IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
July 31, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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
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 is no requirement a billy be made of wood.*fn2
People v. Mercer (1995) 42 Cal.App.4th Supp. 1 is instructive. There, the court held that a collapsible baton was a billy. (Id. at p. 5.) The defendant in Mercer described the item at issue as a "truck antenna" and the policeman described it as "'weapon commonly known as a [collapsible] baton. The weapon, when extended by a flick of the wrist, is extended and used as a club. [¶] I have seen this weapon on several occasions and it is used by police and martial arts as an offensive weapon used to strike.'" (Ibid.) The court held that "possession of such an item is proscribed by section 12020, subdivision (a). [¶] We note that Webster's New World Dictionary defines a 'billy' as 'a club or heavy stick; truncheon, esp. one carried by a policeman.' (Webster's New World Dict. (2d college ed. 1986) p. 141.) A 'truncheon' is defined as '1. a short, thick cudgel; club 2. any staff or baton of authority 3. . . . a policeman's stick or billy . . . .' (Id. at p. 1527.) The item which appellant was carrying fits into these definitions." (Mercer, at p. 5.)
Nothing in these definitions requires a billy to be made of wood. Rather, the baton here fit within the definitions quoted above and was very similar to the one in Mercer. It was a "collapsible baton" that extended out in a "rigid, fixed manner" with the word "'police'" on the handle that was a "knock-off" of the brand used by police. Nothing more was required to qualify it as a billy.*fn3
Defendant requests we take judicial notice of several dictionary definitions of the term "billy" or "billy club" that refer to a billy being made out of wood. We grant this request (see Evid. Code, § 451, subd. (e) [judicial notice shall be taken of "[t]he true signification of all English words and phrases and of all legal expressions"]), but it does not assist defendant. Even in those definitions to which defendant cites, a billy or billy club is defined variously, sometimes with reference to being made out of wood (Merriam-Webster's Collegiate Dict. (11th ed. 2009) p. 122, col. 1 ["a heavy usu. wooden club"]); sometimes with reference to being a police officer's club or baton (Dictionary.com, available online at http://dictionary.reference.com/browse/billy?s=t&ld=1087 [as of July 23, 2012] ["a police officer's club or baton"]); or sometimes with reference to being used for protection or defense (Webster's New Complete Desk Reference Book (1993) p. 33, col. 1 ["A short wooden club used for protection or defense"]). Simply because some definitions refer to a billy as being made out of wood or usually made out of wood does not mean that the statutory definition of the "billy" requires it to be made of wood.
Trial Counsel Was Not Ineffective
Defendant contends trial counsel was ineffective for failing to object to the officers' expert testimony on the definition of a billy and on the issue of defendant's guilt. The testimony with which defendant now takes issue was that a billy was an item "used for impact" and could be a "straight stick, expandable baton, and so forth," and that the collapsible baton found in defendant's toolbox was a billy.
In defendant's mind, this testimony was similar to that in People v. Torres (1995) 33 Cal.App.4th 37. In Torres, a police officer gave his definitions of robbery and extortion and expressed the opinion that the defendant was guilty of robbery. (Id. at p. 42.) The appellate court held it was error to admit the officer's definition of these statutory terms and his opinion because the jury was just as competent as an expert to consider the evidence and draw the necessary conclusions. (Id. at p. 47.) The court added, however, "There are some crimes a jury could not determine had occurred without the assistance of expert opinion as to an element of the crime. Robbery and extortion, however, are not among them. Neither, unfortunately, is 'sufficiently beyond common experience' that the jury needs an expert to determine whether they have been committed." (Ibid., fn. omitted.)
Torres is distinguishable. The officers here did not testify as to the definition of the crime or give their opinions on defendant's guilt. Rather, they explained the meaning of a term (billy) that might not have been familiar to the jury and offered their opinion as to whether the object here was one. Expert testimony on matters that may be beyond the common experience of the jury is appropriate. (See, e.g., People v. Clay (1984) 153 Cal.App.3d 433, 459 [expert testimony is properly admitted that injuries qualified as great bodily injuries, even though it embraced the ultimate issue to be decided by the trier of fact, because lay jurors may not understand the gravity of certain injuries].) Because there was nothing objectionable about the expert testimony here, defense counsel was not ineffective for failing to object.
The judgment is affirmed.
We concur: HULL , Acting P. J. BUTZ , J.