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Court of Appeal, Second District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Kevin BANKS, Defendant and Appellant.

No. B098423.

Decided: October 14, 1997

Fay Arfa, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, and William H. Davis, Jr., Deputy Attorney General, for Plaintiff and Respondent.

Kevin Banks appeals from the judgment entered following his conviction for sale or possession of an instrument to defraud a telephone company, possession of property from which a serial number has been removed, and possession of a firearm by a felon, with two prior prison term findings (Pen.Code, §§ 502.7, subd. (b)(1), 537e, subd. (a)(3), 12021, 667.5).1  Sentenced to a state prison term of four years, eight months, Banks contends:  section 502.7 is unconstitutional;  there was insufficient evidence to sustain the section 537e conviction;  the trial court erred in its jury instructions regarding section 502.7;  the trial court erred by failing to instruct on self-defense with regard to the felon in possession of a firearm charge;  there was cumulative error;  the trial court erred by imposing a one-year sentence on the section 537e conviction.

The judgment is affirmed;  the sentence is modified as indicated.


Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 26 Cal.Rptr.2d 23, 864 P.2d 103), the evidence established the following.

1. Prosecution's case.

On January 12, 1995, Officer Todd Anderson of the Glendale Police Department and other officers executed a search warrant at Master Mobile Sound, a paging and cellular phone service located on La Cienega Boulevard in West Los Angeles.   The warrant authorized the officers to run the business for the day.   Defendant Banks came into the store with a bag of telephone pagers he wanted either to sell or have repaired.

Anderson followed Banks out of the store and identified himself as a police officer investigating cloned telephones.   Banks allowed Anderson to search his car for cellular phones.   A cellular phone was found under the driver's seat.   The electronic serial number (ESN) label from the back of the phone had been removed.   Banks was arrested.   In a further search of his car, a loaded .44 Magnum handgun was found under the front passenger floormat.   Also in the car was a shaving kit bag which contained a black computer-type box.   A gym bag containing six cellular phones was found in the trunk.

David Wong is a fraud investigator for L.A. Cellular, a cellular phone service provider in Southern California.  (There are two main carriers in Los Angeles, L.A. Cellular and AirTouch.)   Wong acts as a liaison between law enforcement agencies and his company.   Wong testified each cellular phone has its own ESN, which is a unique identifier analogous to a car's Vehicle identification number (VIN).   When a subscriber contacts L.A. Cellular to have a phone activated, the subscriber must provide the phone's ESN. The company then assigns a telephone number to the ESN, creating a string of numbers akin to a telephone card's access code.   To make a call on a cellular phone, the subscriber presses a button that transmits a number, which is the combination of the telephone number and the ESN, to the phone company.   If it is acknowledged as a valid combination, the company allows the call to go through.

When a person buys a cellular phone at a store, the ESN appears on the box and also on the back of the phone.   There is no need to change an ESN, which is permanently assigned to that phone.   People sometimes change their telephone number, but there is no reason to change an ESN.   Every manufacturer has its own sequence of numbers it uses for ESNs.   Thus, Wong can determine what kind of cellular phone should be attached to a particular ESN.   The ESN listed on the box or on a label on the back of the phone is known as the external serial number.   By punching a code into the cellular phone, the programmed or internal serial number can be read off the phone.   The external ESN and the internal ESN should match.   If they do not match, it indicates the phone has been cloned.  “Cloned” means a cellular phone that has an ESN different from the one it had when the phone was originally manufactured.

The most common way to obtain another person's telephone number/ESN combination is through the use of a scanning device called an ESN reader, which detects cellular frequencies.   The device can be set to read one of the two carriers, L.A. Cellular or AirTouch.   If set up on a freeway overpass, the device can pick up frequencies as cars drive underneath.   The device retains about 100 numbers in memory, which can be downloaded to a computer.   An ESN reader costs about $1,300.   It is manufactured by John Curtis in Sacramento.   Curtis developed the ESN reader to help technicians analyze phones.   When people began to use ESN readers for other purposes, the carriers got Curtis to add protective features;  his newer ESN readers show the telephone number, but not the entire ESN.   However, the old readers are still on the market.

Wong examined six phones found in Bank's possession, to see if the ESNs had been altered.   Five of the phones had been manufactured by Motorola, and by various indicators-e.g., a phone's external and internal ESNs were different, or the internal ESNs of two phones were the same-Wong determined all five had been cloned.   He could not reach any conclusions about the sixth phone, which had been manufactured by NEC.

The device inside Banks's shaving kit bag is called a “black box” or a “copycat.”   A black box has the ability to take an intercepted ESN and program it into someone else's cellular phone.   Banks's black box would only work for NEC manufactured phones.   By using Banks's black box to program an NEC phone with an intercepted ESN, the legitimate cellular service subscriber would get billed for calls made on that phone.

Banks's black box device has no other purpose than to encode ESN's into cellular phones.   Only manufacturers know what serial numbers have been assigned and the numbers are not supposed to be changed.   For the owner of a cellular phone to change its ESN would be like a car owner changing the VIN.   The only reason to change an ESN is to bilk somebody for a phone call.   The going rate for cloned telephones is about $250 to $300.   The phone is guaranteed for 30 days.   If the number gets shut off by the phone company before the 30 days, the buyer is supposed to bring the phone back to the seller and have a new phone number programmed into it.   Persons with their own phone could have them cloned for about $50 to $125.

A person in the cellular telephone business would have no reason to possess a black box like the one recovered from Banks's vehicle-it is too expensive given its only legitimate use for reading internal ESN's;  such a box sells for $2,000, but only works for one type of phone.   A black box that would do both NEC and Motorola phones would cost $4,000.  “[I]t's $2,000 per type of manufacturer's phone that you want to use.”   On the other hand, a Curtis ESN Reader works on any kind of phone and sells for only $1,200 to $1,300.

2. Defense evidence.

Banks testified he had his own business, KB's Cellular Accessories in South Central Los Angeles, providing customers “air time” for pagers and selling accessories for cellular phones.   He dealt with Professional Pagers of America, which gave him numbers and information for each pager and then charged him a fee each month for air time for each pager.   Banks sold both pagers and pager air time.   Professional Pagers also provided him with new cellular phones which Banks could sell to his customers, whom he would then refer to Professional Pagers for the purchase of air time.   Banks would get a fee for the referral.   Banks's company was not authorized to activate cellular phones.   Banks bought used phones off the street.   This happened about 20 times a month.   Banks sold these old phones to other companies for parts or scrap.   A sign on the door of Banks's business says, “ ‘Attention.   KB Sale accessories do not activate cellular phones.   Management will call fucking police.’ ”  (Sic.)  The sign was aimed at Banks's customers who came into the store and asked him to activate phones illegally.

Banks did business with Master Mobile Sound.   He took pagers there to have their frequencies changed.   The technician at Master Mobile Sound would change the frequency to one used by Banks's company so he could keep track of his air time.   Banks never did any cellular phone business with Master Mobile Sound.

On January 12, 1995, Banks went to Master Mobile Sound to have pagers worked on.   Banks acknowledged he had put the gun under the floormat of his car.   A friend had given him the gun for protection after someone had shot up his store on January 8.   The cellular phones found in the trunk of his car had been purchased off the street and Banks intended to sell them to L.A. Cellular or Professional Pagers of America.   Banks did not believe any of the phones were active.   A person would not come in and sell an active phone to him unless it had been stolen.   After checking the ESN's to insure their legitimacy, Professional Pagers would call Banks and tell him which phones could be sold.   There was nothing about the phones to indicate the internal ESNs had been altered.   He had no idea how to check internal serial numbers.   He had not removed the external serial numbers from any of the phones.

When people brought in old phones, they were usually beat up and Banks did not pay much attention to whether the external ESN sticker was still affixed to the phone.   He thought it was the internal serial number that was important.   Banks did not have any way to check the internal ESN of the Motorola phones recovered from his car.   He did not have any ESN reader other than the one recovered by the police, and he had never used that one because it didn't work.   A man had come into his store and sold him the device.   Banks understood he could use it to read internal ESN's, but when he tried he discovered the device did not work.   Banks testified he did not know the device could be used to change internal ESN numbers.

On cross-examination, Banks reviewed the police report of the shooting at his business.   The shooting had occurred on January 8, at 4 or 5 a.m., four days before his arrest.   Someone had fired a shotgun into the front windows of his store.   Banks's girlfriend, Monique, thought he should get a gun for protection and she gave him a loaded gun as a gift.   He kept the gun in the store.   It was in his car on January 12 because he was going to take it home.   He did not like guns very much and he did not want it at the store.   He preferred to have it at home and he intended to give it back to Monique so she could take it back to wherever she got it.

Banks gave receipts for the phones he purchased off the street and he maintained an accounting of the purchases.   However, his receipt books had been destroyed in the shooting.   Banks had some receipts of phone sales where the customer wanted a receipt.   He would “have to look” for individual receipts pertaining to people walking in and purchasing used phones from him.   He did not have records covering his purchase of any of the phones recovered by the police.   He did not have records of any fees received from Professional Pagers because those records are at Professional Pagers.   He would have to look for records covering used phones checked by L.A. Cellular, AirTouch or Professional Pagers that he had subsequently sold to customers.

Banks was not an agent for AirTouch or L.A. Cellular.   He was not authorized to repair phones made by Motorola or NEC.   He was not licensed by AirTouch, L.A. Cellular, Motorola or NEC.   He did not know cellular phones are supposed to have their ESN's attached to the back.   He did know manufacturers put such numbers on their phones.   Banks thought it would be a good idea to purchase the black box device rather than go to Professional Pagers or L.A. Cellular.   He had enough NEC phones coming into his business that he wanted a black box to check them out.   Professional Pagers sold NEC phones.   He had intended to check ESN's instead of taking them to Professional Pagers or L.A. Cellular.   On the day of his arrest, Banks was taking the six cellular phones to Professional Pagers or to L.A. Cellular.   However, before January 12, 1995, he had never taken cellular phones purchased by his store over to L.A. Cellular to be checked out.

3. Prosecution rebuttal.

Michael Carlson is a fraud investigator for L.A. Cellular who examined the cellular phones recovered from Banks's car.   One of the Motorola phones had a memory feature with 99 memory positions, and Carlson was able to recover and display 25 to 30 stored numbers.   He also searched the phone for the security code and lock code locations.2  Of the five phones for which he had been able to retrieve the lock codes, Carlson found all of them had the same lock code number, 777.   Based on Carlson's experience as an investigator of cloning operations, this was significant because it is common for the person doing the cloning to add a signature-a three-digit lock code number identifying the phone as one cloned by that person.   This is done to monitor the distribution of cloned phones and the 30-day free service guarantees.   In Carlson's opinion, if five phones were all found in an automobile under the control of one individual, and all had the same lock code and all were cloned, then all the phones would have been cloned by the same person.   In the security code location, cloners will put the date the phone was cloned so, if the phone comes back under the 30-day guarantee, it can be determined how much free usage the buyer got before the carrier deactivated the ESN.   Several of the phones recovered from Banks had the date December 31, 1994, entered at the security code location;  another had January 7, 1995, and still another had January 6, 1995.

LuEllen Robertson is the Custodian of Records for AirTouch.   She obtained the records for six of the cellular phones found in Banks's car.   As of January 12, 1995-the day Banks was arrested-two of these phones had been disconnected, one had been restricted to local calls, and three were active and unrestricted.   Subsequently, cloning activity was detected on the active ESNs.   Cloning activity is indicated by such factors as an unusually high usage or overlapping calls billed to the same number on two different phones.

4. Surrebuttal.

Banks testified he was not the person who had entered the 777 lock code on the phones.   He did not know how to enter a lock code on a cellular phone.   Banks had not entered the security code dates on the phones, nor did he know how to do that.   He did enter 30 or so telephone numbers on one phone.   He had been playing with the phone at his store, inputting numbers and trying to input names, “just to see how it works[.]”  He could not figure out how to input the names.   The numbers he entered belonged to his neighbors.


1. Section 502.7 is constitutional.

Banks contends section 502.7, subdivision (b)(1), is unconstitutionally vague and overbroad because it fails to provide adequate notice of what conduct is prohibited.   We are not persuaded.

Penal Code section 502.7, subdivision (b)(1) provides:  “Any person who does either of the following is guilty of a misdemeanor or a felony, except as provided in subdivision (g):  [¶] (1) Makes, possesses, sells, gives, or otherwise transfers to another, or offers or advertises any instrument, apparatus, or device with intent to use it or with knowledge or reason to believe it is intended to be used to avoid any lawful telephone or telegraph toll charge or to conceal the existence or place of origin or destination of any telephone or telegraph message.”  (Italics added.)   Banks claims the phrase “reason to believe” renders the statute constitutionally defective.   He argues, “It is virtually impossible to determine the mental state necessary to commit the crime because there is no definition of ‘reason to believe.’   The only requirement is that a person possess an instrument or cellular telephone and a ‘reason to believe.’   Virtually every person who possesses a cellular telephone violates Penal Code section 502.7 because, as the trial testimony showed, even innocent persons could have reason to believe their cellular telephone is intended to be used in the illegal manner.   The testimony at trial showed that internal serial numbers are not visible and a mechanical device is required to detect them.”   Banks maintains the phrase “reason to believe” has no fixed meaning and is, therefore, inherently vague.

 “The constitutional interest implicated in questions of statutory vagueness is that no person be deprived of ‘life, liberty, or property without due process of law,’ as assured by both the federal Constitution (U.S. Const., Amends. V, XIV) and the California Constitution (Cal. Const., art. I, § 7).   Under both Constitutions, due process of law in this context requires two elements:  a criminal statute must ‘ “be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt.” ’  [Citations]” (Williams v. Garcetti (1993) 5 Cal.4th 561, 567, 20 Cal.Rptr.2d 341, 853 P.2d 507.)   Several factors are involved:  “ ‘ “First ․ we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.   Vague laws may trap the innocent by not providing fair warning.   Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them.   A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” ’  [Citations.]”  (Id. at pp. 567-568, 20 Cal.Rptr.2d 341, 853 P.2d 507.)

 “The starting point of our analysis is ‘the strong presumption that legislative enactments “must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears.  [Citations.]   A statute should be sufficiently certain so that a person may know what is prohibited thereby and what may be done without violating its provisions, but it cannot be held void for uncertainty if any reasonable and practical construction can be given to its language.” ’  [Citation.]”  (Id. at p. 568, 20 Cal.Rptr.2d 341, 853 P.2d 507.)  “In examining statutes challenged on vagueness grounds, courts have looked not merely at the hypothetical cases to which the statute has uncertain applicability, but also at the act allegedly committed by the charged defendant.   The presumptive validity of a legislative act militates against invalidating a statute merely ‘․ because difficulty is found in determining whether certain marginal offenses fall within ․ [its] language.  [¶] Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed.’  [Citations.]   We are not obliged to ‘․ consider every conceivable situation which might arise under the language of the statute ․’ [citation], so long as that language may be given ‘․ a reasonable and practical construction in accordance with the probable intent of the Legislature’ and encompassing the conduct of the defendants [citation].”  (Bowland v. Municipal Court (1976) 18 Cal.3d 479, 492, 134 Cal.Rptr. 630, 556 P.2d 1081;  see also People v. McKelvey (1991) 230 Cal.App.3d 399, 403, 281 Cal.Rptr. 359 [“In reviewing a statute challenged for vagueness, courts focus upon defendant's act rather than hypothetical or conceivable acts falling within the statute.”].)

 “ ‘The requirement of reasonable certainty does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding.  [Citation.]’ ”  (People v. Heilman (1994) 25 Cal.App.4th 391, 400, 30 Cal.Rptr.2d 422 [“repeatedly” not unconstitutionally vague].)  “A dictionary is a proper source to determine the usual and ordinary meaning of a word or phrase in a statute.”  (E.W. Bliss Co. v. Superior Court (1989) 210 Cal.App.3d 1254, 1258, fn. 2, 258 Cal.Rptr. 783;  see Brown v. Municipal Court (1978) 86 Cal.App.3d 357, 365, 150 Cal.Rptr. 216 [dictionary used to define “failure” and “inability” in DUI-related statute].)

 “Like a vagueness challenge, an overbreadth challenge implicates the constitutional interest in due process of law.  (U.S. Const., Amends. V, XIV;  Cal. Const., art. I, §§ 7, subd. (a), 24.)   The overbreadth doctrine provides that ‘a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.’  [Citation.]”  (Williams v. Garcetti, supra, 5 Cal.4th at p. 577, 20 Cal.Rptr.2d 341, 853 P.2d 507.)  “Nevertheless, a facial overbreadth challenge is difficult to sustain.   The high court has emphasized that ‘[a]pplication of the overbreadth doctrine ․ is, manifestly, strong medicine.   It has been employed ․ sparingly and only as a last resort.’  [Citation.]   Consequently, to justify a conclusion of facial overbreadth, ‘the overbreadth of a statute must not only be real, but substantial as well․’  [Citation.]   Applying this test, the high court declined to strike down a statute altering the definition of ‘private’ clubs for antidiscrimination purposes because the plaintiff failed to ‘demonstrate from the text of [the statute] and from actual fact that a substantial number of instances exist in which the [statute] cannot be applied constitutionally․’  [Citation.]”  (Id. at pp. 577-578, 20 Cal.Rptr.2d 341, 853 P.2d 507)

 Banks argues section 502.7 “virtually gives the police the power to prosecute all persons with a cellular telephone” because the trial evidence showed “if a cellular telephone is legitimate, the external and internal ESNs match.   Cloned telephones contain ESN numbers other than those originally manufactured.   However, unless a person had a ‘reader’ to decode the internal serial numbers, a person would not know the internal and [external] ESNs did not match.   Therefore, any person having a cellular telephone would have ‘reason to believe’ they possessed an illegal instrument.”   Not so.   Any person unaware of a discrepancy between internal and external ESNs would have no reason-on that basis-to believe the phone was intended to be used for the fraudulent purposes enumerated in the statute.

Banks also argues the statute is unconstitutionally vague because the phrase “reason to believe” has no fixed meaning.   But the phrase contains no technical terms, is not complex, and has a common sense meaning.   Moreover, the statute is certainly not vague as applied to Banks because the evidence showed he had actual knowledge the phones were to be used for the designated unlawful purpose.   Banks possessed several cloned phones with altered or destroyed external ESNs;  he also possessed a device capable of creating cloned phones.   Banks admitted he had programmed the memory of one of the cloned phones with the phone numbers of people he knew.   His black box device had no other practical purpose than to alter ESNs.   The identical lock codes indicated the cloned phones found in Banks's car had been cloned by the same person.   The very recent dates entered at the security code locations indicated these cellular phones had been used in an illegal cloning operation in the very recent past.   All this evidence showed Banks had an active role in the illegal business of selling cloned phones, and that he actually knew the equipment he possessed was intended to be used for the unlawful purpose of avoiding telephone charges.3

Banks has not overcome the strong presumption legislation must be upheld unless its unconstitutionality clearly appears.  (Williams v. Garcetti, supra, 5 Cal.4th at p. 568, 20 Cal.Rptr.2d 341, 853 P.2d 507.)

2. Sufficient evidence of violating section 537e.

Banks contends there was insufficient evidence to sustain his conviction for possessing an integrated computer chip or panel from which the manufacturer's serial number has been altered or destroyed.

Section 537e, subdivision (a) provides, in pertinent part:  “Any person who knowingly buys, sells, receives, disposes of, conceals, or has in his or her possession any personal property from which the manufacturer's serial number or any other distinguishing number or identification mark has been removed, defaced, covered, altered, or destroyed, is guilty of a public offense, ․” For purposes of this subdivision, ‘personal property’ includes, “(1) Any television, radio, recorder, phonograph, telephone, piano, or any other musical instrument or sound equipment.  [¶] [¶] (4) Any computer, printed circuit, integrated chip or panel, or other part of a computer.”

Having conceded at trial there was evidence cellular phones contain computer chips, Banks now asserts “the plain terms of the statute require that the integrated computer chip or panel be part of a computer” and that “[t]he plain terms of the statute require that a telephone be the item from which the serial number is removed[.]”  He argues the only trial evidence concerning computer chips “demonstrated that the ‘chip’ was somewhere in the cellular phone, not in a computer.”   Banks also seems to argue evidence he possessed computer chips with altered ESNs is insufficient because there must be proof there were altered serial numbers on the computer chips themselves (i.e., nonelectronic serial numbers).

 We are not convinced.   That subdivision (a) defines “personal property” as including telephones does not negate the fact it also includes computer chips.   There was evidence cellular phones contain computer chips on which are encoded the internal ESNs.   There was evidence Banks possessed cellular telephones whose internal ESNs had been altered.   There was evidence the internal ESNs had been initially programmed by the manufacturer.   The statute does not, on its face, require the altered number to have been physically encoded onto the computer chip itself.   Rather, the offense proscribes altering “the manufacturer's serial number or any other distinguishing number or identification mark.”   Certainly the evidence showed a cellular phone's internal ESN is a distinguishing number or identification mark put there by the phone's manufacturer.   That is all the statute requires.   Thus, there was sufficient evidence to sustain the section 537e conviction.

Banks also contends the trial court erred by sentencing him to a one-year stayed term for the section 537e violation, and asks us to modify that term to reflect a six-month sentence.   The People concede this claim is meritorious.

Although section 537e, subdivision (a)(3), includes a one-year county jail term for removing or destroying the serial number from a computer chip or panel valued at more than $400, the jury found the value of the property did not exceed $400.   Section 537e, subdivision (a)(1) sets the punishment at “imprisonment in the county jail not exceeding six months” if the value of the property does not exceed $400.   Nevertheless, the trial court imposed, and then stayed, a one-year county jail sentence.   Banks's sentence will be modified to reflect imposition of a six-month stayed term.

3. Clarification of statutory terms.

Banks contends the trial court erred by failing to give the jury, sua sponte, definitions of various terms used at trial, including:  “reason to believe,” “computer chip,” “cellular telephone,” “cloning device,” and “manufacturer's nameplate, serial number, and other distinguishing number and identification.”   This claim is meritless.

 A defendant has no right to complain an instruction correct in law and responsive to the evidence was too general or incomplete unless he has requested appropriate clarifying or amplifying language.  (People v. Andrews (1989) 49 Cal.3d 200, 218, 260 Cal.Rptr. 583, 776 P.2d 285.)   In the absence of such a request, the trial court need only instruct sua sponte on the general principles of law governing the case, which are those principles closely and openly connected with the facts before the court and which are necessary for the jury's understanding of the case.  (People v. St. Martin (1970) 1 Cal.3d 524, 531, 83 Cal.Rptr. 166, 463 P.2d 390.)

 The terms Banks claims should have been further defined were either irrelevant to the issues raised by the evidence or were adequately defined for the jury by the expert testimony, and therefore further definition was not required in order to provide adequate guidance for the jury.   The terms “cellular telephone,” “cloning device,” and “manufacturer's nameplate, serial number, and other distinguishing number and identification” were explained by the expert testimony.   Expert witness Wong explained that cellular phones contained computer chips (on which were encoded the internal electronic serial numbers), and it was apparently never disputed by Banks that this computer chip constituted an “integrated computer chip or panel.”   As discussed above, the phrase “reason to believe” is sufficiently clear to pass constitutional muster, and thus did not require clarification absent any request.

4. Section 502.7 did not here require proof of specific intent

Banks contends the trial court erred by failing to instruct the jury on the specific intent element of section 502.7, subdivision (b)(1).   This claim is meritless.

The trial court informed the jury, in words paraphrasing the statute, the two elements required for a conviction under section 502.7, subdivision (b)(1) were that Banks possessed a cellular phone or cloning device, and that he “knew, or had reason to believe, that the cellular telephone or cloning device was intended to be used to avoid a lawful telephone charge or to conceal the existence or place of origin or destination of a telephone charge.”   Banks argues, “While [he] may have possessed the devices with knowledge or reason to believe that they were intended to be used for certain purposes, he may not have specifically intended the devices to be so used.   He may have had other reasons for possessing the devices.   He may simply have wanted to possess them for their parts.   He may have wanted to possess them for reactivation purposes.   The mere possession of cloned telephones and cloning devices per se did not mean Banks specifically intended them to be used in such a fashion.”

 The statute appears to contain both specific and general intent elements.   Banks was charged by amended information only with the general intent language.   The trial court's instruction properly set forth the charge.   Banks tries to read the statute's “intended to be used” language to mean “intended to be used by the defendant.”   Such a reading, however, would have the effect of reducing the general intent language of the statute to surplusage.

5. Instruction on necessity defense not required.

Banks contends the trial court erred by refusing to give CALJIC No. 12.50, which sets forth the conditions under which an ex-felon does not violate section 12021 even though he is in possession of a firearm.   This claim is meritless.

CALJIC No. 12.50 is based on People v. King (1978) 22 Cal.3d 12, 148 Cal.Rptr. 409, 582 P.2d 1000, which held, “in enacting section 12021 the Legislature did not intend to deny persons described by that section the right to use a concealable firearm 4 in defense of self or others in emergency situations․”  (Id. at p. 15, 148 Cal.Rptr. 409, 582 P.2d 1000.)  “Thus, when a member of one of the affected classes is in imminent peril of great bodily harm or reasonably believes himself or others to be in such danger, and without preconceived design on his part a firearm is made available to him, his temporary possession of that weapon for a period no longer than that in which the necessity or apparent necessity to use it in self-defense continues, does not violate section 12021.”  (Id. at p. 24, 148 Cal.Rptr. 409, 582 P.2d 1000.)

Banks argues his case falls under the reasoning of King because he got the gun after someone had fired a shotgun at his business, he only kept the gun at his store four or five days, and, since he “was in the process of taking the gun to his home to protect his children” when he was arrested, “the jury could infer that he carried the gun for self-defense and feared imminent peril of great bodily harm within the meaning of CALJIC No. 12.50.”

 This argument fails for a number of reasons.   In King, “the defendant was a guest at a party.   During a violent altercation with a group of party crashers who were kicking and pounding on the front door and threatening to break it down, defendant was handed a .25 caliber pistol which he fired in an attempt to frighten the intruders.   The court held, ‘Inasmuch as defendant's brief use of a concealable firearm, without predesign or prior possession of the weapon, in the exercise of the right to self-defense, defense of others, or defense of habitation would not constitute the possession, custody, or control of the firearm which the Legislature has prohibited in section 12021, it was error for the court to fail to instruct the jury regarding the relevance of these defenses to the 12021 charge.’  [Citation.]”   (People v. McClindon (1980) 114 Cal.App.3d 336, 339-340, 170 Cal.Rptr. 492) King is applicable only where there is imminent peril and a temporary possession of the firearm without preconceived design.  (Compare People v. Mizchele (1983) 142 Cal.App.3d 686, 692, 191 Cal.Rptr. 245 [King instruction required where defendant, during argument with wife, grabbed gun from her pocket and shot her] with People v. McClindon, supra, 114 Cal.App.3d at p. 340, 170 Cal.Rptr. 492 [King instruction not required because defendant's “possession of the pistol was admittedly not brief and further it was not without design or prior possession.   Appellant admitted that he had possession of the firearm for approximately five months and that he kept it by his bed for protection because he did not want to shoot anybody with his rifle.”].)

 The shooting at Banks's store occurred four days before his arrest.   He testified he was carrying the gun in his car not for protection, but so that he could return it to his girlfriend who had given it to him in the first place.   At the time his girlfriend gave him the gun, Banks was not facing imminent peril, there having apparently been no indication the shooting incident was likely to be repeated.   Banks testified he took the gun to his store for general protection:  “Well, my store is in a very high crime rate [area], there's gang members across the street that hangs at the hamburger stand and liquor store and I like to protect my children as well as myself.” 5  Moreover, contrary to his argument here, Banks testified he was taking the gun home so that his girlfriend could either return it to wherever she had gotten it or “put it up in the closet or something.”

The circumstances under which Banks possessed the gun did not trigger the King instruction.

6. Cumulative error.

 Banks contends the accumulated harm caused by the trial court's errors requires reversal.  (See People v. Buffum (1953) 40 Cal.2d 709, 726, 256 P.2d 317 [“cumulative effect of the errors requires reversal”];  People v. Cruz (1978) 83 Cal.App.3d 308, 334, 147 Cal.Rptr. 740 [“combination of errors ․ requires reversal”].)  When a case is close, a small degree of error in the trial court could, on appeal, be considered enough to have influenced the jury to wrongfully convict.  (See People v. Wagner (1975) 13 Cal.3d 612, 621, 119 Cal.Rptr. 457, 532 P.2d 105 [judgment reversed because “case comes within the rule that a miscarriage of justice has occurred when the case is closely balanced and the acts of misconduct are such as to have contributed materially to the verdict”].)  In light of the foregoing, it is apparent the errors, if any, were few, and that they “did not, either singly or together, result in any substantial detriment to the fairness or reliability” of the trial.  (People v. Sanders (1995) 11 Cal.4th 475, 537, 46 Cal.Rptr.2d 751, 905 P.2d 420.)   Reversal is not required.


The one-year, stayed county jail sentence imposed by the trial court is vacated and a six-month, stayed county jail sentence is hereby imposed in its place.   The judgment as modified is affirmed.   The trial court is directed to prepare an amended abstract of judgment and forward a copy to the Department of Corrections.


1.   All further statutory references are to the Penal Code unless otherwise specified.

2.   The security code is the code a technician uses to activate a phone for a customer.   It is the number that is necessary to get into the programming mode of the phone.   The lock code is used as a security feature to prevent others from using the phone.

3.   Having rejected this claim, we also reject Banks's contention the trial court erred by telling the jury it could convict him of violating section 502.7 if it found the “reason to believe” element.   Contrary to Banks's argument, the fact his black box could not have cloned the Motorola phones in his possession does not compel the conclusion he had nothing to do with phone cloning.

4.   Section 12022.5 no longer requires the firearm to be concealable.

5.   Banks had testified his children sometimes watch the store for him.

KLEIN, Presiding Justice.

CROSKEY and ALDRICH, JJ., concur.