Opinion
TUTTLE, J.* — On December 28, 1976, defendant was charged in an information with a violation of section 246 of the Penal Code.1 At that time section 246 read in pertinent part: “Any person who shall maliciously and wilfully discharge a firearm at an inhabited dwelling house or occupied building, is guilty of a felony, ...” (Stats. 1949, ch. 698, § 1, p. 1200.)2
The question presented in this appeal is of fundamental significance: In determining whether defendant was properly charged with a violation of section 246, should the words “inhabited dwelling house or [15]occupied building” as used in that section be construed to include a 24-foot Winnebago recreational vehicle equipped with living accommodations? Holding that these words did not warrant such a broad construction, the trial court granted defendant’s motion to set aside the information for lack of probable cause (§ 995); the People appeal (§ 1238, subd. (a)(1)).
The evidence received at the preliminary examination may be summarized as follows: On the evening of October 16, 1976, in the Town of Dunlap, Fresno County, defendant was at the Dunlap Inn where he quarreled with several customers who were friends of William Lindsey. The dispute occurred in the presence of Lindsey and commenced when Lindsey’s woman friend denied defendant’s request for a ride home.
Later, Lindsey drove his 24-foot Winnebago recreational vehicle away from the inn; he was accompanied by his friends. He parked nearby for the night on private premises where he customarily parked on weekends; after his friends left Lindsey connected the electrical supply. At about 10:30 p.m., two shotgun blasts were fired into the Winnebago while Lindsey was inside. Defendant was arrested for the shooting and charged with violating section 246.
This would be an easy case if we were called upon to decide whether or not a reasonable man firing a gun into an occupied recreational vehicle would believe that he was breaking some law and that, if apprehended, he would go to jail, unless the prosecutor blundered. Admittedly, defendant is accused of serious wrongdoing. But our job is not to assess the abstract wrongfulness of defendant’s acts, but rather to determine whether these acts violate the statute under which the prosecutor elected to proceed.
While we agree that penal statutes “ ‘ “... should not be frittered away by niceties and refinements at war with the practical administration of justice,. ..” ’ ” (People v. Crenshaw (1946) 74 Cal.App.2d 26, 29 [167 P.2d 781]; accord People v. Malcolm (1975) 47 Cal.App.3d 217, 222 [120 Cal.Rptr. 667]), it appears that the “practical administration” urged by the Attorney General here is too result oriented; it would weaken principles vital to a free society simply to punish one bad actor under an inappropriate statute.
This is not quixotic quibbling; we deal here with principles fundamental to any government under law. A democratic state cannot jail people [16]for anti-social conduct, but only for acts declared by the legislature to be criminal.
“Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.” (McBoyle v. United States (1931) 283 U.S. 25, 27 [75 L.Ed. 816, 818, 51 S.Ct. 340, 341].)
Applying this principle, Justice Holmes in McBoyle reversed the defendant’s conviction of interstate transportation of a stolen motor vehicle because the defendant’s conduct (i.e., interstate transportation of a stolen airplane) was not clearly covered by the statute under which the prosecution was brought; the statute prohibiting the interstate transportation of stolen motor vehicles defined the term “motor vehicle” as “an automobile, automobile truck, automobile wagon, motorcycle, or any other self-propelled vehicle not designed for running on rails.” Although Justice Holmes felt that “... etymologically it is possible to use the word [vehicle] to signify a conveyance working on land, water or air, and sometimes legislation extends the use in that direction,” (supra, 283 U.S. at p. 26 [75 L.Ed. at p. 818, 51 S.Ct. at p. 340]) he concluded that “[w]hen a rule of conduct is laid down in words that evoke in the common mind only the picture of vehicles moving on land, the statute should not be extended to aircraft, simply because it may seem to us that a similar policy applies, or upon the speculation that if the legislature had thought of it, very likely broader words would have been used” (supra, 283 U.S. at p. 27 [75 L.Ed. at pp. 818-819, 51 S.Ct. at p. 341]).
The rule relied upon by Justice Holmes in the McBoyle case was stated over 100 years earlier, in 1820, by Chief Justice Marshall: “It is the legislature, not the court, which is to define a crime, and ordain its punishment. [¶]... The intention of the legislature is to be collected from the words they employ.” (United States v. Wiltberger (1820) 18 U.S. (5 Wheat.) 76, 95 [5 L.Ed. 37, 42].)
It might be said that these concepts were developed in earlier, more peaceful years, and are unrealistic and impractical in light of current crime rates and the need for rigorous law enforcement. But experience in the 20th century teaches us that such rules are not merely outmoded relics of 19th century liberalism, and we know that citizens must beware the [17]government which claims in the public interest the power to imprison those who do acts deemed to be deserving of punishment, even though the statute under which the prosecution is brought does not clearly proscribe such conduct.3
It is true that section 4 states that the common law rule of strict construction of criminal statutes does not apply to the California Penal Code, but the California Supreme Court has stated: “Although the Penal Code commands us to construe its provisions ‘according to the fair import of their terms, with a view to effect its objects and to promote justice’ [§ 4], it is clear the courts cannot go so far as to create an offense by enlarging a statute, by inserting or deleting words, or by giving the terms used false or unusual meanings. (People v. Baker (1968) 69 Cal.2d 44, 50 [69 Cal.Rptr. 595, 442 P.2d 675].) Penal statutes will not be made to reach beyond their plain intent; they include only those offenses coming clearly within the import of their language. (DeMille v. American Fed. of Radio Artists (1947) 31 Cal.2d 139, 156 [187 P.2d 769, 175 A.L.R. 382].) Indeed, ‘Constructive crimes — crimes built up by courts with the aid of inference, implication, and strained interpretation — are repugnant to the spirit and letter of English and American criminal law.’ (Ex parte McNulty (1888) 77 Cal. 164, 168 [19 P. 237].) [¶] . .. [A]s Chief Justice Marshall warned long ago, ‘It would be dangerous, indeed, to carry the principle, that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated.’ (United States v. Wiltberger (1820) 18 U.S. (5 Wheat.) 76, 96 [5 L.Ed. 37, 42].)” (Keeler v. Superior Court (1970) 2 Cal.3d 619, 632 [87 Cal.Rptr. 481, 470 P.2d 617, 40 A.L.R.3d 420].)
Accordingly, when the language used in a penal law is reasonably susceptible of two constructions, ordinarily that construction which is more favorable to the defendant will be adopted. (In re Murdock (1968) 68 Cal.2d 313, 317 [66 Cal.Rptr. 380, 437 P.2d 764]; People v. Valentine [18](1946) 28 Cal.2d 121, 143 [169 P.2d 1]; People v. Ralph (1944) 24 Cal.2d 575, 581 [150 P.2d 401].) The defendant is entitled to the benefit of every reasonable doubt, whether it arises out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute. (Keeler v. Superior Court, supra, 2 Cal.3d 619, 631; People v. Valentine, supra, 28 Cal.2d 121, 143; People v. Ralph, supra, 24 Cal.2d 575, 581.)
To avoid this rule, and to show that defendant here is not entitled to the benefit of such a reasonable doubt, the Attorney General must show that the words “inhabited dwelling house or occupied building” appearing in section 246 cannot reasonably be construed to exclude a 24-foot recreational vehicle, thus proving that the statute is not reasonably susceptible of two constructions. Such an argument founders upon the plain meaning of plain words. A recreational vehicle which is suitable and used for weekend trips, including overnight stays, does not come within either the common meaning or the dictionary definition of “house” or “building.”4
[19]In short, we must decide whether, in the language of Justice Holmes, the “common world” would understand the words “inhabited dwelling house or occupied building” to mean a 24-foot recreational vehicle. Would the ordinary citizen believe that such a vehicle is a house or building, any more than he would believe a 24-foot cabin cruiser or sail boat, or a railroad car, or an airplane is a house or building, even if equipped with bunks and a kitchen? True, he would believe it was wrong and anti-social to fire a gun into it, but that is not the issue before this court. The question is not whether defendant did a bad thing and should have known that his conduct was morally wrong; the question is whether defendant did the act proscribed by the statute under which he was charged.
The answer, we believe, is clear; the case falls squarely within the reasoning of Justice Holmes in the McBoyle case. (McBoyle v. United States, supra, 283 U.S. 25 [75 L.Ed. 816, 51 S.Ct. 340].)
Not only would it be wrong to say that beyond a reasonable doubt a recreational vehicle is included within the phrase “inhabited dwelling house or occupied building,” but it appears that at the time defendant allegedly violated section 246, the Legislature did not intend for a recreational vehicle to come within the ambit of that section.
When section 246 was enacted in 1949 its scope only extended to “inhabited dwelling house[s] or occupied building[s].” Effective January 1, 1977, the phrase “occupied motor vehicle” was added to the statute; thereafter, effective January 1, 1978, the words “inhabited house car, as defined in Section 362 of the Vehicle Code” and “inhabited camper, as defined in Section 243 of the Vehicle Code” were added to section 246. (See fn. 2, ante, at p. 14.)
Ordinarily, and there is nothing to suggest that this is not an ordinary case, the Legislature uses words for some reason and intends them to have some meaning. (People v. Perkins (1951) 37 Cal.2d 62, 63-64 [230 P.2d 353].) Where changes have been introduced to a statute by amendment it is not to be assumed that the changes were without design; by substantially amending a statute the Legislature demonstrates an intent to change the preexisting law. (People v. Perkins, supra, 37 Cal.2d 62, 64; People v. Valentine, supra, 28 Cal.2d 121, 142; People v. Weitzel (1927) 201 Cal. 116, 118-119 [255 P. 792, 52 A.L.R. 811].) Thus, not until January 1, 1977, did the Legislature intend for any type of vehicle to come within the ambit of section 246.
[20]This conclusion is further supported by the fact that when the Legislature added the words “occupied motor vehicle” to section 246, it at the same time deleted the words “discharges a firearm” from subdivision (b) of section 23110 of the Vehicle Code, which prior to the deletion of those words proscribed the throwing of a substance or discharging of a firearm at a vehicle on a highway. Where a statute, with reference to one matter is amended to add a subject, the omission of such subject from a similar statute concerning a related matter, is significant to show that the Legislature intended a substantial change in the statute to which the addition occurred. (Cf. People v. Valentine, supra, 28 Cal.2d 121, 142.)
The Attorney General has suggested that this court should look to the language of subdivision 1 of section 460 as an aid in interpreting the statutory language in question. Subdivision 1 of section 460 reads “Every burglary of an inhabited dwelling house, trailer coach as defined by the Vehicle Code, or building committed in the nighttime, is burglary of the first degree.”5 However, the Attorney General has cited to this court cases interpreting the language of section 459, not subdivision 1 of section 460. Section 459 provides: “Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, bam, stable, outhouse or other building, tent, vessel, railroad car, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code when the doors of such vehicle are locked, aircraft as defined by the Harbors and Navigation Code, mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this section, ‘inhabited’ means currently being used for dwelling purposes, whether occupied or not.”
The language of section 459 is veiy broad and comprehensive, and it even encompasses stmctures that are not used for human habitation. (People v. Stickman (1867) 34 Cal. 242, 245; People v. Searcy (1957) 153 Cal.App.2d 799, 800 [314 P.2d 1002]; People v. Coffee (1921) 52 Cal.App. 118, 120 [198 P. 213].) The cases interpreting section 459 have correctly held that structures within the ambit of that statute can include stmctures that are not permanently affixed to realty. (People v. Burley [21](1938) 26 Cal.App .2d 213, 214-215 [79 P.2d 148] [a popcorn stand on wheels]; People v. Coffee, supra, 52 Cal.App. 118, 122, 123-124 [a chicken house constructed on skids].) As was pointed out in People v. Burley, supra, 26 Cal.App.2d 213, 215: “It should be noted that ‘tent, vessel and railroad car’ are included in the definition [of burglary in section 459], in which connection a ‘tent’ can scarcely be regarded as being permanently affixed to the realty.” But the same broad, comprehensive language that permits such an interpretation of section 459 is absent from subdivision 1 of section 460.
The one case that has dealt with the more restrictive language of subdivision 1 of section 460 held that a caboose was neither an “inhabited dwelling house” nor an “inhabited building” within the meaning of subdivision 1 of section 460; the court observed that a caboose was a “railroad car.” (People v. Jones (1926) 78 Cal.App. 683, 684-685 [248 P. 713].) We note that the words “railroad car” are expressly included in section 459, but are omitted from subdivision 1 of section 460. Such an omission would raise a reasonable inference that the Legislature did not intend for “railroad car[s]” to come within the ambit of subdivision 1 of section 460, even if they were inhabited. (See People v. Valentine, supra, 28 Cal.2d 121, 142.) Similarly, the words “trailer coach,” “house car,” “inhabited camper” and “[locked] vehicle” have been expressly included in section 459, but, except for “trailer coach,” have been omitted from subdivision 1 of section 460. Such an omission also raises a reasonable inference that the Legislature did not intend for such vehicles, even if inhabited, to come within the scope of subdivision 1 of section 460, except for “trailer coach[es]” which are expressly included in that provision. In the instant case, the Attorney General’s allusions to the language of subdivision 1 of section 460 is more of a hindrance to his position than an assistance.
Since defendant’s alleged conduct occurred before the January 1, 1977, change to section 246, this case is controlled by the language of section 246 as it read prior to that change. (See Pen. Code, § 3; 1 Witkin, Cal. Crimes (1963) §§ 9, 17, pp. 11, 20.) At the time in question section 246 merely proscribed the discharging of a firearm into an “inhabited dwelling house or occupied building.” For the reasons stated above, a 24-foot Winnebago recreational vehicle is neither an “inhabited dwelling house” nor an “occupied building” within the meaning of section 246. It follows that the trial court was correct in granting defendant’s section 995 motion.
[22]The order setting aside the information is affirmed.
Franson, J., concurred.
Assigned by the Chairperson of the Judicial Council.
Hereafter, unless otherwise indicated, all statutory references are to sections of the Penal Code.
Effective January 1, 1977, section 246 was amended to read in pertinent part: “Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house or occupied building, or occupied motor vehicle is guilty of a felony, . . .” (Stats. 1976, ch. 1119, § l,p. 5023; see also Stats. 1976, ch. 1139, §§ 153, 350.2, pp. 5106, 5175.)
Then, effective January 1, 1978, section 246 again was amended to read in pertinent part: “Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle, inhabited house car, as defined in Section 362 of the Vehicle Code, or inhabited camper, as defined in Section 243 of the Vehicle Code, is guilty of a felony, ... As used in this section, ‘inhabited’ means currently being used for dwelling purposes, whether occupied or not.” (Stats. 1977, ch. 690, § 1, p. —.)
For example, on June 28, 1935, Germany promulgated the following statute which was hailed as “a mile-stone on the road to a National Socialist Penal Law”: “Any person who commits an act which the law declares to be punishable or which is deserving of penalty according to the fundamental conceptions of a penal law and sound popular feeling, shall be punished. If there is no penal law directly covering an act, it shall be punished under the law of which the fundamental conception applied most nearly to said act.” Further, article 16 of the Soviet Penal Code provides: “Where a socially dangerous act has not been expressly dealt with in the present code, the basis and limits of responsibility in respect thereof shall be determined in conformity with those articles of the code which deal with the crimes most closely resembling it." (See Michael & Weschler, Criminal Law and Its Administration (1940) p. 1080 and p. 1080, fn. 1.)
The word “house” commonly has been defined as:
“[A] structure intended or used for human habitation: a building that serves as one’s residence or domicile esp. as contrasted with a place of business: a building containing living quarters for one or a few families” (Webster’s New Internat. Dict. (3d ed. 1961) p. 1096, col. 1);
“[A] building in which people live; residence for human beings” (Random House Dict. of the Eng. Language (unabridged ed. 1973) p. 688, col. 2);
“A building intended for human habitation, especially one used as the residence of a family or single tenant” (Funk & Wagnalls, Standard Comprehensive Internat. Dict. (Bicentennial ed. 1973) p. 612, col. 1);
“A structure serving as a dwelling for one or several families” (American Heritage Dict. of the Eng. Language (1969) p. 638, col. 1);
“A building for human habitation; esp. a building that is the ordinary dwelling-place of a family” (5 Oxford Eng. Dict. (1933) p. 418, col. 1).
The word “building” commonly has been defined as:
“[A] constructed edifice designed to stand more or less permanently, covering a space of land, usu. covered by a roof and more or less completely enclosed by walls, and serving as a dwelling, storehouse, factory, shelter for animals, or other useful structure — distinguished from structures not designed for occupancy (as fences or monuments) and from structures not intended for use in one place (as boats or trailers) even though subject to occupancy” (italics added) (Webster’s New Internat. Dict. (3d ed. 1961) p. 292, col. 1);
“[A] relatively permanent essentially boxlike construction having a roof and often windows and enclosing within its walls space, usually on more than one level, for any of a wide variety of activities, as living, entertaining, manufacturing, etc.” (Random House Dict. of the Eng. Language (unabridged ed. 1973) p. 194, col. 3);
“An edifice for any use; that which is built, as a dwelling house, barn, etc.” (Funk & Wagnalls Standard Comprehensive Internat. Dict. (Bicentennial ed. 1973) p. 175, col. 1);
“Something that is built; a structure; an edifice” (American Heritage Dict. of the Eng. Language (1960) p. 174, col. 1);
“That which is built; a structure, edifice: now a structure of the nature of a house built where it is to stand” (1 Oxford Eng. Dict. (1933) p. 1162, col. 2).
The word “inhabited” contained in subdivision 1 of section 460 is applicable to and descriptive of “building” and “trailer coach” as well as “dwelling house.” (People v. Lewis (1969) 274 Cal.App.2d 912, 917 [79 Cal.Rptr. 650]; People v. Clinton (1924) 70 Cal.App. 262, 264 [233 P. 78].)