People v. Brown

• Decision Date: 21 July 2014
• Docket Number: C066262
• Citation: 173 Cal.Rptr.3d 812,227 Cal.App.4th 451
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Kenneth Wesley BROWN, Defendant and Appellant.

227 Cal.App.4th 451

173 Cal.Rptr.3d 812

The PEOPLE, Plaintiff and Respondent,

v.Kenneth Wesley BROWN, Defendant and Appellant.

C066262

Court of Appeal, Third District, California.

Filed June 25, 2014

Certified for Partial Publication.^*

As Modified on Denial of Rehearing July 21, 2014

See 2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Public Peace and Welfare, § 211.

APPEAL from a judgment of the Superior Court of Sacramento County, Benjamin G. Davidian, Judge. Affirmed. (No. 09F06523)

Laurie Wilmore, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.

MURRAY, J.

Defendant Kenneth Wesley Brown was convicted of possession of a “short-barreled shotgun” under former Penal Code section 12020.¹ (Stats. 2008, ch. 699, § 18.) Defendant had been found in possession of the weapon in his home. California's statutory definition of “short-barreled shotgun” includes a shotgun with a barrel less than 18 inches long or with an overall length of less than 26 inches, regardless of the length of the barrel. The barrel of defendant's shotgun was one quarter inch longer than the minimum length of 18 inches, but the overall length was 25 and a half inches—too short by half an inch. He appeals, contending the statute, on its face and as applied, violates the Second Amendment's right to bear arms and equal protection. He also claims the trial court erred in denying his motion for acquittal (§ 1118.1) due to insufficiency of evidence, and made instructional errors.

We conclude that California's ban on shotguns with an overall length of less than 26 inches does not violate the Second Amendment or equal protection. We also reject defendant's other contentions.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

An information charged defendant with felony possession of a “sawed-off shotgun,” in violation of former section 12020, subdivision (a).

Former section 12020 provided in part:

“(a) Any person in this state who does any of the following is punishable by imprisonment in a county jail not exceeding one year or in the state prison: [¶] (1) ... possesses ... any short-barreled shotgun.... [¶] ... [¶]

“(c)(1) As used in this section, a ‘short-barreled shotgun’ ² 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.[³

“(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.” (Former § 12020; now § 17180, italics added.)

Pretrial Hearing Concerning Expert Testimony about the Shotgun

The trial court conducted an Evidence Code section 402 hearing in which a district attorney's office investigator, Marcello Codog, testified. Codog had extensive experience with firearms over the course of 23 years in law enforcement. He served 20 years on the Sacramento Police Department, including assignments as a SWAT officer, Range Instructor and Range Master. At the time he testified, he was the Range Master for the district attorney's office. In addition to standard academy and range training, he had 244 hours firearms training, including a 64–hour POST-certified firearms instructor training and 80 hours range instructor course. He also had advanced weapons training for his previous SWAT assignment at the Sacramento Police Department.

In the hearing, Codog described that the stock of the shotgun here had been cut, a hole had been filled in with putty, and then the stock had been spray-painted. Additionally, the shotgun barrel had been cut. Codog also testified that generally, the shorter the barrel of a shotgun, the wider the spread of pellets it discharges. A modern-day tactical or combat shotgun typically would have a barrel length of 20 to 26 inches and a pistol grip.

Codog testified that he has spoken with people who had been arrested for possession of illegally modified shotguns about why they carried these weapons and why the weapons had been modified. He also received training concerning the criminal purpose of modifying shotguns. He explained that people shorten shotguns to make the weapon easily concealable on a person under a shirt or jacket or in a vehicle or house, and “in a use situation on the streets, it's easily manipulated because of the size. [¶] And there is an intimidation factor to a sawed-off shotgun. It's just a psychological-type thing.” The trial court asked Codog, “Would it also be more useful or effective in say, home protection, in that you are in the close confines of a hallway or something like that, that you could actually protect your home or yourself in that situation, as well?” Codog responded, “Yes, it would be.”

The trial court concluded that Codog was sufficiently qualified as an expert in firearms to make the observations that the stock and barrel of the gun had been modified. The trial court sustained defendant's objection to Codog's testimony that people modify shotguns to make them concealable or easier to handle in confined places on the ground the defense was not provided sufficient notice of this proposed testimony.

Trial Evidence

California Highway Patrol (CHP) officers found the shotgun in defendant's home on August 27, 2009, pursuant to a search warrant obtained following defendant's remarks to a CHP officer and Department of Motor Vehicles (DMV) employees.

A CHP officer testified that, on March 25, 2009, around noon, he pulled over a car driven by defendant for making an illegal U-turn (Veh.Code, § 21461 [disobeying a traffic control sign] ). Defendant was upset about getting a ticket because he had just got his license back from a prior matter. As defendant signed the new citation, he told the officer, “I can't wait.” The officer testified he asked what defendant couldn't wait for, and “he [defendant] said I'm gonna blow shit up, quote, and then he said something under his breath kind of unintelligible, and then I heard very distinctly AR–15,” which is an “assault rifle.” The officer retreated to his patrol car and called for back-up. When other officers arrived, defendant initially rolled up his windows and refused to get out of his vehicle. After he got out, he clinched his fists across his chest and told the officers, “Shoot me.” The officers knocked defendant to the ground and deployed a taser. Because of his behavior, his rigid muscle tone and sweating, the officers thought defendant was under the influence of drugs. Defendant refused to take a chemical test, which led to a DUI arrest and forcible draw of defendant's blood. As a result of his refusal, his license was suspended. However, no drug or DUI charges were filed.

A DMV employee testified that on June 16, 2009, she took a phone call from a person inquiring about why his license had been suspended or revoked. He gave her his license number and identified himself as Kenneth Brown. He was “very upset to begin with, and it got even worse” once the DMV worker got his license number. She explained she could not help him because court action had already been taken. She tried to give him the phone number for the Mandatory Actions Unit to apply for a late hearing, but he got upset and rude and said he knew DMV does not have metal detectors, and he can come in at anytime with a gun and “light the place up.” Defendant ended the phone call. The DMV employee was disturbed and reported the call to her manager. A CHP officer took the employee's statement a few days later.

Another DMV worker testified that on August 17, 2009, she took a phone call from a person who gave defendant's license number and identified himself as Kenneth Brown. He was upset about his license being suspended for refusal to take a breath or blood test. He said DMV does not have metal detectors. The worker told him that the last time someone said that to DMV, DMV called the police. DMV called the police, and an officer took the employee's statement.

Defendant's mother, Dorothy Brown, called as a prosecution witness, testified that defendant lives with her in her house. On August 19, 2009, a CHP officer came to her house and asked for defendant, who was not home. She later relayed to defendant the officer's request for a phone call. On August 27, 2009, CHP officers returned, banged on the door, busted it open, and entered with guns drawn. Mrs. Brown came out of the bathroom and saw officers with defendant on the floor.

Mrs. Brown testified that defendant was the only person living in the bedroom at the time the police found the shotgun there. Defendant had had a friend living there with him, but the friend moved out a year before the police search. Before that, another person had shared the room but had moved out two to three years before the police search. Mrs. Brown was unaware of any guns in the house until the police search. She did not go into defendant's bedroom because she is confined to a wheelchair, and the room was very cluttered. There are items all over the floor and furniture. Her other son and adult grandchildren also had access to the house.

CHP Officer Jeff Asnicar testified that on August 19, 2009, he received a report about defendant's threat to the DMV. The officer also had reports of the June 2009 threat to the DMV, and the March 2009 traffic stop. He went to defendant's residence and spoke with his mother, who said he was not home. The officer left a card and asked that defendant call him. After a week with no contact from defendant, the officer obtained a search warrant on August 26...