People v. Clark

• Decision Date: 16 May 1996
• Docket Number: No. D023104,D023104
• Citation: 45 Cal.App.4th 1147,53 Cal.Rptr.2d 99
• Parties: , 96 Cal. Daily Op. Serv. 3766, 96 Daily Journal D.A.R. 6055 The PEOPLE, Plaintiff and Respondent, v. Harvey Lee CLARK, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 99

53 Cal.Rptr.2d 99

45 Cal.App.4th 1147, 96 Cal. Daily Op. Serv. 3766,

96 Daily Journal D.A.R. 6055

The PEOPLE, Plaintiff and Respondent, v. Harvey Lee CLARK, Defendant and Appellant.

No. D023104.

Court of Appeal, Fourth District, Division 1, California.

May 16, 1996.

Greg M. Kane, under appointment by the Court of Appeal, Vista, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.

KREMER, Presiding Justice.

A jury convicted Harvey Lee Clark of possession of methamphetamine (Health & Saf.Code, § 11377, subd. (a)), possession of methamphetamine while armed with a loaded, operable firearm (Health & Saf.Code, § 11370.1, subd. (a)) and being a felon in possession of a firearm (Pen.Code, § 12021, subd. (a)(1)). Clark admitted he had suffered a prior prison team within the meaning of Penal Code section 667.5, subdivision (b).

On appeal, Clark contends the court erred in instructing the jury on a "loaded" firearm and the firearm, as a matter of law, was not loaded. Clark also contends the evidence was insufficient to support a finding he possessed or was "armed" with a firearm, and his conviction for possession of methamphetamine must be reversed "because the case was a close one and the court committed numerous errors having a highly prejudicial cumulative effect." We conclude, as a matter of law, the firearm here was not loaded within the meaning of Health and Safety Code section 11370.1, subdivision (a) and accordingly, we reverse the conviction on that count. In all other respects, we affirm.

FACTS

On September 1, 1994, the sheriff's narcotics unit executed a search warrant on a motorhome where Clark and his girlfriend Jina Paradise were living.

Among the items seized were a shotgun, a paper bindle containing methamphetamine in a small black pouch for a muscle stimulation device belonging to Clark, a glass pipe used for smoking drugs and a scale. The sheriff's deputies also seized a jewelry box which contained a plastic baggie containing an off-white powdery residue, a glass container containing an off-white powdery substance inside and two straws for inhaling drugs.

Clark told a sheriff's deputy he had been living in the motorhome for three months. He initially denied any knowledge of the shotgun or the drugs but later admitted he knew the shotgun was in the motorhome. He stated it belonged to someone else.

Paradise testified Clark had been living in the motorhome for three months; she had been staying there about three days. She had seen Clark in possession of drugs in the past. He kept his drugs in the black pouch. About three days before the search, she had used drugs with Clark; the drugs had been in a plastic baggie. She believed the methamphetamine found in the motorhome belonged to Clark. She testified the jewelry box belonged to Clark although she kept a few items in there.

Paradise testified she found the shotgun in the motorhome "a long time before" on the upper shelf of a cabinet above the bed. She told Clark about it and he checked into it. Clark surmised it belonged to the owner of the motorhome. The owner of the motorhome would come by quite often and drop off items and leave his clothes there.

Clark testified he had been living in the motorhome only three to four days before the search and that he was "totally surprised" the deputies found drugs inside the motorhome. He testified Paradise smoked methamphetamine and that the jewelry box, glass pipe, the baggies and all the drugs belonged to her. Clark stated Paradise had used methamphetamine the night before the search warrant was executed and was under the influence of drugs at the time the warrant was executed. He testified he did not use drugs, having quit in August 1988. He owned the scale which he used in his business of buying and selling scrap gold.

As to the shotgun, Clark testified when Paradise told him about the weapon, he said he did not want to deal with it and Paradise agreed to talk to the owner to have him remove the weapon. Paradise told him the owner had removed the weapon. Clark checked to make sure the shotgun had been removed and when he did not find it on the shelf in the cabinet, he assumed the owner had removed it.

DISCUSSION

I Whether Shotgun was Loaded

Clark was convicted of possessing methamphetamine "while armed with a loaded, operable firearm" in violation of Health and Safety Code section 11370.1, subdivision (a) (italics added). He contends the court erred in instructing the jury on what the term "loaded" means and argues the shotgun here, as a matter of law, was not loaded. He objected to the court's definition of the term loaded and made a motion for acquittal on the Health & Safety Code section 11370.1, subdivision (a) count because, as a matter of law, the shotgun was not loaded.

The shotgun here is a single-shot shotgun. When the police seized the shotgun, it did not have a shell in the firing chamber. There were, however, three shells located in a covered compartment at the rear of the shotgun's stock. It is not possible to fire a shell from that location; a shell would have to be removed from the compartment and placed by hand in the chamber before it could be fired. A sheriff's deputy testified the shells were located in a "storage area."

Health and Safety Code section 11370.1 does not contain a definition of the term "loaded." The trial court relied on the definition of "loaded" contained in Penal Code section 12031. Penal Code section 12031 punishes the carrying of a loaded firearm in public or in a vehicle. Subdivision (g) of Penal Code section 12031 provides:

"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." (Italics added.)

Using this definition, the court told the jury "A shotgun is deemed to be 'loaded' when there is an unexpended shell ... in, or attached in any manner to, the shotgun."

The Attorney General argues the court's instruction was correct and the shotgun here was "loaded" within the meaning of Health and Safety Code section 11370.1, subdivision (a) because the shotgun shells, located in a storage compartment in the rear of the stock, were "attached" to the shotgun.

We find this argument unpersuasive. We first observe, that in general, the language of a statute is to be given "its usual, ordinary import." (Quintano v. Mercury Casualty Co. (1995) 11 Cal.4th 1049, 1055, 48 Cal.Rptr.2d 1, 906 P.2d 1057; Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.)

The term "loaded" has a commonly understood meaning: "to put a load or charge in (a device or piece of equipment) < C a gun" or "to put a load on or in a carrier, device, or container; esp.: to insert the charge or cartridge into the chamber of a firearm." (Webster's New Collegiate Dict. (1976) p. 674.) Under the commonly understood meaning of the term "loaded," a firearm is "loaded" when a shell or cartridge has been placed into a position from which it can be fired; the shotgun is not "loaded" if the shell or cartridge is stored elsewhere and not yet placed in a firing position. The shells here were placed in a separate storage compartment of the shotgun and were not yet "loaded" as the term is commonly understood.

There is nothing in Health and Safety Code section 11370.1 which indicates the Legislature did not intend to use the term "loaded" in its commonly understood meaning. We note Penal Code section 12031 states it is defining the term "loaded" "for the purposes of this section" (Pen.Code, § 12031, subd. (g)); it does not state it is applicable to a Health and Safety Code offense nor does Health and Safety Code section 11370.1 refer to the Penal Code definition.

Second, even if we were to accept the Attorney General's assertion that the definition of "loaded" contained in Penal Code section 12031, subdivision (g) applies to Health and Safety Code section 11370.1, subdivision (a), we would still conclude the shotgun here was not loaded.

A statute "must be given a reasonable and commonsense interpretation consistent with the apparent purpose and intention of the Legislature, practical rather than technical in nature, and which, when applied, will result in wise policy rather than mischief or absurdity. [Citations.]" (Beaty v. Imperial Irrigation Dist. (1986) 186 Cal.App.3d 897, 902, 231 Cal.Rptr. 128.) "The words must be construed in context in light of the nature and obvious purpose of the statute where they appear. [Citation.]" (Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 354, 257 Cal.Rptr. 356; Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 659, 25 Cal.Rptr.2d 109, 863 P.2d 179.)

The Attorney General urges a literal interpretation should be adopted, i.e., that if an unexpended shell is "attached in any manner" to a firearm, then the firearm is loaded, regardless of whether the shell has been attached in a manner in which it can be fired from the firearm. This literal interpretation, while supported by words contained in the statute, does not appear to comport with the legislative intent.

The Legislature in Penal Code section 12031, subdivision (g), provided some examples of how a shell would be "attached" to a firearm so that the firearm is loaded, i.e., in the firing chamber, magazine or clip; situations in which the firearm would be "loaded" in the usual meaning of the word,...