HARROTT v. COUNTY OF KINGS

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Court of Appeal, Fifth District, California.

J.W. HARROTT, Plaintiff and Appellant, v. COUNTY OF KINGS et al., Defendants and Respondents.

No. F023079.

Decided: June 18, 1996

John S. Dulcich, Delano, for Plaintiff and Appellant. Denis A. Eymil, County Counsel, and William James Murphy, Deputy County Counsel, for Defendants and Respondents.

In this opinion, we hold that under Penal Code 1 section 12275 et seq., entitled the Roberti–Roos Assault Weapons Control Act of 1989 (the Act), the Attorney General is vested with exclusive authority to bring actions augmenting the list of banned assault rifles.   Accordingly, as the weapon in the underlying action here was neither specifically listed nor the subject of an action brought by the Attorney General, we will reverse the judgment.

THE FACTS

Appellant J.W. Harrott is an attorney.   In payment for legal services rendered, Gail and Marilyn Hamilton transferred ownership of their gun collection to Harrott.   At the time of transfer, the gun collection was in the possession of the Kings County Sheriff's Department after being seized from the Hamiltons previously.   Among the guns in the collection was a Clayco brand rifle.   Demand was made by Harrott of all the weapons;  however, the Sheriff of Kings County refused to release the Clayco to Harrott because of his determination that it was an assault rifle within the meaning of section 12276.2  Harrott then filed a petition for writ of mandate on May 16, 1994, seeking return of the weapon.

At the hearing on the writ petition, John Hamman, a criminalist with the Department of Justice, and George Kayajanian, a federally licensed firearms dealer, testified as experts on the issue of weapons identification.   Each testified, in essence, that the differences between the Clayco and the model AK47 were minor.   Nevertheless, each testified it was not an assault rifle within the meaning of section 12276.   Hamman stated that the ultimate factor in determining whether a firearm is an assault weapon “is how the firearm is labeled or marked by the manufacturer.” 3  Notwithstanding the concurrence of the two experts called by the opposing sides, the trial court denied the writ petition, stating:

“The evidence in the case that we've heard today establishes that the weapon in question is not a weapon specifically named in section 12276 subsection (a)(1)(A), et seq.   Nor is it a weapon which has specifically been designated by the California Attorney General as an assault weapon in the Attorney General's Assault Weapons Identification Guide or the list of assault weapons prepared by the Attorney General pursuant to the directive of Penal Code Section 12276.6.

“So the question before the Court is whether a weapon can be an assault weapon if it's not specifically named and identified by make and model in section 12276 or specifically named by the Attorney General.”

Having set forth the issue, the court found the Clayco was an AK series weapon, as it was functionally equivalent.

DISCUSSION

The Act is codified at section 12275 et. seq.   This legislation was enacted to prohibit the advertisement, manufacture, importation, sale, transportation or possession of a semiautomatic firearm defined as an “assault weapon.”   Section 12276, subdivision (a) contains a listing of specific semiautomatic firearms which are “assault weapons” within the meaning of the Act.   Subdivision (a)(1) states that “All AK series including, but not limited to” the models listed in subparagraphs (A) through (D) are assault weapons.   Subdivision (e) of this section provides that 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.”

Section 12276.5 established a procedure by which a firearm may be declared to be an assault weapon within the meaning of section 12276.   Only the Attorney General is authorized to initiate such a proceeding. (§ 12276.5, subd. (a).)  It is initiated by the filing of a petition in a superior court of a county with a population of more than one million.   A hearing on the petition is set.   At the hearing, “the burden of proof is upon the Attorney General to show by a preponderance of evidence that the weapon ․ is an assault weapon.   If the court finds the weapon to be an assault weapon, it shall issue a declaration that it is an assault weapon under Section 12276.”

Section 12276.5 was amended in 1990 and 1991.   In relevant part, the 1990 amendment added subdivision (g) which requires the Attorney General to prepare a description, including a picture or diagram, of each assault weapon listed in section 12276 and of any firearm declared to be an assault weapon pursuant to section 12276.5.   This description is to be distributed to all law enforcement agencies responsible for enforcement of the Act.   The Legislature enacted subdivision (g) to alleviate concerns that under the current law, “weapons which are not in fact assault weapons may be erroneously confiscated by law enforcement personnel unless they are properly trained to identify such weapons.”  (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 2444 (1989–1990 Reg. Sess.) p. 1.)   Its purpose was, therefore, “To insure that firearms not on the assault weapon list are not erroneously confiscated by law enforcement personnel․”  (Sen. Com. on Judiciary, Background Information on Sen. Bill No. 2444 (1989–1990 Reg. Sess.) p. 1.)

The 1991 amendment added subdivisions (h) and (i) to section 12276.5.   Subdivision (h) requires the Attorney General to promulgate a list specifying all firearms designated as assault weapons within the meaning of section 12276 or declared to be assault weapons pursuant to section 12276.5.   This list is to be filed with the Secretary of State for publication in the California Code of Regulations.   An amended list is to be promulgated within 90 days after a declaration that a specified firearm is an assault weapon.   Subdivision (i) authorizes the Attorney General to adopt rules and regulations necessary to carry out the purposes and intent of the Act. The legislative history for the 1991 amendment to section 12276.5 is silent as to goals and purpose for the enactment of subdivisions (h) and (i).

 The trial court correctly framed the determinative question:  Can a firearm be an “assault weapon” within the meaning of section 12276 if it is neither specifically listed in section 12276, subdivision (a) nor identified as such by the Attorney General?   By its action, the trial court implicitly concluded it was empowered to interpret what is meant by the phrase “minor differences” in subdivision (e) of section 12276 and to find a firearm to be an “assault weapon” even if not listed in section 12276, subdivision (a) or previously declared to be an assault weapon through a section 12276.5 proceeding.   As we shall explain, we will nullify the court's finding by our conclusion the court was without jurisdiction to decide the issue.

 All parts of a statute and statutory sections relating to the same subject must be interpreted together and harmonized whenever possible.  (Dyna–Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387, 241 Cal.Rptr. 67, 743 P.2d 1323;  DeYoung v. City of San Diego (1983) 147 Cal.App.3d 11, 18, 194 Cal.Rptr. 722.)   Thus, section 12276 must be read in conjunction with section 12276.5.   It follows that unless the Legislature specifically identified a firearm as being an assault weapon in section 12276, subdivision (a), it delegated to the Attorney General the exclusive authority to have a firearm designated as an assault weapon through the filing of a petition pursuant to section 12276.5, subdivision (a).4  Only if the weapon at issue is designated in section 12276, subdivision (a) or the Attorney General followed the procedure specified in section 12276.5 to have the firearm designated as an assault weapon, and thereafter included it in the list required by section 12276.5, subdivision (h), is the firearm at issue an “assault weapon” within the meaning of the Act.   Thus, it is only in ruling on a petition filed by the Attorney General requesting a firearm be declared an assault weapon that section 12276, subdivision (e) becomes relevant.

Interpreting the Act in the manner set forth above furthers the intent of the Legislature.   By restricting the definition of “assault weapon” to those firearms listed in section 12276 and those judicially declared to be such pursuant to a section 12276.5 proceeding and included in the Attorney General's list, the risk that law enforcement personnel may erroneously seize legal firearms is mitigated, and firearm owning citizens are protected from inadvertent violation of section 12280 (discussed post ).   The legislative history of the amendments to the Act reveal strong concern that law enforcement personnel be clearly advised which firearms are “assault weapons” within the meaning of the Act so as to prevent erroneous confiscation of legal weapons.   The Legislature's concern that such a list be current and completely inclusive is demonstrated by the requirement that when a firearm has been declared to be an assault weapon pursuant to a section 12276.5 proceeding, the Attorney General's list must be amended within 90 days to include the specified firearm.   There is no corresponding provision that if a trial court independently declares a firearm to be an assault weapon, it must notify the Attorney General.   Since decisions of the trial court are not published, if we were to read the Act as urged by the county, the Legislature's purpose in mandating promulgation of a complete and current list would be thwarted.   Without notice to the Attorney General, any trial court could, at any time, declare firearms to be assault weapons, thereby rendering the Attorney General's list obsolete and frustrating the intent of the Legislature.

It is of crucial importance that the Attorney General's list be complete and accurate for a second, more fundamental, reason.   Section 12280, subdivision (b) makes it a crime to possess a firearm which has been designated to be an assault weapon unless it has been registered.   Even though knowledge of the weapon's character is probably not an element of the offense (cf. People v. Corkrean (1984) 152 Cal.App.3d 35, 41, 199 Cal.Rptr. 375), basic constitutional due process protections require the citizenry to be given clear and unequivocal notice which firearms have been declared to be assault weapons.  (Cf. Walker v. Superior Court (1988) 47 Cal.3d 112, 141, 253 Cal.Rptr. 1, 763 P.2d 852;  People v. Sipe (1995) 36 Cal.App.4th 468, 480, 42 Cal.Rptr.2d 266.)   The Attorney General's list provides such notice.   However, were trial courts independently authorized to declare additional firearms to be assault weapons without the participation of or notice to the Attorney General, the likelihood the list would be incomplete is substantially increased.   Thus, ordinarily law abiding citizens could suddenly find themselves in violation of the Act and subject to prosecution despite having periodically checked the Attorney General's list and reviewed section 12276, subdivision (a) to ensure their firearms had not been declared to be assault weapons.

The Legislature's intent to restrict designation of firearms as assault weapons is further evidenced by the requirement in section 12276.5, subdivision (a) that a petition must be filed in a superior court in a county with a population of more that one million.   It is a well-known axiom of statutory construction that statutes are to be interpreted so as to give meaning to all parts thereof.  (See generally 7 Witkin, Summary of Cal. Law (1988) § 94, p. 147.)   The Legislature's purpose in enacting this express limitation would be effectively nullified were independent proceedings permitted to be brought in any county, no matter its size.5

In sum, after review of the Act as a whole and of its legislative history, we conclude the Legislature did not intend for local law enforcement agencies to make the initial determination whether a specific firearm is an assault weapon.   Such a determination is made by the Legislature, through inclusion in section 12276, or by the trial court, but only after the filing of a petition by the Attorney General.   By requiring the Attorney General to file the petition, two layers of review are ensured before a firearm is declared to be an assault weapon:  review by the Attorney General's office and review in the trial court.   This double review helps ensure that the Legislature's prosecution of assault weapons is appropriately enforced.   Were we to find otherwise, one county, given a receptive judge, could have a plethora of weapons declared to be assault weapons, a declaration binding on the citizenry of the entire state, even against the express wish of the Attorney General, who represents the State of California as a whole.

Thus, because the Clayco rifle was not specifically included in section 12276, subdivision (a), has not been declared to be an assault weapon by virtue of a section 12276.5 proceeding, and is therefore not listed as an assault weapon in the list of assault weapons prepared by the Attorney General pursuant to the directive of section 12276.5, subdivision (h), the trial court was precluded as a matter of law from concluding the Clayco rifle was an assault weapon within the meaning of section 12276.

DISPOSITION

The judgment is reversed.   Costs are awarded appellant.

FOOTNOTES

FN1. Statutory references are to the Penal Code unless otherwise indicated..  FN1. Statutory references are to the Penal Code unless otherwise indicated.

2.   In pertinent part, section 12276 states:“As used in this chapter, ‘assault weapon’ shall mean the following designated semiautomatic firearms:“(a) All of the following specified rifles:“(1) All AK series including, but not limited to, the models identified as follows:“(A) Made in China AK, AKM, AKS, AK47, AK47S, 56, 56S, 84S, and 86S.“(B) Norinco 56, 56S, 84S, and 86S.“(C) Poly Technologies AKS and AK47.“(D) MAADI AK47 and ARM.“․“(d) Any firearm declared by the court pursuant to Section 12276.5 to be an assault weapon that is specified as an assault weapon in a list promulgated pursuant to Section 12276.5.“(e) 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.“(f) This section is declaratory of existing law, as amended, and a clarification of the law and the Legislature's intent which bans the weapons enumerated in this section, the weapons included in the list promulgated by the Attorney General pursuant to Section 12276.5, and any other models which are only variations of those weapons with minor differences, regardless of the manufacturer.   The Legislature has defined assault weapons as the types, series, and models listed in this section because it was the most effective way to identify and restrict a specific class of semiautomatic weapons.”  (Emphases added.)

3.   Hamman testified that in reaching this conclusion, he consulted with Deputy Attorney General Paul Bishop, who was instrumental in writing the Assault Weapons Identification Guide referenced in section 12276.5, subdivision (h).

4.   In pertinent part, subdivision (f) of section 12276 states:  “This section is declaratory of existing law, as amended, and a clarification of the law and the Legislature's intent which bans the weapons enumerated in this section, the weapons included in the list promulgated by the Attorney General pursuant to Section 12276.5, and any other models which are only variations of those weapons with minor differences, regardless of the manufacturer.”  (Emphasis added.)Although somewhat perplexing, we view the italicized phrase above as being included to assist and give guidance to the Attorney General and the affected trial courts in the interpretation of what weapons are banned.   This explanation is also consistent with our conclusion the Attorney General has exclusive responsibility in this area.

5.   It is noted that Kings County contains a population of less than one million.   Thus, even were the Attorney General to have been inclined to file a section 12276.5 petition to declare the Clayco rifle at issue to be an assault weapon, it could not do so in this county.   Thus, under no circumstance did the trial court here possess the jurisdiction to rule on this matter.

BUCKLEY, Associate Justice.

DIBIASO, Acting P.J., and HARRIS, J., concur.

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