People v. Heffner

Decision Date13 June 1977
Docket NumberCr. 30197
Citation70 Cal.App.3d 643,139 Cal.Rptr. 45
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Douglas Reed HEFFNER, Defendant and Appellant.

Weinstein, Shelley & Proctor, and Robert R. Shelley, Alhambra, for defendant and appellant.

John K. Van de Kamp, Dist. Atty., Harry B. Sondheim and George M. Palmer, Deputy Dist. Attys., for plaintiff and respondent.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., and William R. Pounders, Deputy Atty. Gen. as amicus curiae on behalf of plaintiff and respondent.

LILLIE, Acting Presiding Justice.

Following certification by the Appellate Department of the Superior Court, and good cause appearing therefor, the within appeal was transferred from the municipal court to this court for determination of whether Penal Code section 12031, subdivision (a) 1 applies to the weapon known as a 'Taser.'

Defendant's vehicle was stopped by police for investigation of a Vehicle Code violation; as defendant exited the vehicle, the officer observed a Taser in a holster on his belt, determined that it was 'loaded' and arrested him. Defendant was convicted in the municipal court of violating section 12031, subdivision (a). The appellate department of the superior court (Judge Alarcon dissenting) reversed the judgment.

Whether section 12031, subdivision (a) applies to a Taser depends on whether the Taser is construed as a 'firearm' within the meaning of the statute, and, if it is, whether it can be construed to be a 'loaded firearm' as defined by section 12031, subdivision (e), Penal Code.

The Taser involved herein is a model TF--1. As described by defendant, the Taser is a handheld, flashlight configurated plastic weapon which contains an electrical supply unit and into which expendable plastic cassettes are inserted. The cassettes contain insulated wires attached to barbed contactors. The contractors are deployed (up to a distance of 15 feet) by the electrical ignition of a squib containing four-fifths of a grain of smokeless powder. Upon deployment on the target area, a pulsed low-amperage current is carried to the barbed contactors via the insulated wires. The current passes into the body of the target and will temporarily incapaciate him. To supplement this description, each of the two chambers of the instrument into which a cassette is inserted and from which the contactors are expelled has a square muzzle and is longer in depth than in height or width; in other words, each chamber has the shape of a rectangular parallelepipedon or elongated cube. Each cassette is of the same configuration as each chamber and fits snugly into it. The Taser is a recent innovation in weaponry and has been the subject of some controversy; it has elicited comment from a number of public officials regarding its legal status. 2

Is the Taser a 'firearm' for purposes of section 12031, subdivision (a)?

The statute fails to define the term 'firearm.' However, Penal Code section 12001 defines concealable firearms and it may, with reason, be inferred that if the Taser is a firearm at all it is a concealable firearm, like a pistol or revolver, and unlike a rifle or shotgun. That being so, for the Taser to be a firearm within legislative contemplation it must satisfy the definition of section 12001, which reads in relevant part: "Pistol,' 'revolver,' and 'firearm capable of being concealed upon the person' as used in this chapter shall apply to and include any device, designed to be used as a weapon, from which is expelled a projectile by the force of any explosion, or other form of combustion, and which has a barrel less than 12 inches in length.' Reduced to checklist form a concealable firearm must be a device (1) designed to be used as a weapon, (2) which expels a projectile, (3) by the force of any explosion or other combustion, and (4) having a barrel less than 12 inches in length.

There is and can be no real dispute that the Taser is designed to be used as a weapon, and that the Taser's barbed contactors are expelled by the force of explosion. Defendant has suggested that the Taser's contactors do not qualify as projectiles. He asserts that 'A projectile, in firearm nomenclature, is an object which can penetrate or pass through the body of the person it strikes,' and that this is not true of the Taser's barbed contractors. Even if defendant is correct in claiming that 'projectile' is often used as a term of art, it is apparent that the Taser's barbed contactors literally satisfy the definition he proffers inasmuch as the barbs of the contactors are designed to and do penetrate the skin and clothing of the target. Admittedly, the penetrating power and the depth of penetration of the barbs are comparatively slight, being limited to what is necessary for electrical contact. However, unless 'penetrate' is also to be given a restricted meaning, it is apparent that the barbs of the Taser's contactors can and do penetrate the body of the target. More generally, though, we see no reason to believe that the Legislature used the term 'projectile' in any technical sense. Ordinarily, in construing a statute words are to be given their common meaning. The common meaning of 'projectile' as 'A body projected by exterior force, and continuing in motion by its own inertia; specif.,: a missile for a firearm or cannon' 3 is quite appropriate in the context of section 12001. It has the advantage the technical usage claimed by defendant does not, of including projectiles capable of inflicting significant damage but without the potential for real penetration, for example, rubber bullets. 4

The most serious point of controversy with respect to application of the section 12001 definition of a concealable firearm is whether the Taser has a barrel less than 12 inches in length. The only parts of the Taser which lend themselves to description as 'barrels' are the chambers into which the barbed contactors are placed and from which they are expelled; if they are barrels they are certainly less than 12 inches in length. 5

Asked what 'barrel' means as applied to a weapon, the average person would likely advance the functional definition suggested by the People, namely that the barrel is that part of a gun/firearm which controls the direction of the projectile fired therefrom. True, the barrel of a gun typically is made of metal and is usually cylindrical in shape. Yet there appears no reason logically or semantically to insist that a gun's barrel must be made of metal or that it be cylindrical. We do not understand defendant to argue that because the Taser is not made of metal it can have no barrel, yet he does argue that because the Taser's chambers are not cylindrical they cannot be barrels. The configuration of the barrel, however, depends largely on the shape of the projectile designed for use with the weapon. It is common knowledge that firearms with other than a cylindrical barrel have been devised. It is hardly reasonable to suppose that in adopting the Dangerous Weapons' Control Law, the Legislature intended to be wedded to a hypertechnical definition of 'barrel,' one placing without the law a pistol with, say, an octagonal barrel. If that were so, the purpose of the law would be readily frustrated. As was observed in People v. Deibert, 117 Cal.App.2d 410, 418, 256 P.2d 355, 360, in a somewhat different context, 'The complexities of the social problems dealt with by the Legislature require that a practical construction be given to the language employed by the draftsmen of legislation lest their purposes be too easily nullified by overrefined inquiries into the meanings of words.'

If the dictionary is to be consulted as the arbiter of usage, 'barrel,' as relevant here, is defined as 'The metal Tube of a gun, from which the projectile is discharged' (emphasis added), while 'tube' is defined as '1.a. A hollow cylinder, of any material, to convey liquids or gases or for some other purpose; . . . b. Any similar hollow conduit, often oval, square, or polygonal in section.' Thus, while it is true that 'barrel' often denotes something of cylindrical shape, whether it does or not depends on the context in which it is used. We have no qualms about concluding that the Taser's cartridge chambers are 'barrels' within the ordinary meaning of the term, and consequently that

the Taser is a firearm within section 12031, subdivision (a). Can the Taser be a 'loaded firearm' as defined by section 12031, subdivision (e)?

The subdivision states: 'A firearm shall be deemed to be loaded for the purposes of this section when there is an unexpended cartridge or shell, consisting of a case which holds a charge of powder and a bullet or shot, in, or attached in any manner to, the firearm, including, but not limited to, in the firing chamber, magazine, or clip thereof attached to the firearm; except that a muzzle-loader firearm shall be deemed to be loaded when it is capped or primed and has a powder charge and ball or shot in the barrel or cylinder.'

We should have thought that, as a matter of logic, any device qualifying as a firearm can also qualify as a loaded firearm. Defendant, however, thinks otherwise. He argues that, whether or not the Taser is a firearm, it cannot be a loaded firearm within section 12031 because there is nothing in the Taser which resembles a 'bullet' or 'shot,' required by the definition of 'loaded' in subdivision (e).

We note, initially, that the apparent purpose of subdivision (e) is to make it clear that for purpose of section 12031 the usual meaning of 'loaded firearm' is to apply. This is inferable from the fact that, as part of the same legislative package containing section 12031 (Stats.1967, ch. 960, § 1, p. 2559), the Legislature enacted Penal Code sections 171c, 171d, and 171e. (Stats.1967, ch. 960, §§ 2, 3, 4, pp. 2461--2462.) The former two sections generally prohibit...

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