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People v. Liscotti

Superior Court of California, Appellate Division, Ventura

January 7, 2013

THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent,
v.
DAVID EDWARD LISCOTTI Defendant and Appellant

Pub. Order 2/5/13, opn. received from app. div. 8/30/13

APPEAL from a judgment from the trial court in the Superior Court of Ventura County, Case Number 2010043342 Honorable Ryan Wright, Judge.

Caroline Sommers, Deputy District Attorney from the Office of the District Attorney, for Plaintiff and Respondent.

Ken Hamilton, Deputy Public Defender from the Office of the Public Defender for the Defendant and Appellant.

BY THE COURT:[*]

STATEMENT OF CASE

On March 6, 2012, Appellant agreed to a court trial on charges that he possessed a ‘billy’ in violation of Penal Code Section 12020(a)(1), now renumbered Penal Code Section 22210. The prosecution submitted on police reports and exhibits, both of which are contained in the record on appeal. Appellant testified at the trial and claimed that he possessed the ‘billy’ in anticipated ‘self defense.’ He admitted to altering the baseball bat by wrapping it in nylon, boring a hole in the center of the bat, and placing a metal bolt in the core of the bat. Appellant had used the billy once before in a, “Private one-on-one.” At the conclusion of the trial, Appellant asked the Honorable Judge Ryan Wright to declare Penal Code Section 12020(a)(1) unconstitutional. Judge Wright requested briefing on the matter and on March 20, 2012, declared that the Second Amendment of the United States Constitution did not apply to the weapon involved in Appellant’s case. Judge Wright further declined to rule the statute unconstitutional.

GROUNDS ON APPEAL

Is possession of a billy, of this nature, protected by the Second Amendment of the United States Constitution, and, if so, is Penal Code Section 12020(a)(1) unconstitutional as a result?

DISCUSSION

A.

IS POSSESSION OF A BILLY PROTECTED BY THE SECOND AMENDMENT OF THE UNITED STATES CONSTITUION?

The Second Amendment “Confers an individual right to keep and bear arms, at least for the core purpose of allowing law-abiding citizens to ‘use arms in defense of hearth and home.” District of Colombia v. Heller (2008) 554, U.S. 570 128 S.Ct. 2783, 2821. The right is not absolute or unlimited. It does not extend to all types of weapons and is only extended to types of weapons ‘typically possessed by law-abiding citizens for lawful purposes.’ Heller, supra, at 2814. There is a historical exception to the right to bear arms reflecting a prohibition of the right to carry ‘dangerous and unusual’ weapons. Heller, supra, at 2817. “…The Heller court recognized that the right to bear arms in self defense, like most constitutional rights, is not unlimited. (cites omitted.) ‘The right is [is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.’ ” People v. Mitchell (2012) 209 Cal.App.4th 1364, 1373. There have been longstanding prohibitions imposed upon rights under the Second Amendment, including limitations on which people have the right to bear arms and restrictions upon locations where they may be possessed. Likewise, the Heller court made it clear that laws regulating possession of dangerous and unusual weapons are not constitutionally suspect because weapons that fall in to this category are not protected by the Second Amendment. United States v. Marzzarella (2010) 614 F.3d 85, 91.

Weapons that are dangerous and unusual are those weapons that are not, “…Typically possessed by law-abiding citizens for lawful purposes.” Heller, supra at 2816. In order to be classified as a weapon that is normally possessed by a law abiding person, for legitimate purposes, there needs to be some showing, factually, that the possession or use of the weapon, “…Has some reasonable relationship to the preservation or efficiency of a well regulated militia.” United States v. Miller (1939) 307 U.S. 174, 178 (Transportation of a shotgun with a barrel less than 18 inches in length.) Although counsel argues in his appellant’s brief that weapons such as these have been carried since the beginning of time, no evidence was introduced to that effect at the trial on this matter. Judicial notice of an important fact needs some substantiation based on evidence presented at a trial. (As an aside, historically, it appears to this court that billys, as used by the cavemen, were used primarily for hunting and for defense against animals, not as weapons for self defense against other cavemen. Or, if they were used against other cavemen, it was probably an escalation in use of force to gain an advantage, which would now ...


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