for self-defense and had used to strike people--“placed it precisely into the statutory design.” (Id. at p. 618.) In Fannin, the court similarly focused on the fact that the defendant admitted that he “carried the chain and padlock for self-defense.” (Fannin, supra, 91 Cal.App.4th at p. 1405.) The Fannin court explained: “That statement identified the bicycle lock as a weapon, and brought it within the class of objects prohibited by Penal Code section 12020.” (Ibid.)
Here, there was substantial evidence supporting a finding that the file device was an instrument easily concealable and “so weighted as to constitute [an] effective and silent weapon[] of attack.” (Mulherin, supra, 140 Cal.App. at p. 215.) Deputy Toomey testified that there was no known purpose for the cord attached to the carpenter’s file. And the jury unquestionably examined the device as we did. Our examination of the device revealed that the file portion of the device has no utility as a file. The file is covered in paint and grime such that there is nothing serrated that is exposed so as to facilitate filing. Moreover, defendant erroneously describes the device. The file portion of the device is approximately 14 inches long, one inch wide, and one-quarter inch thick. The cord is approximately half as long, double-wrapped, and threaded through the hole normally used to hang a file on a workroom wall--the duct tape simply wraps around the hole where the cord is secured. But the weight of the cord is de minimis. If the device weighs 12.4 ounces, as defendant asserts, the device is essentially a 12-ounce piece of rectangular metal hanging from an attached cord. The jury could certainly conclude that the device was a weapon regardless whether it fell nicely within the definition of one of the enumerated weapons. As the prosecutor asserted to the jury, the device “could be qualified as any one of [the statutorily enumerated] items.”
In any event, the file device could be described as a heavy object fastened to a rope or strap, which qualifies the device nicely within the definition of an instrument or weapon of the kind commonly known as a slungshot. As we have mentioned, the device is a heavy piece of metal hanging from an attached cord. It can be used as “a striking weapon” (Fannin, supra, 91 Cal.App.4th at p. 1406); it can “easily [be] concealed upon the person, ” and it is so “weighted as to constitute [an] effective and silent weapon[] of attack” (Mulherin, supra, 140 Cal.App. at p. 215). The jury could certainly conclude that it was “obviously usable as” as a slungshot. (Grubb, supra, 63 Cal.2d at p. 621.) Defendant was free to argue that the device was instead a tool for opening locked automobiles.
INSTRUCTIONS ON POSSESSION OF A WEAPON
As to counts 3 (slungshot) and 4 (billy), defendant contends that the trial court erred by failing to instruct the jury sua sponte in the language of CALJIC No. 12.42. That instruction states that the jury should consider the defendant’s intended use of an object and the attendant circumstances in determining whether the object is a deadly or dangerous weapon. Defendant’s analysis is erroneous.
CALJIC No. 12.42 (Fall 2008) provides: “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 would use it as a weapon should the circumstances require.]”
“Intent to use a weapon is not an element of the crime of weapon possession. ‘Proof of possession alone is sufficient.’ [Citation.] However, if the object is not a weapon per se, but an instrument with ordinary innocent uses, the prosecution must prove that the object was possessed as a weapon. The only way to meet that burden is by evidence ‘indicat[ing] that the possessor would use the object for a dangerous, not harmless, purpose.’ ” (Fannin, supra, 91 Cal.App.4th at p. 1404.)
Defendant relies on Fannin to support his position. There, the defendant had in his pocket a two-foot length of metal chain, with a heavy padlock attached to one end. He insisted it was a bicycle lock, but his bicycle and the key were not with him, and he told the investigating police officer that he carried the instrument for self-defense. The court explained: “[A] slungshot is a striking weapon consisting of a heavy weight attached to a flexible handle. An ordinary object such as a bicycle lock configured like Fannin’s, with the lock attached to one end of a chain, may be a slungshot. The prosecution bears the burden of proving the defendant possessed such an object as a weapon. The prosecution may meet that burden with circumstantial evidence, or with the defendant’s statements explaining why he carried the object. On the other hand, the defendant may present evidence that he possessed the object innocently, for the purposes served by its legitimate design instead of those proscribed by Penal Code section 12020.” (Fannin, supra, 91 Cal.App.4th at p. 1406.) The court concluded: “[W]hen the prosecution contends an ordinary object like a bicycle lock is a kind of slungshot, it must prove the defendant possessed the object as a slungshot. On the other hand, when the defendant is charged with possessing a slungshot like the rawhide and metal device described in Mulherin, which had no conceivable innocent function, proof of mere possession is sufficient.” (Id. at p. 1405.)
Here, neither the slungshot nor billy were ordinary objects with innocent functions. The carpenter’s file had been altered by an attached cord that had no apparent function for filing; and, as we have pointed out, the file was not usable as a file. The table leg had been detached from the table and altered with the shoestring and screw; it obviously was not used for holding up a table. The file and table leg are therefore deadly or dangerous weapons per se. Thus, the People were not required to prove that defendant possessed either as a weapon. Proof of possession alone was sufficient. Consequently, CALJIC No. 12.42 was irrelevant and the trial court was not required to give it sua sponte. “Trial courts only have a sua sponte duty to instruct on ‘the general principles of law relevant to and governing the case.’ ” (People v. Rubalcava (2000) 23 Cal.4th 322, 333-334.)
MULTIPLE PUNISHMENT
Penal Code section 654 provides, in relevant part: “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” The purpose of the statute is “to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. Although the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one offense--the one carrying the highest punishment.” (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) The section’s protection extends to cases in which a defendant engages in a course of conduct that constitutes different offenses and comprises an indivisible course of conduct punishable under separate statutes. (People v. Harrison (1989) 48 Cal.3d 321, 335.) As this court explained in People v. Braz (1997) 57 Cal.App.4th 1, 10, multiple punishment is permissible notwithstanding Penal Code section 654 if the defendant “entertained multiple criminal objectives which were independent of and not merely incidental to each other. [Citation.] A defendant’s criminal objective is ‘determined from all the circumstances and is primarily a question of fact for the trial court, whose findings will be upheld on appeal if there is any substantial evidence to support it.’ ” We must view the evidence in a light most favorable to the respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. McGuire (1993) 14 Cal.App.4th 687, 698.) The proper procedure for disposing of a term banned by Penal Code section 654 is to impose and stay the sentence. (People v. Dominguez (1995) 38 Cal.App.4th 410, 420.)
Defendant contends the trial court erred by failing to stay his concurrent sentence for count 2 because his convictions for assault with a firearm (count 1) and making a criminal threat (count 2) “stemmed from the single act of holding a gun to Mr. Stemple’s chest.” We agree.
Arguably, as the People assert, the evidence could support that defendant had multiple criminal objectives. Defendant threatened Stemple by telling him to watch his back; and afterward, having asked Stemple a question and hearing an answer, defendant opened his trunk, obtained the gun, and assaulted Stemple. But this interpretation of the facts overlooks that the jury made a special finding concerning count 2. It found that defendant made the criminal threat while personally using a firearm. Under the circumstances, the criminal threat occurred when defendant possessed the gun and pointed it at Stemple, which is the same act that underlies the conviction for assault with a firearm. The record therefore affirmatively establishes that defendant entertained a single criminal objective when he assaulted and threatened Stemple.
DISPOSITION
The judgment is modified to stay the concurrent term imposed for count 3. As so modified, the judgment is affirmed.
WE CONCUR: Rushing, P.J.Elia, J.