Opinion
NOT TO BE PUBLISHED
Del Norte County Super. Ct. Nos. CRF 06-9661 & CRF 06-9673.
Retired Associate Justice of the Court of Appeal, First District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant Edwin Drew Stull appeals following his convictions for drug and weapon offenses. Among other things, he challenges the trial court’s instruction on possession of a dangerous weapon and admission of evidence regarding an uncharged drug possession offense. We affirm the trial court’s judgment.
Procedural Background
In November 2006, a jury convicted defendant of crimes charged in two informations. In case 06-9661, concerning offenses committed on September 8, 2006, defendant was convicted of possession of methamphetamine for sale (Health & Saf. Code, § 11378; count one), transportation of methamphetamine (Health & Saf. Code, § 11379; count two), possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1); count four), carrying a loaded firearm in a vehicle (Pen. Code, § 12031, subd. (a)(1); count five), possession of methamphetamine and a loaded firearm (Health & Saf. Code, § 11370.1; count six), driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a); count seven), and driving with .08% blood alcohol content or above (Veh. Code, § 23152, subd. (b); count eight). The jury also found defendant was personally armed with a firearm with respect to counts one and two (Pen. Code, § 12022, subd. (c)), and that he had suffered a 1995 felony conviction for narcotics transportation or sale (Health & Saf. Code, §§ 11370.2, 11379).
In case 06-9673, concerning offenses committed on September 15, 2006, defendant was convicted of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count one) and possession of a police-style telescoping baton, a dangerous weapon (Pen. Code, § 12020, subd. (a)(1); count two). In addition, the jury found that defendant had committed a felony while on bail for an earlier felony offense (Pen. Code, § 12022.1).
The trial court sentenced defendant to an aggregate prison term of 13 years and 4 months.
Factual Background
Around 1:00 a.m. on September 8, 2006, Crescent City Police Officer Eric Capon stopped a weaving car. The driver, defendant, had red eyes, the odor of alcohol on his breath, and slurred speech. Defendant said he had just left a bar and he had purchased the car he was driving three or four hours earlier without receiving a bill of sale. Defendant provided a Washington state vehicle registration. When Capon checked the registration, the dispatcher responded with a code indicating the VIN was associated with a stolen vehicle.
Capon placed defendant in custody. When he removed the passenger, Kenni Earls, from the car, he saw a handgun on the driver’s side floorboard. In Earls’ purse, Capon discovered a baggie of methamphetamine. Underneath the car’s back seat, a black canvas bag was recovered which contained a large amount of methamphetamine, a digital scale, 50 empty baggies, and other drug paraphernalia. Defendant had $2,684 on his person. After Capon’s search, it was learned that the stolen car code had been broadcast mistakenly.
Based on sobriety tests, Capon formed an opinion defendant was under the influence of alcohol. A blood sample taken at 2:25 a.m. contained .12% blood alcohol and was positive for methamphetamine. A search of defendant’s home disclosed more baggies, methamphetamine pipes, a small bag of marijuana, a small amount of psilocyn or psilocybin mushrooms, and a surveillance system. A sheriff’s deputy assigned to a drug task force testified that the quantity of drugs and cash discovered in defendant’s possession, coupled with the paraphernalia and weapons, were consistent with trafficking in methamphetamine.
In the early morning hours of September 15, 2006, Capon again stopped defendant and Earls. This time, according to Capon, the car being driven by defendant was exceeding the speed limit and weaving. Capon noticed that defendant had red eyes and the odor of alcohol on his breath. Inside the vehicle, Capon discovered a baggie containing a small amount of methamphetamine and a police-style baton. While being transported to jail, defendant volunteered that he did not realize the baton was illegal and that “the dope was an oversight.”
At trial, Capon described the baton as a steel “collapsible law enforcement baton.” “Collapsible” means the baton is “telescopic” or “extends.” He demonstrated for the jury how the baton functioned and explained that officers are trained in its use as an impact weapon to overcome resistance by violent suspects. Over objection from defense counsel, Capon offered that it was illegal for a civilian to own such a baton.
Earls testified that the methamphetamine found in her purse belonged to her, but not the other drugs or the weapons. She had witnessed defendant sell methamphetamine at a liquor store parking lot and at other people’s houses.
The prosecutor played for the jury a videotape of a recording from a casino’s surveillance system. A drug user named Rodney DeWolf testified that the videotape depicted defendant selling DeWolf a bag of methamphetamine.
To prove the prior conviction allegation, the prosecutor introduced a 1995 judgment and court minute order from the Shasta County Superior Court, which showed that Edwin Drew Stull was committed to a five-year prison term for transportation of a controlled substance while armed with a gun.
To prove the on-bail enhancement, the prosecutor introduced a certified copy of an agreement to appear with a $15,000 bail bond, dated September 8, 2006.
Discussion
I. Possession of a Dangerous Weapon
Penal Code section 12020, subdivision (a)(1), prohibits the possession of various dangerous weapons, including “any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sap, or sandbag.” The trial court instructed the jury, “The defendant is charged … with Possession of a Dangerous or Deadly Weapon in violation of [section] 12020 [subdivision] (a)(1) of the Penal Code, specifically possession of a police-style telescoping baton. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant possessed a telescoping baton, [¶] 2. The defendant knew that he possessed the telescoping baton, [¶] [AND] [¶] 3. The defendant knew that the object was a telescoping baton, which could be used for purposes of offense or defense. [¶] The People do not have to prove that the defendant used, or intended to use the object as a weapon.” (CALCRIM 2500.)
Jurors were properly instructed under Penal Code section 12020, subdivision (a)(1), which prohibits possession of a police baton. Although the statute does not expressly prohibit possession of a “baton,” the term “billy” has been interpreted broadly to encompass a wide range of bludgeoning implements. In People v. Grubb (1965) 63 Cal.2d 614, 621 (Grubb), our Supreme Court held the statute “embraces instruments other than those specially created or manufactured for criminal purposes; it specifically includes those objects ‘of the kind commonly known as a billy.’ ” The court concluded an altered baseball bat possessed by Grubb was usable as a billy and its possession violated the statute. (Ibid.; see also Id. at p. 620, fn. 7; People v. Canales (1936) 12 Cal.App.2d 215, 217.)
Although not binding on our court, we find the reasoning of People v. Mercer (1995) 42 Cal.App.4th Supp. 1 (Mercer) persuasive. Mercer held that possession of a collapsible baton was proscribed by Penal Code section 12020, subdivision (a)(1). (Mercer, at pp. 4-6.) There, a police officer recognized the defendant’s baton as a weapon used by the police as an offensive weapon. (Mercer, at pp. 4-5.) Mercer observed that although the baton was not listed as a prohibited item in the statute, it nevertheless was within the Webster’s New World Dictionary definition of a billy. (Mercer, at p. 5.) The court further cited an Attorney General’s opinion concluding that a police baton is within the class of weapons commonly known as a billy, possession of which is prohibited by the statute. (Id. at p. 6, citing 65 Ops.Cal.Atty.Gen. 120, 121 (1982).)
On appeal, defendant does not provide any reasoned argument disputing the general proposition that a police baton qualifies as a “billy” under Penal Code section 12020, subdivision (a)(1). Nevertheless, he contends the trial court had a duty to define “billy” in the instructions. We disagree. Whether a police baton is a “billy” under Penal Code section 12020, subdivision (a)(1) is a question of statutory interpretation for the courts to decide, rather than a factual determination for the jury. (Grubb, 63 Cal.2d at pp. 620-621 & fn. 8; see also Mercer, supra, 42 Cal.App.4th Supp. at p. 4; People v. Fannin (2001) 91 Cal.App.4th 1399, 1401-1402; People v. Canales, supra, 12 Cal.App.2d at pp. 217-218.) The trial court instructed jurors to consider whether the item at issue was indeed a police baton and whether defendant knowingly possessed it. (See CALCRIM 2500.) Those were the appropriate factual issues before the jury. Because police batons are prohibited under Penal Code section 12020, subdivision (a)(1) as a matter of law, there was no need to further define the term “billy” in the instruction.
Defendant next argues the court should have instructed the jury in the language of CALCRIM 2500, Alternative 3A, to determine whether he possessed the baton as a weapon, considering “all the surrounding circumstances . . . including when and where the object was possessed . . . and where the defendant was going, and 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.” This language is based on Grubb, supra, 63 Cal.2d at pp. 620-621, and People v. Fannin, supra, 91 Cal.App.4th at p. 1404. (CALCRIM 2500, Bench Notes.) Alternative 3A is not applicable to an “object designed solely for use as [a] weapon.” (CALCRIM 2500.) As the court of appeal explained in Fannin, the prosecution bears the burden of showing that an object was possessed as a weapon only “if the object is not a weapon per se.” (Fannin, at p. 1404.) Defendant suggests a police baton is not a weapon per se because a police officer in Mercer, supra, 42 Cal.App.4th Supp. at p. 5, testified that batons are sometimes used in martial arts. Again we must disagree. The use of a baton in a martial art is use of the baton as a weapon. As the officer testified in Mercer, the baton is a “weapon . . . used by police and martial arts as an offensive weapon used to strike.” (Ibid.) Because a police baton is a “weapon per se,” it necessarily follows that the prosecution did not bear the burden of showing that it was possessed as a weapon and the trial court was not required to instruct the jury with CALCRIM 2500, Alternative 3A, or its equivalent.
We also reject defendant’s claim that it was prejudicial error to permit Officer Capon’s testimony that it was illegal for the public to own the baton possessed by defendant. The critical factual issue before the jury was the nature of the item possessed by defendant. Capon testified that the item was a collapsible, or telescopic, police baton. Even if it was error to permit Capon to further testify that possession of the baton was illegal, any such error could not have prejudiced defendant because the trial court told the jury the same thing. In particular, the trial court properly instructed the jury that a police-style telescoping baton is a prohibited dangerous weapon. Capon’s testimony, which recounted the identical proposition, was harmless.
II. On-Bail Enhancement
Defendant was sentenced to a consecutive term of two years under Penal Code section 12022.1, the on bail enhancement . Defendant contends the jury’s finding regarding the enhancement is not supported by substantial evidence.
In determining whether the evidence is sufficient to support the verdict, we must review “ ‘the whole record in the light most favorable to the judgment’ and decide ‘whether it discloses substantial evidence . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (People v. Hatch (2000) 22 Cal.4th 260, 272.)
The jury had before it a “Bail Bond” dated September 8, 2006, which is the offense date in case 06-9661. The document indicates defendant was released on $15,000 bail on that date, for felony drug and weapon charges, with instructions to appear in October 2006. The felony offenses in case 06-9673 occurred on September 15, 2006. Substantial evidence supports the jury’s finding regarding the on bail enhancement.
III. Testimony Regarding Hallucinogenic Mushrooms
Defendant maintains the trial court erred in permitting a criminalist to testify that 4.98 grams of mushrooms found in his home contained psilocyn or psilocybin, which are illegal hallucinogens (Health & Saf. Code, § 11054, subds. (d)(18) & (19)), because the evidence was not relevant to any contested issue at trial.
Assuming admission of the testimony was error, the error was harmless. Defendant does not argue admission of the evidence was prejudicial vis-à-vis his conviction for possession of methamphetamine for sale. As defendant recognizes, the evidence supporting that count was overwhelming. Defendant’s reply brief states, “On the issue of intent to sell, the prosecution presented evidence from Earls that [defendant] was a dealer in meth; evidence from DeWolf that [defendant] had sol[d] him methamphetamine; and evidence from two police experts that the amount of the meth found in [defendant’s] possession, plus the accompanying paraphernalia, and the presence of video surveillance equipment, indicated that [defendant] possessed the methamphetamine for sale.”
Instead, defendant contends the evidence of the hallucinogenic mushrooms was prejudicial vis-à-vis his conviction for possession of a dangerous weapon. The contention is without merit. The evidence supporting that count was solid and uncontroverted. Indeed, during closing arguments below, defense counsel conceded the prosecutor had proved defendant’s guilt on the dangerous weapon count. Compared to the more prejudicial evidence that defendant possessed a firearm and a large quantity of methamphetamine, his uncharged possession of a small amount of hallucinogenic mushrooms was of de minimis prejudicial effect. It is not reasonably probable exclusion of testimony that defendant possessed hallucinogenic mushrooms in his home would have led to a more favorable outcome. (People v. Carter (2005) 36 Cal.4th 1114, 1152.)
IV. Consecutive Sentencing
Finally, Defendant argues imposition of consecutive sentences as to the prison terms imposed in case 06-9661 and case 06-9673 constituted error under Cunningham v. California (2007) 549 U.S. --- [127 S.Ct. 856]. In People v. Black (2007) 41 Cal.4th 799, 823, our Supreme Court stated, “[t]he high court’s decision in Cunningham does not call into question the conclusion we previously reached regarding consecutive sentences. The determination whether two or more sentences should be served in this manner is a ‘sentencing decision[ ] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ and does not ‘implicate[ ] the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.’ [Citation.] Accordingly, we again conclude that defendant’s constitutional right to jury trial was not violated by the trial court’s imposition of consecutive sentences . . . .” Defendant concedes this court is bound to follow Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Disposition
The judgment is affirmed.
We concur: JONES, P. J., SIMONS, J.