People v. Baugh
People v. Baugh
Opinion of the Court
*440Defendant Corey V. Baugh appeals a judgment entered on a jury verdict finding him guilty of possessing a billy club ( Pen. Code,
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 friend and neighbor. Although the car was owned by someone else, Baugh regularly drove it.
Officer Jonathan Colburn made the traffic stop when he saw the car had an inoperable headlight. Sergeant David Schroer, providing backup, alerted Officer Colburn to a .22 caliber round he spotted in the coin tray. In addition, Officer Colburn noticed the car's ignition switch was torn out. Suspecting a vehicle theft, he ordered Baugh out of the car and began a search.
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 *441Baugh into custody. While being transported to jail in handcuffs, Baugh complained of rib pain due to being "jumped" 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 was a billy. In his defense, Baugh claimed 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 for his work as a commercial truck driver. He explained that commercial truck drivers *900always check the air pressure of their truck tires as part of a routine "pre-trip" safety inspection, which entails thumping the tires with a small wooden bat and listening 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 stuff 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.
The People countered that Baugh's version of events was implausible, and offered an alternative view of his intent based on the circumstances. At 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 outside 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 within easy reach from the driver's seat. Highlighting Baugh's statement that *442he 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, the jury accepted the People's view of the evidence and returned a guilty verdict. It 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 struck the charged strike prior pursuant to section 1385, and placed Baugh on formal probation for three years. This 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)
In this case, the court instructed under CALCRIM 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 *901circumstances relating to that question, including when and where the object was possessed[,] ... where the defendant was going, ... whether the object was changed from its standard form, and any other evidence 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.) *443Although 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. Section 22210 criminalizes possession of all dangerous weapons, not just their use or the intent to use them. Thus, the cases decided under section 22210 (e.g., People v. Huynh (Jan. 19, 2018, H042184)
Grubb established the applicable test for determining whether a defendant has the requisite intent for felony weapons possession where, as here, the object at issue has a lawful use. ( Grubb , supra , 63 Cal.2d at pp. 619-622 & fn. 9,
The Grubb court ultimately reversed the defendant's conviction based on a postarrest confession elicited in violation of his right to counsel and privilege against self-incrimination ( Grubb , supra , 63 Cal.2d at pp. 617-618, 622,
Sustaining the constitutionality of former section 12020, the court 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. 621, fn. 9,
In Fannin , which illustrates the Grubb "circumstances of possession" test in application, the object at issue was a metal chain with a padlock attached to one end. ( Fannin , supra , 91 Cal.App.4th at pp. 1400-1401,
The Fannin court held that "[i]ntent to use a weapon is not an element of the crime of weapon possession. 'Proof of possession alone is sufficient.' [Citation.] However, if 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.App.4th at p. 1404,
In the face of this well-established case law, Baugh argues "if the object in evidence *903is capable of innocent usage, then the question of the possessor/defendant's intent to use [it] as a weapon comes into play." He relies on In re Kevin F. , where, discussing People v. Raleigh (1932)
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,
Thus, contrary 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 defendant possesses it as a weapon. As we explained in Kevin F. , "conviction for possession of a concealed dirk or dagger does not require specific intent to stab anyone with such an instrument." (See Kevin F. , supra , 239 Cal.App.4th at p. 365,
A common variation on the word "weapon," employing it as a transitive verb, is the term "to weaponize" something, meaning to adapt it for use as a weapon. (Merriam-Webster Dictionary Online (2018) < https://www.merriam-webster.com/dictionary/weaponize> [as of February 8, 2018].) In 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.
Nor were the People obliged to show that 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 page 616,
Relying on guidance in the Use Notes, Baugh insists these particular instructions were defective because CALCRIM No. 2500 in terms requires the prosecution to prove he intended to use his bat as a weapon. He bases this contention 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 if alternative 3B"-the scenario involving an object designed for exclusive use as a *905weapon-"is given." ( CALCRIM No. 2500.) By negative inference, Baugh suggests, instructional language designed only for Alternative 3B cases is inappropriate where, as here, the object in question has a lawful use. Without 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 instruction should not be given absent such a finding [that Alternative 3B applies] does not make it the law."
We agree with the Attorney General here. To 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 jury instructions are "not themselves legal authority." ( People v. Johnson (2016)
In any event, the Authority section following CALCRIM No. 2500 states the correct rule: "Need Not Prove Intent to Use," citing *448Rubalcava , supra, 23 Cal.4th at page 328,
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 rather 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 to say the trial court told the jury Baugh's intent regarding *906his possession of the small wooden bat may go ignored. In fact, the jury was told to "consider all the surrounding circumstances" to determine "whether the defendant possessed the object as a weapon." The added instruction that the People were not required to prove 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,
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's articulation of the legislative intent behind that offense more than 50 years ago remains valid today, as does the "circumstances of possession" test announced there. Where an object charged to be a dangerous weapon has a lawful use, the prosecution must prove the defendant possessed it as a weapon. Because imposing 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. 337-338,
III. DISPOSITION
Affirmed.
We concur:
Ruvolo, P.J.
Reardon, J.
All further statutory citations are to the Penal Code unless noted otherwise.
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)
By way of example, the court explained that, under this test, "the statute would encompass the 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,
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 possible 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 into 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)
Cf. People v. Stiltner (1982)
Case-law data current through December 31, 2025. Source: CourtListener bulk data.