People v. Kirk, C001376

• Decision Date: 31 May 1989
• Docket Number: No. C001376,C001376
• Citation: 259 Cal.Rptr. 44,211 Cal.App.3d 58
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Larry Wilbur KIRK, Defendant and Appellant.

Page 44

259 Cal.Rptr. 44

211 Cal.App.3d 58

The PEOPLE, Plaintiff and Respondent, v. Larry Wilbur KIRK, Defendant and Appellant.

No. C001376.

Court of Appeal, Third District, California.

May 31, 1989.

Ernest Krause, San Francisco, under appointment by the Court of Appeal, for defendant and appellant

John K. Van de Kamp, Atty. Gen., James T. McNally and Wanda Hill Rouzan, Deputy Attys. Gen., for plaintiff and respondent.

SIMS, Associate Justice.

Did defendant's possession at the same time and place of two sawed-off shotguns constitute two separate violations of former Penal Code section 12020, subdivision (a)? We hold it did not, so that one of defendant's two convictions of that offense must be reversed. (All further statutory references to sections of an undesignated code are to the Penal Code.)

A jury convicted defendant Larry Wilbur Kirk of first degree burglary as charged in counts I and II of the information ( §§ 459, 460), illegal possession of a sawed-off shotgun as charged in count III (former § 12020, subd. (a)), and illegal possession of a "sawed-off rifle" as charged in count IV (former § 12020, subd. (a)). Defendant admitted allegations that he had suffered two prior serious felony convictions ( § 667, subd. (a)). Sentenced to state prison for an unstayed term of 18 years and 8 months, defendant appeals.

The convictions were based upon the following facts: On July 15, 1985, the Lynn residence was burglarized. Among the items taken was a Browning rifle. Defendant's fingerprint was discovered on the exterior window through which the burglar had entered the residence.

On the following day, July 16, the Aitken residence was burglarized. Among the items taken were a Remington shotgun and jewelry. Within a few hours of the burglary defendant pawned some of the stolen jewelry.

On July 21 police officers were dispatched to the scene of a fight in progress in which gunshots reportedly had been fired. Through the window of an apartment the officers observed defendant inside. They entered and found a sawed-off shotgun on the living room couch and a sawed-off rifle in a closet in the bedroom.

The victim Aitken identified the shotgun as the one stolen from his residence in the July 16 burglary. The victim Lynn identified the rifle as the one stolen from his residence in the July 15 burglary. However, both weapons had been altered to their illegal configurations after they had been stolen.

DISCUSSION

When defendant committed his crimes in 1985, subdivision (a) of section 12020 provided: "Any person ... who ... possesses ... any instrument or weapon of the kind commonly known as a ... sawed-off shotgun ... is guilty of a felony, ..." (Stats.1984, ch. 1414, § 3, pp. 4972-4973, emphasis added; Stats.1984, ch. 1562, § 1.1, p. 5499.) ¹ Subdivision (d)(1) of section 12020 The principal question is whether defendant can be convicted of two violations of former section 12020 where he possessed two sawed-off shotguns at the same time and place. At the outset, we shall make sure the stage is properly set for resolution of the question by clearing away some distracting scenery.

                then defined "sawed-off shotgun" as "any firearm (including any revolver) manufactured, designed, or converted to fire shotgun ammunition having a barrel or barrels of less than 18 inches in length, or a rifle having a barrel or barrels of less than 16 inches in length, or any weapon made from a rifle or shotgun (whether by manufacture, alteration, modification, or otherwise) if such weapon as modified has an overall length of less than 26 inches." 2  (Id. at ch. 1414, § 3, p. 4974.)
                

First, there is no possibility the two convictions were appropriate on the ground different weapons--a sawed-off shotgun and a sawed-off rifle--were found. Former section 12020 makes no distinction between rifles and shotguns so long as they are of the illegal dimensions fixed by the statute. Under subdivision (d)(1) of former section 12020, a sawed-off rifle is a sawed-off shotgun. Therefore, multiple convictions cannot be sustained by drawing an analogy to cases that have upheld multiple convictions for possession of different kinds of illegal narcotics. (See In re Adams (1975) 14 Cal.3d 629, 635, 122 Cal.Rptr. 73, 536 P.2d 473 and authorities cited; In re Hayes (1969) 70 Cal.2d 604, 606, 75 Cal.Rptr. 790, 451 P.2d 430, and authorities cited.) Rather, the question is whether defendant can be twice convicted for possessing two of the same kind of illegal item. (See, e.g., In re Adams, supra, 14 Cal.3d at p. 635, 122 Cal.Rptr. 73, 536 P.2d 473.)

Second, there is no possibility the two convictions could be justified on the theory defendant possessed the two weapons at different places or times. The information charged defendant with possessing the weapons on July 21, 1985. Although the weapons were taken in the precedent burglaries, the evidence shows without dispute the weapons had not then been sawed off. Thus, the only evidence of possession of illegal weapons was that they were located in two rooms of defendant's residence on July 21, as alleged in the information. The cases have recognized that where illegal goods are kept at the same time in a residence, there is but a single possession of the goods. (See, e.g., People v. Harris (1971) 71 Cal.App.3d 959, 962, 969-970, 139 Cal.Rptr. 778 [various unlawful items seized in a residence]; People v. Puppilo (1929) 100 Cal.App. 559, 561-562, 280 P. 545 [one illegal weapon found in front room, while another found in bedroom].)

Third, contrary to the People's suggestion, multiple convictions in this case are not justified by People v. Wasley (1966) 245 Cal.App.2d 383, 53 Cal.Rptr. 877. There, a pistol was found under the front seat on the passenger's side of defendant's vehicle and a sawed-off shotgun was found on the rear seat. (P. 386.) Defendant was convicted of violation of former section 12020 for possessing the sawed-off shotgun and of violation of former section 12021 for being a convicted felon in possession of the pistol. (P. 385, 53 Cal.Rptr. 877.) Upholding the two convictions, the court of appeal noted the two statutes served different public purposes. (P. 386, 53 Cal.Rptr. 877.) Wasley is not controlling here because only a single statute with a singular public purpose has been violated.

We are aware that numerous cases have held that a defendant is subject to only a single conviction when he possesses more than one unlawful item of the same kind at the same time and place. (People v. Harris, supra, 71 Cal.App.3d at pp. 969-970, 139 Cal.Rptr. 778 [contemporaneous possession of various items of property with obliterated serial numbers constituted only one crime]; People v. Schroeder (1968) 264 Cal.App.2d 217, 228-229, 70 Cal.Rptr. 491 [contemporaneous possession of various However, these cases were decided under different statutes from the one at issue here. We therefore think the question becomes one of statutory construction. We have no doubt the Legislature could, if it wanted to, make criminal and subject to separate punishment the possession of each and every sawed-off shotgun found at the same time and place. (See Bell v. United States (1954) 349 U.S. 81, 82-83, 75 S.Ct. 620, 621-622, 99 L.Ed. 905, 910.) The question is whether it did so by outlawing the possession of "any instrument or weapon of the kind commonly known as a ... sawed-off shotgun, ..." (Former § 12020, subd. (a), emphasis added.)

packets of the same kind of narcotics constituted one crime]; People v. Theobald (1964) 231 Cal.App.2d 351, 353, 41 Cal.Rptr. 758 [same]; People v. Puppilo, supra, 100 Cal.App. at pp. 562-566, 280 P. 545 [contemporaneous possession of two unlawful weapons constituted single offense]; see also People v. Lyons (1958) 50 Cal.2d 245, 275, 324 P.2d 556 [contemporaneous receipt of two items of stolen property constituted single offense]; People v. Smith (1945) 26 Cal.2d 854, 859, 161 P.2d 941 [same].)

As used in criminal statutes, the word "any" has long been construed as ambiguously indicating the singular or the plural.

Thus, in Bell v. United States, supra, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 defendant was convicted of two violations of the Mann Act for transporting two women across state lines in the same vehicle on the same trip. (349 U.S. at p. 82, 75 S.Ct. at p. 621, 99 L.Ed. at pp. 909-910.) The Mann Act provided in relevant part: "Whoever knowingly transports in interstate or foreign commerce ... any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose [shall be subject to fine or imprisonment]." (Ibid.)

Reversing the multiple convictions in an opinion by Justice Frankfurter, the high court said, "When Congress has the will it has no difficulty in expressing it--when it has the will, that is, of defining what it desires to make the unit of prosecution and, more particularly, to make each stick in a faggot a single criminal unit. When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity. And this not out of any sentimental consideration, or for want of sympathy with the purpose of Congress in proscribing evil or antisocial conduct. It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment. This in no wise implies that language used in criminal statutes should not be read with the saving grace of common sense with which other enactments, not cast in technical language, are to be read. Nor does it assume that offenders against the law carefully read the penal code before they embark on crime. It merely means that if Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses, ..." (Id. 349 U.S. at pp. 83-84, 75 S.Ct. at p. 622.)

In this case, we...