(Super. Ct. No. 10WF0918) Appeal from a judgment of the Superior Court of Orange County, Daphne Sykes Scott, Judge.
The opinion of the court was delivered by: Moore, J.
CERTIFIED FOR PUBLICATION
Beware of the dangers of the Internet. It makes semiautomatic assault weapon kits available at the click of a mouse. Furthermore, it would appear to provide guidance on assembling the weapons, as well as suggestions for avoiding criminal convictions arising out of the possession of the parts, their assembly, and even the possession of the completed weapons. But woe betides the consumer who trusts every scheme espoused on the Internet.
Defendant Tien Duc Nguyen (defendant) was caught making an AK-47 from a kit. He was convicted of attempted unlawful assault weapon activity and attempted possession of an assault weapon (Pen. Code, § 664, subd. (a), former § 12280, subds. (a)(1), (b), repealed by Stats. 2010, ch. 711, § 4, p. 4036). Defendant appeals. He insists the statutory scheme will not support a conviction until the AK-47 is fully assembled and enables the shooter to fire repeated shots without reloading manually. Defendant fails to distinguish between the violation of Penal Code former section 12280, subdivisions (a)(1) and (b),*fn1 on the one hand, and the attempted violation of those statutes, on the other hand. We affirm.
Defendant was the owner of an auto repair shop. On March 17, 2010, Police Officer Brian Chapman, on assignment as a detective with the Orange County Auto Theft Task Force, went to defendant's business premises. Chapman informed defendant that he and other detectives in attendance intended to search the premises. As a matter of standard procedure, Chapman asked defendant if he had any weapons on site. Defendant responded that he had a hunting rifle he used for shooting pigs.
Defendant led Chapman to a fully assembled .50-caliber DTC rifle. According to Chapman, the rifle was not one that would typically be used for pig hunting. Rather, he expressed the opinion that "even calling it an elephant gun would be an understatement."
Chapman noticed that the rifle did not have a serial number or manufacturer name on it, so he asked defendant about it. Defendant explained to Chapman "that he had purchased the lower portion of the rifle that would typically have the serial numbers and manufacturing name off the Internet." Defendant further explained that the lower portion of the rifle, or the receiver, was not completed when he purchased it. He had to "machine it" or drill holes in it in order to finish it. Defendant stated that he had completed the drilling process and put the pieces of the rifle together himself. Chapman dry fired the rifle and determined that it ought to be in good working order.
Defendant also took Chapman to some .50-caliber DTC ammunition--the ammunition that went with the rifle. In addition, he showed Chapman some .50-caliber Beowulf ammunition. Defendant explained that the .50-caliber Beowulf ammunition went with a different rifle he had rented for pig hunting.
After that, Chapman asked defendant if he had any other weapons, and defendant told him he was building an AK-47. Defendant took Chapman to a box of AK-47 parts. Again, the receiver had no serial number or manufacturer name. Defendant explained that he had purchased an AK-47 flat receiver, and he opined that when one purchases an AK-47 flat receiver that has yet to be bent into shape, one does not have to register the firearm. He pulled up the AK-Builder.com Web site on his computer and showed Chapman the AK-47 flat receivers for sale. Defendant had already bent his flat receiver into shape for assembly, by using a vise or a flat bending dye set.
Chapman asked defendant if he knew it was wrong for him to have and make his own AK-47. Defendant admitted knowing it was wrong.
Chapman said he met with Rocky Edwards, of the Santa Ana Police Department forensics services department. The two of them went through the box of parts and compared them to an AK-47 diagram and checked to make sure all the parts of an AK-47 were present, which appeared to be the case. He also met with Sergeant Greg Schuch of the Orange County Sheriff's Department, and the two of them compared the box of parts to the parts of a working AK-47. Having done so, Chapman opined that all the parts necessary to build a working AK-47 were present. Indeed, defendant himself acknowledged having all the necessary parts. It appeared to Chapman that at least one more hole needed to be drilled into the receiver before the weapon could be completed.
Defendant was accused of attempted unlawful assault weapon activity
(§ 664, subd. (a), former § 12280, subd. (a)(1)), attempted possession of an assault weapon (§ 664, subd. (a), former § 12280, subd. (b)), possession of a firearm by a felon (former § 12021, subd. (a)(1), repealed by Stats. 2010, ch. 711, § 4, p. 4036), and possession of ammunition by a prohibited person (former § 12316, subd. (b)(1), repealed by Stats. 2010, ch. 711, § 4, p. 4036). It was also alleged, pursuant to section 667, subdivisions (d) and (e)(1) and section 1170.12, subdivisions (b) and (c)(1), that defendant was previously convicted of a serious and violent felony--a violation of former section 12025, subdivisions (a)(1) and (b)(3) (repealed by Stats. 2010, ch. 711, § 4, p. 4036).
He entered a guilty plea as to the third and fourth counts. He recited: "In Orange County, California, on March 17, 2010, having previously been convicted of a felony, I did own, purchase, receive, possess & have in my custody & control a firearm and ammunition & I knew I was prohibited from owning & possessing a firearm pursuant to Penal Code Sections 12021 & 12021 [sic] & Welfare & Institutions Code Sections 8100 & 8103." In addition, defendant admitted a prior conviction for violation of former section 12025, subdivisions (a)(1) and (b)(3).
The jury found defendant guilty of the first and second counts. The court sentenced defendant to a term of six years in state prison on the first count and stayed the sentence on the second count. It sentenced him to a term of four years on each of the third and fourth counts, with each sentence to be served concurrently to the sentence for the first count.
A. Right to Possess Unassembled Parts
Defendant first argues that the applicable statutory scheme permitted him to legally possess the unassembled parts of the AK-47 and that it was error to convict him of any crime under the first and second counts. In evaluating that argument, we turn to the statutes in question.
(1) Roberti-Roos Assault Weapons Control Act of 1989
Section 12275 et seq., as in effect at the time of sentencing, is known as the Roberti-Roos Assault Weapons Control Act of 1989 and the .50 Caliber BMG Regulation Act of 2004 (AWCA).*fn2 The purpose of that act is set forth in section 12275.5, subdivision (a), as follows: "The Legislature hereby finds and declares that the proliferation and use of assault weapons poses a threat to the health, safety, and security of all citizens of this state. The Legislature has restricted the assault weapons specified in Section 12276 based upon finding that each firearm has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings. It is the intent of the Legislature in enacting this chapter to place restrictions on the use of assault weapons and to establish a registration and permit procedure for their lawful sale and possession. It is not, however, the intent of the Legislature by this chapter to place restrictions on the use of those weapons which are primarily designed and intended for hunting, target practice, or other legitimate sports or recreational activities." (Former § 12275.5, subd. (a).)
Section 12280, subdivision (a)(1) provides in pertinent part: "(a)(1) Any person who, within this state, manufactures or causes to be manufactured . . . any assault weapon . . . is guilty of a felony, and upon conviction shall be punished by imprisonment in the state prison for four, six, or eight years." (Former § 12280, subd. (a)(1).) Section 12280, subdivision (b) provides in pertinent part: "Any person who, within this state, possesses any assault weapon . . . shall be punished by imprisonment in a county jail for a period not exceeding one year, or by imprisonment in the state prison. . . ." (Former § 12280, subd. (b).)
Several different statutes identify firearms that are classified as "assault weapons" for the purposes of the AWCA. One such statute is section 12276. Subdivision (a)(1) thereof defines the term "assault weapon" to include all "AK series" rifles, including without limitation certain AK-47's specified by manufacturer. Subdivision (e) thereof provides: "The term 'series' includes all other models that are only variations, with minor differences, of those models listed in subdivision (a), regardless of the manufacturer." (Former § 12276, subd. (e).) Another such statute is section 12276.5. Subdivision (b)(1) thereof required the Attorney General, until January 1, 2007, to promulgate a list containing certain additional firearms designated as "assault weapons." A third statute is section 12276.1, which describes a generic "assault weapon" by general characteristics.
Section 12276.1 is the statute at issue before us. Subdivision (a)(1) thereof provides that the term "assault weapon" also includes "[a] semiautomatic, centerfire rifle that has the capacity to accept a detachable magazine and any one of the following: [¶] (A) A pistol grip that protrudes conspicuously beneath the action of the weapon. [¶] (B) A thumbhole stock. [¶] (C) A folding or telescoping stock. [¶] (D) A grenade launcher or flare launcher. [¶] (E) A flash suppressor. [¶] (F) A forward pistol grip." (Former § 12276.1, subdivision (a)(1).)
(a) definition of "semiautomatic"
As is readily apparent, section 12276.1, subdivision (a)(1) does not expressly state whether a semiautomatic centerfire rifle must be fully assembled and operational in order to be characterized as an assault weapon. Defendant thinks the answer is obvious and claims the ability to fire is an essential feature of an "assault weapon" as defined in section 12276.1, subdivision (a)(1). He says the word "semiautomatic" necessarily connotes an ability to fire.
In support of his interpretation, defendant cites as persuasive authority section 12126, subdivision (e) and Silveira v. Lockyer (9th. Cir. 2003) 312 F.3d 1052 (criticized on another point in U.S. v. Vongxay (9th Cir. 2010) 594 F.3d 1111, 1116). Section 12126, subdivision (e) contains a definition of an "unsafe handgun," and under the umbrella of unsafe handguns, a further definition of "semiautomatic pistol," for the purpose of part 4, title 2, chapter 1.3 of the Penal Code. Subdivision (e) defines a "semiautomatic pistol" as "a pistol, as defined in subdivision (a) of Section 12001, the operating mode of which uses the energy of the explosive in a fixed cartridge to extract a fired cartridge and chamber a fresh cartridge with each single pull of the trigger." (Former § 12126, subd. (e).)
Silveira v. Lockyer, supra, 312 F.3d 1052 describes semiautomatic weapons in this manner: "In contrast to automatic weapons, only one bullet is fired when the user of a semi-automatic weapon depresses the trigger, but another is automatically reloaded into the gun's chamber. 27 C.F.R. § 178.11 (defining semiautomatic weapons). Thus, by squeezing the trigger repeatedly and rapidly, the user can release many rounds of ammunition in a brief period of time-certainly many more than the user of a standard, manually-loaded weapon. Moreover, the semi-automatic weapons known as assault weapons contain large-capacity magazines, which require the user of the weapon to cease firing to reload relatively infrequently because the magazines contain so much ammunition." (Silveira v. Lockyer, supra, 312 F.3d at p. 1057, fn. 1.)
Defendant does not claim that either the definition provided in section 12126, subdivision (e), or the definition contained in Silveira v. Lockyer, supra, 312 F.3d 1052, applies to the AWCA, found in part 4, title 2, chapter 2.3 of the Penal Code. However, he maintains that those definitions illustrate well the ...