Harrott v. County of Kings (2001)

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[No. S055064. Jun. 28, 2001.]

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

(Superior Court of Kings County, No. 94C1532, Peter M. Schultz, Judge.)

(The Court of Appeal, Fifth Dist., No. F023079, 46 Cal. App. 4th 592 and 51 Cal. App. 4th 111.)

(Opinion by Brown, J., with Kennard, Baxter, and Chin, JJ., concurring. Dissenting opinion by George, C. J., with Werdegar, J., concurring (see p. 1156).)


John S. Dulcich for Plaintiff and Appellant.

Donald Kilmer; Trutanich Michel, C. D. Michel; Benenson & Kates and Don B. Kates for the National Rifle Association of America as Amicus Curiae on behalf of Plaintiff and Appellant.

Denis A. Eymil, County Counsel and William James Murphy, Deputy County Counsel, for Defendants and Respondents.

Morrison & Foerster, James P. Bennett, Barry R. Himmelstein; Dennis Henigan and Brian J. Siebel for Center to Prevent Handgun Violence, California Police Chiefs' Association, California State Sheriffs' Association, California Peace Officers' Association and City and County of San Francisco as Amici Curiae on behalf of Defendants and Respondents. [25 Cal. 4th 1141]



Mr. Harrott is an attorney. He received a gun collection in payment for legal services rendered to clients who had pleaded guilty to receiving stolen property. The Kings County Sheriff's Department, which was in possession of the gun collection, did not assert that one of the weapons, a semiautomatic rifle (the rifle), was stolen property, but nevertheless refused to deliver it to Mr. Harrott on the ground it was an assault weapon proscribed by the Roberti-Roos Assault Weapons Control Act of 1989 (Stats. 1989, ch. 19, § 3, p. 64; hereafter AWCA). Mr. Harrott brought this petition for writ of mandate to compel the sheriff's department to deliver the rifle to him. The trial court denied the writ, holding the rifle to be an assault weapon, and the Court of Appeal reversed. We granted review and held the case pending our decision in Kasler v. Lockyer (2000) 23 Cal. 4th 472 [97 Cal. Rptr. 2d 334, 2 P.3d 581] (Kasler).

In Kasler, supra, 23 Cal. 4th 472, in the course of upholding the AWCA against various constitutional challenges, we summarized the statutory provisions that govern the question whether a semiautomatic firearm is considered an assault weapon. "Prior to amendment of the AWCA in 1999 (the 1999 amendments) (Stats. 1999, ch. 129, § 7 et seq.), semiautomatic firearms were designated as assault weapons by (1) being listed by type, series, and model in section 12276 [of the Penal Code], or (2) by being declared an assault weapon under a procedure set forth in section 12276.5. Under the latter procedure, which is commonly referred to as the add-on provision, certain superior courts, upon petition by the Attorney General, may be called upon to declare a firearm an assault weapon because of its essential similarity to a listed assault weapon. With its 1999 amendments to the AWCA, the Legislature took a third approach to designating assault weaponsdefining [25 Cal. 4th 1142] them in section 12276.1, subdivision (a) in terms of generic characteristics, for example, a 'semiautomatic, centerfire rifle that has the capacity to accept a detachable magazine' and also has a 'pistol grip that protrudes conspicuously beneath the action of the weapon.' (Id., subd. (a)(1)(A), Stats. 1999, ch. 129, § 7.) It bears repeating that the 1999 amendments were additive in this respect. Neither the list method of designating assault weapons in section 12276 nor the add-on provision of section 12276.5 was abandoned or textually modified by the 1999 amendments." (Kasler, at pp. 477-478.)

In order to frame the question before us, we must be clear about what the trial court did not hold. First, because this case was tried prior to the adoption of the 1999 amendments, the trial court did not decide the rifle belonging to Mr. Harrott was an assault weapon under Penal Code section 12276.1. fn. 1 Second, the trial court did not declare the rifle an assault weapon under the add-on provision of section 12276.5. The court did not purport to do so, and it would not have had the authority to do so, because the Kings County Superior Court is not one of the superior courts designated in section 12276.5, subdivision (a) (superior courts "of a county with a population of more than 1,000,000"). Moreover, the Attorney General had not filed the petition called for by that section. Finally, the trial court did not find the rifle to be one of the models specifically listed in section 12276. fn. 2 Rather, the trial court declared the rifle to be an assault weapon on the ground it was an "AK series" weapon under section 12276, subdivisions (a)(1)(A) and (e). The court found that the differences between Mr. Harrott's rifle and one of the Chinese-made AK models specifically listed in section 12276, subdivision (a)(1)(A)the AK47Swere only "minor," thus satisfying the test for a " 'series' " weapon stated in subdivision (e) of section 12276. fn. 3

There are two more statutory provisions that are critical to the framing of the issue in this case: Section 12276.5, subdivision (g) provides the Attorney [25 Cal. 4th 1143] General "shall prepare a description for identification purposes, including a picture or diagram, of each assault weapon listed in Section 12276, and any firearm declared to be an assault weapon pursuant to this section, and shall distribute the description to all law enforcement agencies responsible for enforcement of this chapter." Section 12276.5, subdivision (h) directs the Attorney General to "promulgate a list that specifies all firearms designated as assault weapons in Section 12276 or declared to be assault weapons pursuant to this section. The Attorney General shall file that list with the Secretary of State for publication in the California Code of Regulations."

The California Department of Justice criminalist called by the County of Kings (County) testified the rifle was not in his opinion an AK series weapon. He reasoned as follows: Pursuant to section 12276.5, subdivision (g), the Attorney General had prepared an assault weapons identification guide (Cal. Atty. Gen., Assault Weapons Identification Guide (1993); hereafter Identification Guide) setting out each of the assault weapons listed in section 12276, as well as the firearms declared to be assault weapons pursuant to section 12276.5. The Identification Guide designated the AK series weapons by their manufacturers' markings. The markings on this rifle did not match any of the markings in the Identification Guide. Therefore, the rifle was not an assault weapon. The expert called by Mr. Harrott reached the same conclusion on the same grounds.

Nevertheless, the trial court held the rifle was an AK series weapon, and thus, an assault weapon. It did so on the theory that the ultimate legal question as to whether the rifle was an AK series weapon was a question for the court, not the Attorney General, to decide. The test to be applied by the decision maker is set out in subdivision (e) of section 12276: "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." That test was satisfied here, the trial court found, because the criminalist called by the County conceded that any variations between this rifle and an AK reference weapon (the AK 47S) were only minor.

[1a] The question presented by this case, therefore, is whether the superior court had the authority to declare Mr. Harrott's rifle an AK series assault weapon under section 12276, subdivisions (a)(1)(A) and (e) when it had not been identified as such in the Identification Guide published by the [25 Cal. 4th 1144] Attorney General pursuant to section 12276.5, subdivision (g), and had not been included in the list of assault weapons promulgated by the Attorney General pursuant to section 12276.5, subdivision (h).

We conclude the answer to this question is no, for reasons well stated by the Court of Appeal in reversing the judgment of the trial court. "The legislative history of the amendments to the [AWCA] reveals strong concern that law enforcement personnel be clearly advised which firearms are 'assault weapons' within the meaning of the [AWCA] 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 [AWCA] 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."

Moreover, the Court of Appeal noted, "the Attorney General's list [must] be complete and accurate .... [because] [s]ection 12280, subdivision (b) makes it a crime to possess a firearm which has been designated ... an assault weapon unless it has been registered.... [W]ere 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 [AWCA] 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 ... assault weapons."

The reasoning of the Court of Appeal was validated by our subsequent decision in In re Jorge M. (2000) 23 Cal. 4th 866 [98 Cal. Rptr. 2d 466, 4 P.3d 297] (Jorge M.). In Jorge M., we considered the question whether the offense of possession of an unregistered assault weapon (§ 12280, subd. (b)) "can properly be categorized as a public welfare offense, for which the Legislature intended guilt without proof of any scienter." (Jorge M., at p. 872.) We concluded that in a prosecution for this offense, "the People bear the burden of proving the defendant knew or reasonably should have known the firearm [25 Cal. 4th 1145] possessed the characteristics bringing it within the AWCA." (Id. at p. 887, italics & fn. omitted.) In reaching this conclusion, we considered seven factors "courts have commonly taken into account in deciding whether a statute should be construed as a public welfare offense." (Id. at p. 873.) One of these factors is the difficulty of ascertaining facts. "This interpretive guideline holds with particular strength when the characteristics that bring the defendant's conduct within the criminal prohibition may not be obvious to the offender." (Id. at p. 881.)

As was mentioned above, prior to its amendment in 1999, the AWCA did not define assault weapons generically. In 1989, when the AWCA was originally enacted, the Legislature was sharply divided, and if the proponents of the legislation had insisted upon a generic definition, the bill would apparently have died in the Assembly that session. (Kasler, supra, 23 Cal.4th at p. 487.) Recognizing that the perfect can be the enemy of the good, the Legislature compromised and enacted an admittedly imperfect bill under which "semiautomatic firearms were designated as assault weapons by (1) being listed by type, series, and model in section 12276, or (2) by being declared an assault weapon under a procedure set forth in section 12276.5." (Kasler, at pp. 477-478.) As a result, anomalous situations could arise. That is, prior to the amendment of the AWCA in 1999, two semiautomatic firearms made by different manufacturers, or two different models made by the same manufacturer, could be virtually identical in appearance, and yet one might be banned while the other is not. In Jorge M., we recognized it could be difficult to ascertain whether a semiautomatic firearm has the characteristics making it an assault weapon under the AWCA as originally enacted. "The Attorney General maintains the weapons listed in section 12276 are 'highly dangerous offensive weapons which are unambiguously hazardous. Assault weapons are typically used by soldiers in a war.... The assault weapons listed in section 12276, like the SKS with detachable magazine, are not "ambiguous substances" such that a person would not be aware of the dangerous character of the weapon after looking at one.' The minor, in contrast, again stresses that the AWCA restricts only a subset of semiautomatic firearms, leaving the remainder available for lawful uses such as hunting and target shooting, and that even those semiautomatic firearms classified as assault weapons may, if registered, be lawfully possessed and used for these purposes. (See § 12285, subd. (c).) [¶] On this point the minor has the better argument.... [¶] As to whether the possessor of a weapon listed in section 12276 would, in all or most cases, 'be aware of the dangerous character of the weapon after looking at one,' the Attorney General does not demonstrate, or even attempt to demonstrate, that the listed weapons are universally distinguishable by their appearance from firearms not listed in section 12276. Comparison of the photographs of listed rifles in [25 Cal. 4th 1146] the [Identification Guide] with photographs of unlisted rifles in a general reference work (Walter, Rifles of the World [(2d ed. 1998)]) fails to bear out the assumption. While many of the rifles depicted in the Identification Guide are of particularly menacing appearance, with folding or telescoping stocks, forward pistol grips, bullpup configuration or other unusual external features, others, with fixed wooden stocks and a relatively conventional rifle appearance, are not obviously unsuited, to the untrained eye at least, for hunting, ranching and farming uses, or target shooting. (See, e.g., Identification Guide at pp. 6 [Baretta AR-70], 7 [CETME Sporter], 18 [SKS with detachable magazine], 23 [Springfield Armory BM 59], 26 [Valmet M62S], 28 [Valmet M78S].) Conversely, several unlisted semiautomatic rifles have unusual military-type features and appear, again to the untrained eye, unlikely sporting or working guns. (See, e.g., Walter, Rifles of the World, supra, at pp. 384 [PMC Paratrooper], 404 [Ruger Mini-14/5RF], 442 [Universal Paratrooper], 439 [Stoner Model 63A1].)" (Jorge M., supra, 23 Cal.4th at pp. 882-883.)

Two points made in our discussion in Jorge M. bear significantly on the question before us now: (1) In order to determine whether a firearm is an assault weapon under the AWCA, an ordinary citizen will have to rely heavily on the markings listed in the Identification Guide; and (2) even after consulting the Identification Guide, the ordinary citizen may still not be able to determine whether the firearm is considered an assault weapon. "[W]e observe that section 12276 lists weapons primarily by manufacturer and model. 'Accordingly, the identification markings are the most important factor in determining if a particular firearm is an "assault weapon" ' within the meaning of section 12276. (Identification Guide, supra, Foreword.) Yet the Identification Guide also suggests markings may vary from gun to gun: 'Department of Justice staff has attempted to locate examples of each of the identified "assault weapons" to identify accurately the markings on them. However, some of the identified "assault weapons" were not physically located and some which were found were not marked as specified in Section 12276.' (Identification Guide, supra, Foreword.) Accompanying the Identification Guide's photograph of a Valmet M78S (listed in § 12276, subd. (a)(16)) is the note, 'No firearm marked M78S has been located. However, the firearm pictured may be the M78S.' A similar note accompanies the photograph of a SIG PE-57 (listed in § 12276, subd. (a)(12)). (Identification Guide, supra, at pp. 20, 28.) Consequently, although most firearms listed in section 12276 are likely to be readily identifiable, some instances in which the possessor of a semiautomatic firearm could reasonably be in doubt as to whether the weapon is subject to regulation under the AWCA are also likely." (Jorge M., supra, 23 Cal.4th at p. 884.)

This case amply illustrates the difficulty an ordinary citizen might have, when a gun's markings are not listed in the Identification Guide, in determining whether a semiautomatic firearm should be considered an assault [25 Cal. 4th 1147] weapon under the AWCA. fn. 4 Perhaps the grossest feature of the rifle belonging to Mr. Harrott, its stock, was dissimilar to the AK series reference weapon, while features that might be familiar only to a gun buff, such as the "sear," fn. 5 were interchangeable with those of the reference weapon, and still others, such as the "receiver cover," fn. 6 were not.

Moreover, as the amicus curiae brief filed in support of Mr. Harrott by the National Rifle Association (NRA) points out, the authority claimed by the trial court hereto hold a firearm to be an assault weapon under section 12276, even though its markings do not appear in the Identification Guidecould lead to the same weapon being treated differently from county to county and even within the same county. "[T]he course taken by the Sheriff and the Kings County Superior Court would substitute chaos for the AWCA's plan of uniform, statewide determinations of which guns are [assault weapons]. If allowed to stand, the trial court decision in Harrott would subject California's gun owners, particularly hunters, to whimsical and capricious prosecution. Kern County might have no problem with a particular firearm, but a single judge in Kings County could turn a truly innocent citizen ... into a felon. A hunter who left Kern (where a Clayco rifle is completely legal) to hunt in Kings County could be arrested and prosecuted for the minimum four-year sentence felony of transporting an [25 Cal. 4th 1148] 'assault weapon' under section 12280, subdivision (a)." fn. 7 Trial court decisions are not precedents binding on other courts under the principle of stare decisis. (Santa Ana Hospital Medical Center v. Belshé (1997) 56 Cal. App. 4th 819, 831 [65 Cal. Rptr. 2d 754]; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 922, p. 960.) Therefore, as the NRA notes, "the trial court decision in Harrott binds only the parties theretoeven in Kings County. If the exact same situation arose again in some other county (or even in Kings), a Clayco owner would be free to bring suit to compel the police to give him his Clayco. While the superior court in which he brought it could follow the Harrott superior court, it would not have to. It would be free to reach the opposite conclusioneither by examining the merits for itself or by accepting as binding the Attorney General's list of AK series guns which does not include the Clayco." (Fn. omitted.)

Moreover, the NRA argues, just as the Kings County Superior Court had no authority to pronounce Mr. Harrott's rifle an AK series assault weapon under section 12276, subdivision (e), the Attorney General also lacks the authority to identify series weapons under that provision. Such a determination, the NRA contends, could only be made in a section 12276.5 add-on proceeding brought by the Attorney General in one of the courts designated in that section. The Attorney General, on the other hand, contends we have already upheld his authority under section 12276, subdivision (e). "The Kasler decision has affirmed the Attorney General's authority to identify assault weapons with both the add-on provisions of ... section 12276.5 and identify the 'series' AK and AR-15 assault weapons pursuant to ... section 12276[, subdivisions] (e) and (f)." (Cal. Dept. of Justice, Firearms Div. Information Bull. No. 2000-04-FD (Aug. 22, 2000) p. 1, italics added, at