People v. Baugh

• Decision Date: 09 February 2018
• Docket Number: A145675
• Citation: 228 Cal.Rptr.3d 898,20 Cal.App.5th 438
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Corey V. BAUGH, Defendant and Appellant.

20 Cal.App.5th 438

228 Cal.Rptr.3d 898

The PEOPLE, Plaintiff and Respondent,

v.Corey V. BAUGH, Defendant and Appellant.

A145675

Court of Appeal, First District, Division 4, California.

Filed February 9, 2018

John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Seth K. Schalit, Supervising Deputy Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, for Plaintiff and Respondent.

Streeter, J.Defendant Corey V. Baugh appeals a judgment entered on a jury verdict finding him guilty of possessing a billy club ( Pen. Code,¹ § 22210 ). Baugh contends the trial court erroneously instructed the jury that a charge of possessing a billy does not require the prosecution to prove he intended to use it as a weapon. We disagree and therefore affirm the judgment.

I. BACKGROUND

Late one evening in Brentwood, Baugh was pulled over while driving a yellow Chevy Cavalier registered to the mother of Joey Tipton-Garcia, Baugh's friend and neighbor. Although the car was owned by someone else, Baugh regularly drove it.

Officer Jonathan Colburn made the traffic stop when he saw the car had an inoperable headlight. Sergeant David Schroer, providing backup, alerted Officer Colburn to a .22 caliber round he spotted in the coin tray. In addition, Officer Colburn noticed the car's ignition switch was torn out. Suspecting a vehicle theft, he ordered Baugh out of the car and began a search.

As Baugh got out of the vehicle, Officer Colburn saw a small wooden bat wedged between the driver-side door and seat. He also found two bags of .22 caliber ammunition under the driver's seat and a loaded .22 caliber rifle disguised as a baseball bat protruding from the trunk. At that point, he took Baugh into custody. While being transported to jail in handcuffs, Baugh complained of rib pain due to being "jumped" three weeks earlier.

Following Baugh's arrest, he was charged with three felony offenses: being a felon in possession of a firearm (§ 29800, subd. (a)(1)) (Count One), being a person prohibited from possessing a firearm in possession of ammunition (§ 30305, subd. (a)) (Count Two), and possessing a billy ( § 22210 ) (Count Three). A prior strike for assault with a deadly weapon upon a police officer in violation of section 245, subdivision (c), was also alleged.

At trial, relying on testimony from Officer Colburn, the People argued the small wooden bat was a billy. In his defense, Baugh claimed it was not a billy but a tool called a "tire thumper."

Baugh told the jury he owned the bat because it was an essential tool for his work as a commercial truck driver. He explained that commercial truck drivers always check the air pressure of their truck tires as part of a routine "pre-trip" safety inspection, which entails thumping the tires with a small wooden bat and listening for a particular sound. Baugh said he could be fined or fired if he drove a truck without a tire thumper.

When asked why he had the small wooden bat with him even though he was not in a commercial truck, Baugh answered, "if you do not take your stuff out of the truck, somehow, your tools might come up missing by the other driver" of the shared vehicles. He claimed he placed it next to the driver's seat specifically to ensure he would remember to bring it down from the car.

Tipton-Garcia, the car's primary driver and Baugh's friend and neighbor, testified she was familiar with the tools of commercial truck drivers because her father worked as one. She previously saw the small wooden bat "[a]round the house" and believed it was a tire thumper.

The People countered that Baugh's version of events was implausible, and offered an alternative view of his intent based on the circumstances. At the time of the traffic stop, the People pointed out, Baugh was neither driving a commercial truck nor steadily employed with a trucking company, so it made no sense that he would need a tire thumper close at hand.

Because this incident occurred outside any time frame that would put Baugh behind the wheel of a commercial truck, the People suggested the wooden bat was a weapon intended for self-defense, which is why he had it within easy reach from the driver's seat. Highlighting Baugh's statement that he had been recently jumped, the People argued he likely felt vulnerable driving late at night, and therefore carried the bat by his side for personal protection.

On Count Three, the jury accepted the People's view of the evidence and returned a guilty verdict. It failed to reach a verdict on Counts One and Two, presumably because, unlike the small wooden bat, which Baugh admitted placing next to him but tried to explain away, it saw reasonable doubt as to whether he knew the scattered ammunition and the rifle in the trunk were in a borrowed car.

At sentencing on the section 22210 conviction, the trial court struck the charged strike prior pursuant to section 1385, and placed Baugh on formal probation for three years. This timely appeal followed.

II. DISCUSSION

A trial court has a sua sponte duty to instruct the jury on the elements of a charged offense. ( People v. Mil (2012) 53 Cal.4th 400, 409, 135 Cal.Rptr.3d 339, 266 P.3d 1030.) On appeal, "[t]he independent or de novo standard of review is applicable in assessing whether instructions correctly state the law [citation] and also whether instructions effectively direct a finding adverse to a defendant by removing an issue from the jury's consideration [citation]." ( People v. Posey (2004) 32 Cal.4th 193, 218, 8 Cal.Rptr.3d 551, 82 P.3d 755.) In construing the relevant statute, "[w]e must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences." ( People v. Jenkins (1995) 10 Cal.4th 234, 246, 40 Cal.Rptr.2d 903, 893 P.2d 1224.)

In this case, the court instructed under CALCRIM No. 2500, "Alternative 3A—object capable of innocent uses>," the prosecution had to prove that defendant possessed the billy, he knew he possessed the billy, and "[t]he defendant possessed the object as a weapon. When deciding whether the defendant possessed the object as a weapon, consider all the surrounding circumstances relating to that question, including when and where the object was possessed[,] ... where the defendant was going, ... whether the object was changed from its standard form, and any other evidence that indicates whether the ... object would be used [for] a dangerous, rather than a harmless purpose." ( CALCRIM No. 2500.) The court further instructed with the portion of CALCRIM No. 2500 that applies "only if alternative 3B is given>" ("Alternative 3B—object designed solely for use as weapon>"), by stating: "The People do not have to prove that the defendant intended to use the object as a weapon." ( CALCRIM No. 2500.)

Although the court deviated from the italicized Use Notes embedded within CALCRIM No. 2500 by including instructional language that the People were not obligated to prove intent to use the alleged billy as a weapon, we see no error. Section 22210 criminalizes possession of all dangerous weapons, not just their use or the intent to use them. Thus, the cases decided under section 22210 (e.g., People v. Huynh (Jan. 19, 2018, H042184) 19 Cal.App.5th 680, –––– – ––––, ––– Cal.Rptr.3d ––––, 2018 WL 477335, 2018 Cal.App. Lexis 41, at pp. *38–*45 [mini sledgehammer] ( Huynh ); People v. Davis (2013) 214 Cal.App.4th 1322, 1328–1329, 155 Cal.Rptr.3d 128 [modified baseball bat] ( Davis )), and its predecessor statute, former section 12020, subdivision (a) (e.g., People v. Grubb (1965) 63 Cal.2d 614, 620–621, fn. 9, 47 Cal.Rptr. 772, 408 P.2d 100 [broken baseball bat] ( Grubb ); People v. Fannin (2001) 91 Cal.App.4th 1399, 1404, 111 Cal.Rptr.2d 496 [bicycle lock on a chain] ( Fannin )), consistently hold that, if the object in question has a lawful use, the prosecution need only prove the defendant possessed the object as a weapon.²

Grubb established the applicable test for determining whether a defendant has the requisite intent for felony weapons possession where, as here, the object at issue has a lawful use. ( Grubb , supra , 63 Cal.2d at pp. 619–622 & fn. 9, 47 Cal.Rptr. 772, 408 P.2d 100.) Rejecting a claim that former section 12020 was void for vagueness, our Supreme Court in Grubb found that, on the facts presented there, possession of a broken baseball bat constituted illegal possession of a billy, without regard to the possessor's intent to use it as a weapon. ( Id. at pp. 619–622, 47 Cal.Rptr. 772, 408 P.2d 100.) The defendant admitted to the police he possessed the bat for "self-defense" and had previously used it as a weapon, which "set forth the very elements that convert the broken bat otherwise usable for peaceful purposes into the kind of instrument proscribed by the statute." ( Id. at pp. 617–618, 47 Cal.Rptr. 772, 408 P.2d 100.)

The Grubb court ultimately reversed the defendant's conviction based on a postarrest confession elicited in violation of his right to counsel and privilege against self-incrimination ( Grubb , supra , 63 Cal.2d at pp. 617–618, 622, 47 Cal.Rptr. 772, 408 P.2d 100 ), but in the course of discussing the issue of facial constitutionality, the court expounded at some length on the scope of the challenged statute. "The Legislature obviously sought to condemn weapons common to the criminal's arsenal," the court explained, but "it meant as well ‘to outlaw instruments which are ordinarily used for criminal and unlawful purposes.’ [Citations.] The Legislature's understandable concern with the promiscuous possession of objects dangerous to the lives of members of the public finds manifestation in [former] section 12020. Easy access to instruments of violence may...