The People v. Liscotti

Filed 1/7/13; pub. order 2/5/13 (opn. received from app. div. 8/30/13)

CERTIFIED FOR PUBLICATION IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF VENTURA APPELLATE DIVISION THE PEOPLE OF THE STATE OF ) CALIFORNIA, ) ) Plaintiff and Respondent, ) (Ventura County Superior Court Case ) Number 2010043342) vs. ) ) DAVID EDWARD LISCOTTI ) Defendant and Appellant. ) )

BY THE COURT:

APPEAL from a judgment from the trial court in the Superior Court of Ventura County, Ryan Wright, Judge. Affirmed.

STATEMENT OF CASE On March 6, 2012, Appellant agreed to a court trial on charges that he possessed a „billy‟ in violation of Penal Code Section 12020(a)(1), now renumbered Penal Code Section 22210. The prosecution submitted on police reports and exhibits, both of which are contained in the record on appeal. Appellant testified at the trial and claimed that he possessed the „billy‟ in anticipated „self defense.‟ He admitted to altering the baseball bat by wrapping it in nylon, boring a hole in the center of the bat, and placing a metal bolt in the core of the bat. Appellant had used the billy once before in a, “Private one-on-one.” At the conclusion of the trial, Appellant asked the Honorable Judge Ryan Wright to declare Penal Code Section 12020(a)(1) unconstitutional. Judge Wright requested briefing on the matter and on March 20, 2012, declared that the Second Amendment of the United States Constitution did not apply to the weapon involved in Appellant‟s case. Judge Wright further declined to rule the statute unconstitutional.

 Henry J. Walsh, Presiding Judge, Nancy L. Ayers and Matthew P. Guasco, Judges.

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GROUNDS ON APPEAL Is possession of a billy, of this nature, protected by the Second Amendment of the United States Constitution, and, if so, is Penal Code Section 12020(a)(1) unconstitutional as a result?

DISCUSSION A. IS POSSESSION OF A BILLY PROTECTED BY THE SECOND AMENDMENT OF THE UNITED STATES CONSTITUION?

The Second Amendment “Confers an individual right to keep and bear arms, at least for the core purpose of allowing law-abiding citizens to „use arms in defense of hearth and home.” District of Colombia v. Heller (2008) 554, U.S. 570 128 S. Ct. 2783, 2821. The right is not absolute or unlimited. It does not extend to all types of weapons and is only extended to types of weapons „typically possessed by law-abiding citizens for lawful purposes.‟ Heller, supra, at 2814. There is a historical exception to the right to bear arms reflecting a prohibition of the right to carry „dangerous and unusual‟ weapons. Heller, supra, at 2817. “…The Heller court recognized that the right to bear arms in self defense, like most constitutional rights, is not unlimited. (cites omitted.) „The right is [is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.‟ ” People v. Mitchell (2012) 209 Cal. App. 4th 1364, 1373. There have been longstanding prohibitions imposed upon rights under the Second Amendment, including limitations on which people have the right to bear arms and restrictions upon locations where they may be possessed. Likewise, the Heller court made it clear that laws regulating possession of dangerous and unusual weapons are not constitutionally suspect because weapons that fall in to this category are not protected by the Second Amendment. United States v. Marzzarella (2010) 614 F. 3d 85, 91. Weapons that are dangerous and unusual are those weapons that are not, “…Typically possessed by law-abiding citizens for lawful purposes.” Heller, supra at 2816. In order to be