1

Filed 2/9/18 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent,

v. COR E Y V. BAUGH, Defendant and Appellant. A145675
(Contra Costa County Super. Ct. No. 51424738)

Defendant Cor e y 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 prosecu tion 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 f riend and neighbor . Although the car was owned by someone else
, Bau gh regularly drove it.
Officer Jonathan Colburn made the traffic stop when he saw the car had an inoperable headlight

. S ergeant David Schroer, providing backup, alerted Officer Colburn

to a .22 caliber round he spotted in the coin tray. In addition, Officer Colburn n oticed the
car’s ignition switch wa s torn out. Suspecting a vehicle theft, he ordered Baugh out of
the car and began a search.

1 All further statutory citations are to the Penal Code unless noted otherwise.2

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 “j umped” 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 wa s a billy

. In his defense, Baugh claim ed 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 fo r his work
as a commercial truck driver. He explained that commercial truck drivers always check the air press ure of the ir truck tires as part of a routine “pre

- trip” safety inspection
, which
entails thump ing the tires with a small wooden bat and listen ing 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 stu ff 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.3

T he People countered that Baugh’s version of events was implausible
, and offered
an alternative view of his intent based on the circumstances

. A t 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 out side 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 with in 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, t he jury accepted the People’s view of the evidence and re turn ed a guilty verdict

. I t 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 st ruck the charged
strike prior pursuant to section 1385
, and placed Baugh on formal probation for three

years . T his 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.) 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.) In construing the relevant statute , “[w]e must select the construction that comports most closely with the apparent intent of the L egislature, with a view to promoting rather than defeating the general purpose of the statute, and4

avoid an interpretation that would lead to absurd consequences .” ( People v. Jenkins ( 1995 ) 10 Cal.4th 234, 246.) In this case, t he court instructed under C ALCRIM 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 fr om its standard form, and any other evid ence 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. S ection
22210 criminal izes possession of all dangerous weapons, not just the ir use or the intent to
use them. Thus, t he cases decided under s ection 22210 (e.g. , People v. Huynh (Jan. 19, 2018, H042184 ) ___ Cal.App.5th ___ [ 2018 Cal.App. L exis 41 , at pp. *38

– *45] [mini sledgehammer] ( Huynh ); People v. Davis (2013) 214 Cal.App.4th 1322, 1328

– 1329 [modified baseball bat] ( Davis )), and its predecessor statute, former s ection 12 0 20, subdivision (a) (e .g., People v. Grubb (1965) 63 Cal.2d 614, 620

– 621, fn. 9 [broken
baseball bat] ( Grubb ); People v. Fannin (2001) 91 Cal.App.4th 1399, 14 04 [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 p ossessed the object as a weapon

. 2

2 Operative January 1, 2012, former section 12020 was repealed (Stats. 2010, ch. 711, § 4) and the pertinent portions were reenacted without substantive change in section 22210. ( See People v. Brown (2014) 227 Cal.App.4th 451, 454, fn. 1.)5

Gru bb established the applicable test for determining whether a defendant has the

requ isite intent for felony weapons possession where , as here, the object at issue has a
lawful use. ( Grubb
, supra , 63 Cal.2d at p p

. 619

– 622 & fn. 9 .) Rejecting a claim th at former s ection 12020 was void for vagueness
, our Supreme Court in Grubb found that
, on the facts presented there, possession of a broken baseball bat constitute d illegal possession of a billy
, without regard to the possessor’s intent to use it as a weapon

. ( Id. at pp. 6 19

– 622 .) 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 kin d of instrument proscribed by the statute.” ( Id. at pp. 617

– 6 18.)
The Grubb c ourt ultimately revers ed the defendant’s conviction b ased on a postarrest confession elicited in violation of his right to counsel and privilege against
self

- incrimination ( Grubb
, supra , 63 Cal.2d at p p . 617

– 618 , 622 ) , but in the course of discussing the issue of facial constitutionality
, the c ourt 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 c ourt 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 very well increase the risk of
violence. Hence we must, if possible, sustain the constitutionality of a statute desi gned for the salutary purpose of checking the possession of objects subject to dangerous use.” ( Id . at p. 620.) Sustaining the constitutionality of former section 12020
, the c ourt pointed out that
while a defendant may seek to “ justify his possession of an instrument found under suspicious circumstances by proof of his intent to use it in accordance with its ordinary legitimate design” ( Grubb
, supra , 63 Cal.2d at p. 62 1 , fn. 9) , “[t]he prosecution need not show the intent of the possessor to use an instrument in a violent manner

. ” ( I bi d .) “ T he concomitant circumstances may well proclaim the danger of even the innocent

- appearing6

utensil. The Legislature thus decrees as criminal the possession of ordinarily harmless objects when the circumstances of possession demonstrate an immediate atmosphere of danger

. ” ( Id. at p. 621, italics added.) I ncluded among these circumstances , the c ourt explained, are “ the time, place, destination of the possessor, the alteration of the object from standard form, and other relevant facts indicat[ing] that the possessor would use the object for a dangerous, not harmless, purpose.” ( Id. at pp. 620

– 621.) 3

In Fannin , which illustrates the Grubb “circumstances of possession” test in application, t he object at issue was a metal chain with a padlock attached to one end

. ( Fannin , supra , 91 Cal.App.4th at pp. 1400

– 1401

. ) T he defendant tried to explain that the chain and padlock were necessary for securing his bicycle, but his bicycle and padlock key were at home when he was arrested. ( Id. at p. 1401. ) And h e admitted to a police officer he was carrying the device for self

- defense because “someone had tried to ‘punk’ him the day before.” ( I bi d. ) Affirming a conviction for possession of a slungshot,

t he court concluded t his admission “identified the bicycle lock as a weapon, and brought it within the class of objects prohibited” by the statute. ( Id. at p. 140 5 .)
The Fannin court held that “[i]ntent to use a weapon is not an element of the crime of weapon possession. ‘P roof of possession alone is sufficient.’ [Citation.] However, i f the object is not a weapon per se, but an instrument with ordinary innocent uses, the prosecution must prove that the object was possessed as a weapon . The only way to
meet that burden is by evidence ‘indicat[ing] that the possessor would use the object for a dangerous, not harmless, purpose.’ [Citation.] The evidence may be circumstantial, and may be rebutted by the defendant with evidence of ‘innocent usage.’ ” ( Fannin , supra , 91 Cal.A pp.4th at p. 1404.) “ Intended use is not an element of weapon possession, but the prosecution always bears the burden of proving that the defendant possessed a

3 By way of example, the c ourt explained that , under this test, “ the statute would encompass t he possession of a table leg, in one sense an obviously useful item, when it is detached from the table and carried at night in a ‘tough’ neighborhood to the scene of a riot. On the other hand the section would not penalize the Little Leaguer at bat in a baseball game.” ( Grubb
, supra , 63 Cal.2d at p. 621.)7

weapon ” ( ibid. ) , a burden it may carry “with circumstantial evidence

. . . or with the defendant’s statements explaining why he carried the object.” ( Id . at p. 1406.)
In the face of th is well

- established case law, Baugh argues “if the object in evidence is capable of innocent usage, then the question of the possessor/defendan t’s intent to use [ it ] as a weapon comes into play.” He relies on In re Kevin F. , w here, discussing People v. Raleigh (1932) 128 Cal.App. 105 ( Raleigh ) , we pointed out that “what is and what is not a de facto weapon turns in part on intent to use the item for a dangerous or deadly purpose

. ” ( In re Kevin F. (2015) 239 Cal.App.4th 351, 361 ( Kevin
F .) , disapproved on other grounds in People v. Hall (2017) 2 Cal.5th 494 ( Hall ) .) The holding in Kevin F. , to the extent it remains good law after Hall
, has no bearing on the
issue before us because it concerns the definition of a “dangerous or deadly weapon” in the context of a probation condi tion prohibiting its possession ( Kevin F. , supra , 239 Cal.App.4th at pp. 360

– 361 )

. In Raleigh
, a lodestar Court of Appeal case discussed in Kevin F

. — and, more importantly, by our Supreme Court in Grubb
, which described Raleigh as having enunciated a definition of the term “billy” similar to its own definition (see Grubb
, supra , 63 Cal.2d at p. 621
, fn. 8)

— the appellate panel wrote, “When it appears

. . . that an instrumentality other than one falling within the first class is capable of being used in a ‘dangerous or deadly’ manner, and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require , we believe that its character as a ‘dangerous or deadly weapon’ may be thus established, at least for the purposes of that occasion.” ( Raleigh
, supra , 12 8 Cal.App. at pp. 108

– 1 09 , italics added.) Prefiguring Grubb
, Raleigh made clear that possessing an object with the intent to use it as a dangerous or deadly weapon should the circumstances require amount s to illegally possessing it as such

. ( Ibid. ) Thus, c ontrary to Baugh’s reading of Raleigh
, that case is consistent with the rule more fully articulated in Grubb that , depending on the circumstances, an ordinary object

may constitute a weapon if the defen dant possesses it as a weapon. As we explained in
Kev in F. , “conviction for possession of a concealed dirk or dagger does not require8

specific intent to stab anyone with such an instrument.” (See Kevin F. , supra , 239 Cal.App.4th at p. 365, citing People v. Rubalcava (2000) 23 Cal.4th 322, 328, 332 ( Rubalcava ) [affirming a conviction for carrying a concealed dirk or dagger even though the defendant auto mechanic claimed the knife was one of his tools] .) And as the Sixth District recently held, “imminent use of the object in a harmful manner does not have to be established to show unlawful possession. ” ( Huynh
, supra , ___ Cal.App.5th ___ [ 2018 Cal.App. L exis 41 , at p. *44 ] .) A common variation on the word “weapon
, ” employ ing it as a transitive verb, is the term “to weaponize” something, meaning to ada pt it for use as a weapon. (Merriam

Webster Dictionary Online (2018) <https://www.merriam

webster.com/dictionary/weaponize> [as of February 8 , 2018].) I n light of the fact Baugh kept a wooden bat by his side, at the ready, under circumstances in which an inference
could be drawn that he felt the need for a weapon and had a willingness to use it , we think a rational jury could have found the bat was in his possession because he viewed it

as weaponized

— in short, it was a useful cudgel

— not because he had some innocent use
in mind

. 4 The People bore no burden to show he had an immediate plan to use it as a weapon, only that the circumstances s howed he w ould do so if the need arose. (See

4 Relevant to the overall context here was Baugh’s testimony about the prior incident in which he was “jumped,” since it suggested not only that he had an expectation of p ossible combat while driving in his neighborhood, but that he is a pugnacious character with a history of assaultive conduct using weaponized objects. Baugh testified that a week or two before the traffic stop that led to his arrest, he was “ socked in the face” in the Cavalier at an intersection near his mother’s home, and “know[ing] how to defend [himself],” got out of the car because he was not “going to put up with that.” After getting out, he said, he got into a fight with 20 older men, who had moved in to the neighborhood recently, were trying to “bully the neighborhood,” and appeared to be “up to no good.” He was left with a “black eye” and “about 47 lumps on my head from being kicked and stomped.” The jury also heard testimony from Officer Colburn that Baugh was “defiant” and “argumentative” during the traffic stop and that he had a prior felony conviction for assaulting an officer with a deadly weapon by “striking a police officer’s car with [his] car deliberately.” (See People v. Claborn (1964) 2 24 Cal.App.2d 38, 41

– 42 [ defendant who intentionally rammed his car head

- on into a n occupied police car was guilty of assault with a deadly weapon] .)9

Grubb
, supra , 63 Cal.2d at p. 622 [bat found to be billy m ay have been “[c]onceived for peaceful purposes, [but] it was wrapped in the indicia and circumstance of probable
assault ”] .) 5 Nor were the People obliged to show th at Baugh’s bat had been physically altered from its original form to enhance its utility as a weapon, as was the case with the bats
involved in both Grubb
, supra , 63 Cal.2d at p age 616 ( “[t]he last few inches of the handle had been broken from the bat; the instrument was 20 inches long, taped at th e smaller or handle end, an d heavier at the unaltered end”) and Davis , supra , 214 Cal.App.4th at page 1325 ( “[a] number of holes had been drilled partially through the handle, and it had a leather wrist strap ” )

. “[A]lteration of the object from standard form”
is but one of a list of considerations the Grubb court mentioned may be relevant to the “circumstances of possession” test. ( Grubb
, supra , 63 Cal.2d at p. 620.) In this case,

e xpert testimony was presented at trial that a billy is a n “extremely short

. . . 12

– 18

- inch
solid wood club ” that is “easily concealable” and that may be used as an “impact weapon.” The bat found tucked next to the driver’s seat here may have had other, peaceful uses, but there is no dispute it met th is physical description. When considered in the context of circumstances suggesting Baugh had th e bat close at hand , ready to meet
his felt need for a weapon, we have no trouble concluding there was enough evidence to
convict him on Count Three under the instructions as given. Relying on guidance in the Use Notes, Baugh insists these particular instructions
were defective because CALCRIM No. 2500 in terms require s the prosecution to prove
he intended to use his bat as a weapon

. He bases t his c ontention on the language, “The People do not have to prove that the defendant intended to use the object as a weapon,”
which he correctly points out is subject to the explicit caveat that it should be given “only

5 Cf. People v. Stiltner (1982) 132 Cal.App.3d 216, 230 ( “A person is ‘armed’ with a deadly weapon when he simply carries a weapon or has it available for use in either offense or defense. [Citation.] The evidence shows the knife was carried by defendant in his back pocket, thus available for immediate use for offense or defense. The statute at issue [sec tion 12022.3] does not require a defendant actually use the weapon for offense or defense, just that he carry it in a manner available for such use.”)

.10

if alternative 3 B ”

— the scenario involving an object designed for exclusive use as a
weapon

— “ is given.” (CALCRIM No. 2500.) By negative inference, Baugh suggests, instructional language designed only for Alternative 3B cases is in appropriate where, as here, the object in question has a lawful use

. W ithout offering any explanation for why
the CALCRIM No. 2500 Use Notes draw this apparent distinction, the Attorney
General ’s response to Baugh’s reading of CALCRIM No. 2500 is blunt: He contends “[t]he implication [in CALCRIM No. 2500] that the instr uction should not be given absent such a finding [that A lternative 3B applies ] does not make it the law.” We agree with the Attorney General here

. T o the extent CALCRIM No. 2500 suggests something different from the rule laid down in an unbroken line of precedent over many decades in weapons possession cases involving objects capable of innocent

use, as that rule was announced in Grubb and as it has been applied in Fannin , Davis and Huynh , among other cases, it suffices to note that the CALCRIM pattern ju ry instructions are “not themselves legal authority.” ( People v. Johnson (2016) 243 Cal.App.4th 1247, 1269; see People v. Morales (2001) 25 Cal.4th 34, 48, fn. 7 [“[J] ury instructions, whether published or not, are not themselves the law, and are not authority to establish legal propositions or precedent. They should not be cited as authority for legal principles in appellate opinions. At most, when they are accurate,

. . . they restate the law

. ”].) In any event, t he Authority section following CALCRIM No. 2500 states the
correct rule: “Need Not Prove Intent to Use ,” citing Rubalcava
, supra, 23 Cal.4th at
page 328 and Grubb
, supra , 63 Cal.2d at pages 620

– 621, footnote 9

. That supplementary
section to CALCRIM 2500 also provides: “Innocent Object

— Must Prove Possessed as Weapon ,” citing Grubb
, supra , 63 Cal.2d at pages 620

– 621 and Fannin , supra , 91 Cal.App.4th at page 1404

. (Authority to CALCRIM No. 2500.) The Commentary to CALCRIM No. 2500 explains further: “ ‘Intent to use a weapon is not an element of the crime of weapon possession.’ ( People v. Fannin [ , supra ,] 91 Cal.App.4th [at p.] 1404

. . . .) However, interpreting now

- repealed Penal Code section 12020(a)(4), possession of a concealed dirk or dagger, [our] Supreme Court stated that ‘[a] defendant who does not know that he is carrying the weapon or that the concealed instrument may be used as a11

stabbing weapon is . . . not guilty of violat ing [forme r] section 12020.’ ([ Rubalcava
, supra ,] 23 Cal.4th [at pp.] 331

– 332 . . . .) Applying this holding to possession of other

weapons prohibited under now

- repealed Penal Code section 12020(a), the courts have
concluded that the defendant must know that the o bject is a weapon or may be used as a weapon, or must possess the object ‘as a weapon.’ ( People v. Gaitan (2001) 92 Cal.App.4th 540, 547 . . . ; People v. Taylor (2001) 93 Cal.App.4th 933, 941 . . . ; People

v. Fannin , supra , 91 Cal.App.4th at p. 1404.)” (Com. to CALCRIM No. 2500.) Finally
, Baugh argues, “ Telling the jury that it need not consider the defendant’s intent regarding possession of an object which has other and lawful uses than as a weapon identified by statute invites the jury to ignore ra ther than compare and consider a critical part of the defense case.” In effect, he argues, “Baugh was not allowed to have his jury consider his intention in possessing the tire thumper cum billy

. . . . ” This last line of argument, too, is meritless. It is inaccurate t o say the trial court told the jury Baugh’ s intent regarding his possession of the small wooden bat may go ignored

. In fact
, the jury was told to “ consider all the surrounding circumstances ” t o determine “whether the defendant possessed the object as a weapon

. ” The added instruction that the People were not required to pro ve intent to use the object as a weapon was consistent with this guidance, and was an accurate statement of law.
In Rubalcava, supra
, 23 Cal.4th at page 329, o ur Supreme C ourt d eclined an invitation to declare weapons possession in violation of former section 12020, subdivision (a), a specific intent crime

. There, t he defendant argued that not requiring specific intent would unfairly “ make a felon out of . . . ‘the auto mechanic who absentmindedly slips a utility knife in his back pocket before going out to lunch [,] .

. . [or] the parent who wraps a sharp pointed knife in a paper towel and places it in his coat to carry into a PTA potl uck dinner [

. ]’ ” ( Rubalcava, supra, at p

. 331 .) While

a cknowledging “the potentially broad reach of [the statute] in the absence of a specif ic intent element is troubling ,” the c ourt nevertheless deferred to the Legislature . ( I bi d. ) We view the issue presented here in the same way. The Legislature enacted
section 22210 to criminalize the possession of dangerous weapons

. The Grubb court’s12

articulation of the l egis lative intent behind that offense more than 50 years ago re mains
valid today, as does the “circumstances of possession” test announced there

. W here an object charged to be a dangerous weapon has a lawful use, the prosecution must prove the defendant possessed it as a weapon. Because i mposing an additional requirement of proof of intent to use the object as a weapon “would threaten to narrow the enforceable scope of [the statute] unwisely” ( Rubalcava
, supra , 23 Cal.4th at pp. 337

– 3 38 (conc. opn. of Werdegar, J.))
, any argument that violation of s ection 22210 should be vie wed as a specific intent crime is best directed to the Legislature

. We decline to adopt it by judicial
construction.
III. DISPOSITION
A ffirmed.13 _________________________ Streeter, J.

We concur:

_________________________ Ruvolo, P.J.

_________________________ Reardon, J.14

A145675 / People v. Baugh15

A145675/ People v. Baugh

Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Diana Becton

Counsel:
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, Su pervising Deputy Attorney General for Plaintiff and Respondent.