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The People v. Leo James Patrick

July 31, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
LEO JAMES PATRICK, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F5415)

The opinion of the court was delivered by: Robie , J.

P. v. Patrick CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Police officers searched the home of Leo James Patrick in June 2010. Inside a toolbox on the master bedroom's balcony, officers found a collapsible baton (the tip of which was broken) with the word "'police' on the handle" that was a knock-off of the brand used by police. The officers arrested defendant, who told them he did not know that possessing the baton was illegal and that he was just fixing it for a friend. The officers at trial described the baton as a billy. Specifically, the officers described a billy as an item "used for impact" that could be a "straight stick[], expandable baton[], and so forth," and testified that the collapsible baton found in defendant's toolbox was a billy. A jury found defendant guilty of possessing a deadly weapon, a billy.

Defendant appeals from the resulting conviction, raising the following three contentions: (1) his conviction for possessing a billy violated the Second Amendment; (2) there was insufficient evidence he possessed a billy; and (3) trial counsel was ineffective. Disagreeing, we affirm.

DISCUSSION

I

Defendant Forfeited His Second Amendment Challenge

Defendant contends the prohibition on possessing a billy violated his Second Amendment right to bear arms, relying on District of Columbia v. Heller (2008) 554 U.S. 570 [171 L.Ed.2d 637]. There, the Court held that the Second Amendment confers an individual right to keep and bear arms for the purpose of self-defense. (Id. at pp. 626-627 [171 L.Ed.2d at p. 678].)

Defendant's contention is forfeited because he failed to raise it in the trial court. Defendant's trial postdated Heller by almost three years, so he could have raised the Heller issue then. (Cf. People v. Villa (2009) 178 Cal.App.4th 443, 448 [the "[m]ost important[]" reason the defendant "ha[d] the right to bring this Heller claim, even though he did not raise it in the trial court" was because the "defendant's trial predated Heller, making a timely objection impossible"]; People v. Yarbrough (2008) 169 Cal.App.4th 303, 310-311 ["the defense had no reason to challenge the statute on the grounds asserted here until the decision in Heller was issued after trial of the matter was concluded and judgment was entered"].) By failing to raise his Heller contention in the trial court, defendant's Second Amendment claim is forfeited.*fn1

II

There Was Sufficient Evidence Defendant Possessed A Billy

Defendant contends there was insufficient evidence he possessed a billy because a billy is a wooden stick and the stick here was not made of wood. He is wrong because there ...


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