[1156]GEORGE, C. J. I respectfully dissent.
By today’s decision, the majority eviscerates a key provision of California’s Roberti-Roos Assault Weapons Control Act of 1989 (AWCA) that is directed at a type of assault weapon commonly used by drug dealers and gang members, the “AK series” semiautomatic rifle. In the face of the clearest possible statutory language—defining “assault weapon” for purposes of the AWCA to encompass “[a]ll AK series [rifles], including but not limited to, the models identified as follows . . .” (Pen. Code, § 12276, subd. (a)(1), italics added)1—the majority inexplicably concludes that this provision designates as assault weapons only the particular AK model rifles that are identified specifically by name in the statute, and does not permit the police, other law enforcement authorities, or the courts to treat as assault weapons other AK series semiautomatic rifles that are only minor variations of the listed AK models unless and until the particular AK series rifle has been explicitly included by name and model on a list promulgated by the Attorney General. As explained below, the statutory language in question was adopted because the Legislature recognized the impossibility of compiling a comprehensive list of all AK series rifles (in light of the circumstance that manufacturers, importers, and sellers traditionally have referred to these weapons by different names and continually have issued new AK model rifles containing only minor variations from previous models). The Legislature, notwithstanding these circumstances, concluded that it was essential—in view of the popularity of AK series rifles among criminals and the relatively inexpensive nature of these weapons—to ensure that all AK series rifles be treated as assault weapons. By refusing to heed the clear statutory language classifying all AK series rifles as assault weapons (whether specifically identified by name and model, or not), the majority creates a loophole in California’s assault weapons control legislation that the Legislature plainly intended to eliminate. Although the detrimental effect of the majority’s holding may be lessened in the future by the expanded reach of the 1999 amendment of the AWCA and the current Attorney General’s apparent willingness to attempt to keep up with firearm manufacturers’ production of new AK models by adding such weapons to an administratively compiled list, in my view today’s decision nonetheless represents a clear and unwarranted frustration of legislative intent.
I
As this court explained in Kasler v. Lockyer (2000) 23 Cal.4th 472, 477-478 [97 Cal.Rptr.2d 334, 2 P.3d 581], before the AWCA was amended [1157]in 1999 to add a generic definition of “assault weapon” (based upon whether a weapon contains specified general features or characteristics, such as a protruding pistol grip and the capacity to accept a detachable magazine or a fixed magazine that can carry more than 10 rounds) (see § 12276.1), the AWCA provided two means by which a weapon could be found to be an “assault weapon” for purposes of the act. These were the following; (1) a weapon was defined as an assault weapon if it was included within the list designated as assault weapons by the Legislature itself in section 12276; and (2) a weapon additionally could be found to an assault weapon if it was “declared” to be an assault weapon in a court action instituted by the Attorney General pursuant to the so-called add-on procedure set forth in section 12276.5.
Although most of the weapons included in the list set forth in section 12276 are identified by specific make and model, in some instances section 12276 refers not to a specific make or model but to a designated “series” of weapons. (§ 12276, subd. (a)(1) [“AK series”], (a)(5) [“Colt AR-15 series”].)2 The particular subdivision of section 12276 that is at issue in this case—section 12276, subdivision (a)(1)—constitutes one such provision, involving “AK series” semiautomatic rifles.
[1158]Section 12276, subdivision (a)(1) currently provides in full:
“As used in this chapter [i.e., the AWCA], ‘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.” (Italics added.)
[1159]Section 12276, subdivision (e), in turn, provides in full: “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.” (Italics added.)
In light of this explicit statutory language, I believe the majority clearly is mistaken in concluding that only those AK series rifles specifically identified by make or model in section 12276, subdivision (a)(1)(A) through (a)(1)(D), are designated by section 12276 itself as assault weapons for purposes of the AWCA. Instead, as the plain language of subdivisions (a) and (e) establishes, the Legislature has provided in section 12276 that all AK series rifles (“including, but not limited to” the specifically identified AK series rifles) are assault weapons for purposes of the AWCA, and further has specified that the term “AK series” includes “all other models that are only variations, with minor differences, of those models listed in subdivision (a), regardless of the manufacturer.”
II
Not only is the majority’s conclusion untenable in view of the plain language of the applicable statutory provisions, but the legislative history of the relevant portions of section 12276 demonstrates that this language was added to the AWCA in 1991 for the specific purpose of making it clear that the firearms that are legislatively designated as assault weapons in section 12276 include all AK series rifles, whether the particular model of the rifle is one specifically listed in section 12276 or not. The majority’s interpretation largely frustrates the objective of the 1991 amendments.
When section 12276 first was enacted in 1989 as part of the original Roberti-Roos Assault Weapons Control Act of 1989 (Stats. 1989, ch. 19, § 3, p. 64), the pertinent provisions of subdivision (a) read as follows:
“As used in this chapter, ‘assault weapon’ shall mean the following firearms known by trade names:
“(a) All of the following specified rifles:
“(1) Avtomat Kalashnikovs (AK) series.
“(2) Uzi and Galil.
“(3) Beretta AR-70 (SC-70).
[1160]“(4) CETME G3.
“(5) Colt AR-15 series and CAR-15 series.
“[Listing other rifles in 18 additional separately numbered subparts ((6)— (23)) of subdivision (a).]” (Stats. 1989, ch. 19, § 3, p. 64.)
Although, as the quoted language indicates, two provisions of the 1989 version of section 12276—subdivision (a)(1) and (5)—referred to a “series” of rifles, rather than to a specific make and model, the 1989 version of section 12276 did not define the term “series.”3
In addition to section 12276, in which the Legislature set forth a list of firearms that it specified were assault weapons for purposes of the AWCA, the 1989 legislation included another provision—section 12276.5—which established an “add-on” procedure that authorizes the Attorney General to institute a proceeding in certain superior courts to obtain a declaration that another model of firearm, not listed in section 12276, should be considered an assault weapon, upon a showing that the other model “is identical to one of the assault weapons listed in section 12276 except for slight modifications and enhancements . . . .” (§ 12276.5, subd. (a)(1).) In 1990, the Legislature added a new subdivision to section 12276.5—section 12276.5, subdivision [1161](g)—that directed the Attorney General to “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 [i.e., pursuant to the add-on procedure of section 12276.5],” and to “distribute the description to all law enforcement agencies.”
[1160]“• All AVTOMAT KALASHNIKOV semiautomatic rifles of military style.
“• By model AKS, AKM, etc.
“• By manufacturer or importer—Norinco, Poly Technologies, etc., and
“• Finally by AVTOMAT KALASHNIKOVS (AK) series.
“The reasoning which led to the final ‘series’ description was based on four factors. They were:
“• Not all AK’s were of ‘military style.’
“• Given the time frame involved, we were not convinced that we could determine all the manufacturers whose AK’s ha[d] been imported.
“• The use of model numbers/names was impractical as wholesalers were advertising weapons with designations that were at odds with the manufacturers description.
“• Manufacturers emphasized the semiautomatic AK’s lineage with the military version. Advertisements also referred to ‘series.’ ”
The memorandum adds: “Since the law took effect, AK 47’s have been assembled in the United States with a whole new set of model numbers . . . .”
[1161]Perhaps because the 1989 version of section 12276 had not included a definition of the term “series,” and because it was unclear whether the descriptive pictures or diagrams to be prepared by the Attorney General under section 12276.5, subdivision (g), were intended to limit the scope of section 12276’s references to “series” of firearms, some confusion and controversy arose with regard to the proper interpretation and application of those subparts of section 12276 that defined assault weapons to include specified “series” of rifles. The 1991 amendments to section 12276 at issue in this case were aimed specifically at eliminating such confusion and at clarifying the Legislature’s intent with regard to the proper application of those portions of section 12276.
As relevant here, the 1991 enactment amended section 12276 by modifying the language of subdivision (a), and by adding two new subdivisions, subdivisions (e) and (f), to section 12276. (Stats. 1991, ch. 954, § 2, pp. 4440-4441.)
As amended in 1991, section 12276, subdivision (a), now reads in relevant part:
“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, 56, 56S, 84S, and 86S.
“(B) Norinco 56, 56S, 84S, and 86S.
“(C) Poly Technologies AKS and AK47.
“(D) MAADI AK47 and ARM.
[Listing other rifles in 20 additional separately numbered subparts ((2) —(21)) of subdivision (a)].” (Stats. 1991, ch. 954, § 2, p. 4440, italics added.)
[1162]Section 12276, subdivisions (e) and (f)—the new subdivisions of section 12276 added by the 1991 legislation—provide as follows: “(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.” (Italics added.)
“(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.“ (Italics added; see fn. 2, ante.)
Thus, as amended in 1991, the explicit language of section 12276, subdivision (a)(1)—“[a]ll AK series including, but not limited to, the models as identified as follows” (italics added)—and of subdivision (e)—“[t]he term ‘series’ includes all other models that are only variations, with minor differences, of those models listed in subdivision (a), regardless of the manufacturer” (italics added)—leaves no doubt that section 12276 itself designates as assault weapons not only the specific AK models listed in subdivision (a)(1), but also “all other models that are variations, with minor differences, of those models . . . , regardless of the manufacturer.”
As the principal author of the 1991 amendment explained, the Legislature determined that such a clarification of the scope of section 12276 was warranted and necessary because of the continuing availability and proliferation of AK series rifles and the attractiveness of such weapons for use in criminal activities.4 Furthermore, in incorporating these amendments into section 12276, the Legislature obviously concluded that the designation as [1163]assault weapons of all AK series rifles, including AK rifles other than those AK rifles specifically identified by make and model in the amended provision, need not and should not be left to separate add-on proceedings under section 12276.5, proceedings which might or might not be instituted by the particular officeholder occupying the position of Attorney General. The add-on provisions of section 12276.5 remain available for use against copycat or knockoff versions of the non-series weapons listed in section 12276, but the Legislature clearly determined that all of the listed series weapons were to be considered assault weapons pursuant to section 12276 itself.
As the majority note, the 1991 amendments to section 12276 constitute only a portion of the 1991 legislation amending the AWCA. One of the objectives of the 1991 enactment was to afford gun owners who had not registered their assault weapons during the 18-month grace period provided by the 1989 legislation an added period of time to register their weapons without incurring criminal liability, and a number of provisions of the 1991 legislation were directed at that objective. The legislative history of the 1991 enactment makes it clear, however, that in order to gain the necessary support of legislators who advocated stronger gun control legislation, the proponents of the extended grace period were required to accept the amendments to section 12276 that are at issue in this case.5
[1164]As this court’s opinion in Kasler v. Lockyer, supra, 23 Cal.4th 472 related at some length, the assault weapons legislation enacted in 1989 was the product of legislative compromise in which legislators with very different views concerning gun control hammered out a statutory measure that was less than fully satisfactory to each of the competing factions. (See id. at pp. 484-488.) The legislative history of the 1991 amendment of the AWCA demonstrates that it too was the product of legislative compromise. The majority’s holding in this case, however, is not faithful to the legislative compromise embodied in the 1991 enactment, but instead largely negates both the revision of section 12276, subdivision (a)(1), and the addition of section 12276, subdivision (e), which the proponents of the initial version of Senate Bill 263 agreed to in order to obtain the necessary support for affording gun owners an extended grace period in which to register assault weapons.
Ill
The majority is compelled to recognize that the “including, but not limited to” language of section 12276, subdivision (a)(1), and the provisions of section 12276, subdivision (e), that were added by the Legislature in 1991 must be given some meaning. Rather than affording this language its plain meaning, however, the majority holds that the statutory provisions in question should be interpreted as “not self-executing” (maj. opn., ante, p. 1150)—that is, as not themselves rendering all AK series rifles “assault weapons” for purposes of the AWCA. Instead, the majority interprets these statutory provisions only as granting the Attorney General the authority to designate an AK series rifle that is not one of the named AK series rifles an “assault weapon,” an authority the Attorney General assertedly may exercise by including the rifle name and model on the list of assault weapons that the Attorney General is required, under section 12276.5, subdivision (h), to compile and submit to the Secretary of State for publication in the California Code of Regulations.6
The majority’s conclusion that the “included but not limited to” language of section 12276, subdivision (a)(1), was not intended to be self-executing [1165]finds absolutely no support in the language of the statute or in its legislative history. Whether or not the Attorney General, pursuant to the separate authority granted the Attorney General by section 12276.5, subdivision (i), to “adopt those rules or regulations that may be necessary or proper to carry out the purposes and intent of this chapter,”7 possesses the authority to include, in the list of assault weapons promulgated pursuant to section 12276.5, subdivision (h), particular models that the Attorney General determines are “AK series” rifles within the meaning of section 12276, subdivisions (a)(1) and (e) even though they are not listed by name in section 12276, subdivision (a)(l)(A)-(a)(l)(D), nothing in section 12276, subdivision (a)(1) or (e), suggests that such an AK series rifle constitutes an assault weapon only if it is so designated by the Attorney General and is included on a list promulgated and published pursuant to section 12276.5, subdivision (h).
By its terms, section 12276, subdivision (a)(1), defines “[a]ll AK series” rifles (italics added) as assault weapons in exactly the same manner as it defines as assault weapons all of the other firearms that are listed in section 12276, subdivisions (a), (b), and (c). There is no suggestion in section 12276 or any other provision of the AWCA that any category of firearm designated as an assault weapon in section 12276 first must be included on the list of weapons promulgated by the Attorney General under section 12276.5, subdivision (h), before it can be found to constitute an assault weapon for purposes of the AWCA. Indeed, a separate provision of the AWCA, section 12280, subdivision (u)—also enacted as part of the 1991 legislation— directly refutes any such notion, providing that “[a]s used in this chapter, the date a firearm is an assault weapon is the earliest of the following: HQ (1) The effective date of an amendment to Section 12276 that adds the designation of the specified firearm, [or] HD 2. The effective date of the list promulgated pursuant to Section 12276.5 that adds or changes the designation of the specified firearm. . . .” (Italics added.) Thus, under the 1991 amendment of section 12276, subdivision (a)(1), “[a]ll AK series” rifles properly are treated as assault weapons as of the effective date of the 1991 legislation, rather than as of any subsequent date that a particular rifle may be included on the list promulgated pursuant to section 11276.5, subdivision (h).
[1166]Not only does the majority’s interpretation of the “including, but not limited to” language of section 12276, subdivision (a)(1), as not self-executing find no support in the language of the statute, but it is plainly inconsistent with the intent of the 1991 amendment of section 12276, subdivision (a)(1). Under the majority’s interpretation, an Attorney General who is hostile to the regulation of assault weapons would be able to thwart the effect of the 1991 amendment relating to AK series rifles simply by failing to add nonspecified AK series rifles to the list promulgated under section 12276.5, subdivision (h). As discussed above, the Legislature intentionally chose to specify in section 12276 that all AK series rifles are assault weapons, rather than to leave the designation of other AK series rifles as assault weapons to add-on proceedings that might or might not be instituted by an Attorney General under section 12276.5. There is nothing in the 1991 legislation that suggests that the Legislature nevertheless intended to leave to an Attorney General the exclusive authority to determine whether, and when, an AK series rifle that is not one of the AK series rifles identified by name in the statute would be designated an assault weapon for purposes of the AWCA.
Indeed, under the majority’s interpretation it appears that notwithstanding the Legislature’s amendment of section 12276 in 1991 to clarify that all AK series rifles, “including, but not limited to” the specifically identified AK model rifles, are assault weapons, that amendment had absolutely no effect on the reach or scope of the AWCA for nearly a decade. As far as my research discloses (and neither the parties nor the majority suggests otherwise), the list of assault weapons that section 12276.5, subdivision (h), directed the Attorney General to promulgate and to file with the Secretary of State for publication in the California Code of Regulations, never was published at all in the 1990’s, and was promulgated and published for the first time in October 2000. (See Cal. Code Regs., tit. 11, §§ 979.10, 979.11, filed Oct. 25, 2000.) In my view, it belies reality to suggest that the Legislature, in enacting the 1991 amendments to section 12276, intended to vest the Attorney General with veto power over whether an AK series rifle is to be considered an assault weapon for purposes of the AWCA.8
In sum, the language and legislative history of the 1991 amendments of section 12276 establish that the Legislature intended to define “assault [1167]weapon” for purposes of the AWCA to include all AK series rifles, including but not limited to the specifically identified AK models, and did not intend to leave all other AK series models unregulated until some future date when an Attorney General might include additional AK series models by name on the list called for by section 12276.5, subdivision (h).
The majority further suggests that its interpretation of section 12276, subdivisions (a)(1) and (e), as “non-self-executing” is justified in order to avoid constitutional vagueness problems. I disagree. As noted, the statutory language defines “assault weapon” for purposes of the chapter to include “[a]ll AK series [semiautomatic rifles] including, but not limited to” a number of specifically named models, and then defines the term “series” to include “all other models that are only variations, with minor differences, of those models listed in subdivision (a), regardless of the manufacturer.” This language is arguably narrower and more specific than other familiar weapons statutes that, for example, prohibit the possession of (1) a “dirk or dagger” (§ 12020, subds. (a)(4), (c)(24)), (2) “an instrument or weapon of the kind commonly known as a . . . billy” (§ 12020, subd. (a)(1)), or (3) a “destructive device” (§ 12301)—and than a well-established statutory provision that, in another context involving a registration requirement, requires the registration of a “security” before it is offered for sale (Corp. Code, § 25019; see, e.g., People v. Figueroa (1986) 41 Cal.3d 714, 734-740 [224 Cal.Rptr. 719, 715 P.2d 680]). Vagueness challenges to these statutes routinely have been rejected by California decisions. (See, e.g., People v. Rubalcava (2000) 23 Cal.4th 322, 332-333 [96 Cal.Rptr.2d 735, 1 P.3d 52]; People v. Grubb (1965) 63 Cal.2d 614, 619-621 [47 Cal.Rptr. 772, 408 P.2d 100]; People v. Quinn (1976) 57 Cal.App.3d 251 [129 Cal.Rptr. 139].)
In any event, even if there may be some circumstances in which application of section 12276, subdivisions (a)(1) and (e) conceivably might raise constitutional vagueness problems as applied to an ordinary gun owner, it is abundantly clear that the statutory provisions in question are not unconstitutionally vague either on their face or as applied to the facts of the present case. The majority’s discussion of the vagueness issue fails to take into account that the provisions of the AWCA apply not only to ordinary owners or possessors of weapons but, perhaps even more significantly, to those who manufacture, import, transport, distribute, or offer such weapons for sale within the state. (§ 12280, subd. (a)(1).) Even if in some circumstances an [1168]ordinary gun owner could not reasonably be expected or required to determine whether a poorly or ambiguously marked rifle is part of the AK series under the “minor differences” standard of section 12276, subdivision (e), a manufacturer, importer, or distributor of semiautomatic weapons surely can be expected to be aware of a weapon’s features and design origins and to be able to apply the statutory standard with reasonable certainty. The 1991 amendments here at issue plainly were intended, at the very least, to bar the introduction of new AK series semiautomatic rifles into the California market, and the provisions unquestionably provide adequate notice to manufacturers, importers, and firearm dealers that “copycat” AK rifles are prohibited in this state. Accordingly, even if in some instances a gun owner might plausibly claim a lack of reasonable notice, the provisions designating all AK series rifles as assault weapons for purposes of the AWCA clearly are not unconstitutionally vague on their face, i.e., in all applications. Contrary to the majority’s assertion, these statutory provisions are not reasonably “ ‘susceptible of two constructions’ ” (maj. opn., ante, pp. 1153-1154). Thus, the constitutional vagueness doctrine provides no justification for the majority to rewrite the provisions so as to eliminate their prohibition of the manufacture, importation, or distribution of all AK series rifles in this state.
Furthermore, although plaintiff J. W. Harrott is not a manufacturer or importer of weapons, it is equally clear that, on the facts of this case, Harrott cannot reasonably complain of a lack of adequate notice. As the majority’s statement of facts discloses, Harrott never possessed the weapon in question, and thus he was not required to determine, subject to potential criminal sanctions, whether it was part of the AK series and therefore a restricted assault weapon. The sheriff expressly informed Harrott of the sheriff’s belief that the rifle was part of the AK series, thereby giving Harrott ample notice that if he did gain possession of the gun he would be subject to criminal prosecution. Ultimately, the weapon’s status under section 12276 was determined in a judicial proceeding, with full notice and hearing, and with no potential for unexpected liability.
Accordingly, the constitutional vagueness doctrine provides no justification for the majority’s determination to read the provisions of section 12276, subdivisions (a)(1) and (e) as non-self-executing.
IV
Furthermore, contrary to the majority’s assertion, this court’s decision in In re Jorge M. (2000) 23 Cal.4th 866 [98 Cal.Rptr.2d 466, 4 P.3d 297] lends no support to the majority’s reading of the statute. Unlike Jorge M., the present case does not involve a criminal prosecution, and thus there is no [1169]need to determine whether plaintiff Harrott did or did not possess the requisite mental state to sustain a criminal conviction. Insofar as Jorge M. concluded that it was inappropriate to interpret the criminal provisions of the AWCA as permitting the imposition of criminal liability without proof of scienter because, under the act, there will be “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” (23 Cal.4th at p. 884), that decision is completely consistent with an interpretation of section 12276, subdivision (a)(1), that recognizes that a rifle may be found to fall within the “AK series” even if it is not one of the specific AK models listed in that subdivision or is not identified by name in the list compiled by the Attorney General. Under Jorge M., if a rifle is found to be an assault weapon because it is merely a variation of one of the listed AK models, the possessor of the weapon will be subject to criminal conviction only if the prosecution proves that he or she “knew or reasonably should have known” that the firearm possessed the characteristics bringing it within the act. Even when a criminal sanction is not available because the possessor lacks the requisite scienter required by Jorge M., treating a semiautomatic rifle that is a variation of one of the listed AK models as an assault weapon still will significantly serve the purposes of the 1991 legislation by permitting law enforcement officers to confiscate (or, as in this case, to withhold) a dangerous weapon that otherwise might be used violently in the future against law enforcement officers or crime victims.
Similarly, the majority embraces a clearly specious argument when it endorses the contention of the National Rifle Association (NRA) that the trial court’s interpretation of the statute is invalid because it “could lead to the same weapon being treated differently from county to county and even within the same county.” Whenever the terms of a statute are to be applied in the context of particular cases, there is always the possibility that different triers of fact may arrive at different conclusions on similar showings. Thus, even with regard to those semiautomatic weapons that are specifically listed by make and model in section 12276, if the markings on a weapon have been obliterated or if the possessor of the weapon claims that the weapon is actually a lawful weapon that has been improperly marked, it is always possible that different triers of fact may come to different conclusions as to whether an individual firearm falls within the statute. Similarly, in determining whether or not a particular firearm is an assault weapon in light of the generic characteristics set forth in the recently enacted provisions of section 12276.1, it is possible that different triers of fact could reach different conclusions on similar evidence. This circumstance, however, does not mean that these statutory standards do not each constitute uniform, statewide definitions of the term “assault weapon,” just as the term “dirk or dagger,” [1170]for example, constitutes a single, statewide standard even though different triers of fact could reach different conclusions as to whether a particular implement or instrument falls within that category. Under section 12276, subdivision (a)(1), in all counties in this state “[a]ll AK series” semiautomatic rifles, “including but not limited to” the specifically listed AK models, are “assault weapons” for purposes of the AWCA, and, in all counties, “ ‘series’ includes all other models that are only variations, with minor differences, of those models listed in subdivision (a), regardless of the manufacturer” (id., subd. (e)). The NRA’s suggestion to the contrary is totally without merit.
V
Finally, on the record in this case, I believe the trial court properly found that the semiautomatic rifle in question is an “AK series” rifle under section 12276, subdivision (a)(1), and thus constitutes an “assault weapon” for purposes of the AWCA.
As the majority acknowledges, the petition for writ of mandate filed by Harrott in the superior court itself identified the semiautomatic rifle in question as an “AK47 2822.” Nonetheless, Harrott contended in the trial court that the weapon does not fall within the category of “AK series” rifles within the meaning of section 12276, subdivision (a)(1), because the weapon does not have the specific “markings” designated in the 1993 edition of the Assault Weapons Identification Guide prepared by the California Attorney General.
Two experts testified at the hearing in the trial court. Although both testified that the rifle is very similar both in appearance and in function to an AK rifle, and that they both would consider the rifle to be an “AK-type” weapon, the experts also testified that in their opinion the rifle is not an “AK series” weapon. Each expert acknowledged, however, that he based his opinion that the rifle was not an “AK series” rifle on the circumstance that, at the time of the hearing, the California Attorney General had taken the position that a weapon fell within the “AK series” only if the weapon had the “original markings and a nomenclature of a model and manufacturer.”
At the conclusion of the hearing, the trial court determined, on the basis of the factual matters to which the experts had testified, that the weapon in question constituted an “AK series” weapon as defined by the Legislature. The trial court explained that under the statutory language, “a weapon which merely looks like an AK47 would not, by that alone, be part of the AK series,” but that “a weapon which looks like an AK weapon and functions [1171]like one and is identical to one with only minor differences would be an AK series weapon.” The trial court found that the evidence established that there are no significant differences between the weapon at issue and an AK47, and thus that the rifle is an AK series weapon. The court noted that the experts’ opinion testimony indicating that the rifle was not an AK series weapon was based on an interpretation of the statute that was not supported by the statutory language.
In view of the evidence presented at the hearing, I believe the trial court properly found that the rifle in question is an “AK series” rifle under section 12776, subdivision (a)(1).
Accordingly, I conclude that the judgment of the Court of Appeal, which overturned the ruling of the trial court, should be reversed.
Werdegar, J., concurred.
All further statutory references are to the Penal Code, unless otherwise indicated.
Section 12276 provides in full:
“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.
“(2) UZI and Galil.
“(3) Beretta AR-70.
“(4) CETME Sporter.
“(5) Colt AR-15 series.
“(6) Daewoo K-l, K-2, Max 1, Max 2, AR 100, and AR 110C.
“(7) Fabrique Nationale FAL, LAR, FNC, 308 Match, and Sporter.
“(8) MAS 223.
“(9) HK-91, HK-93, HK-94, and HK-PSG-1.
“(10) The following MAC types:
“(A) RPB Industries Inc. sMIO and sMll.
“(B) SWD Incorporated Mil.
“(11) SKS with detachable magazine.
“(12) SIG AMT, PE-57, SG 550, and SG 551.
“(13) Springfield Armory BM59 and SAR-48.
“(14) Sterling MK-6.
“(15) Steyer AUG.
“(16) Valmet M62S, M71S, and M78S.
“(17) Armalite AR-180.
“(18) Bushmaster Assault Rifle.
“(19) Calico M-900.
[1158]“(20) J&R ENG M-68.
“(21) Weaver Arms Nighthawk.
“(b) All of the following specified pistols:
“(1) UZI.
“(2) Encom MP-9 and MP-45.
“(3) The following MAC types:
“(A) RPB Industries Inc. sMIO and sMll.
“(B) SWD Incorporated M-ll.
“(C) Advance Armament Inc. M-ll.
“(D) Military Armament Corp. Ingram M-ll.
“(4) Intratec TEC-9.
“(5) Sites Spectre.
“(6) Sterling MK-7.
“(7) Calico M-950.
“(8) Bushmaster Pistol.
“(c) All of the following specified shotguns:
“(1) Franchi SPAS 12 and LAW 12.
“(2) Striker 12.
“(3) The Streetsweeper type S/S Inc. SS/12.
“(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.”
A memorandum in the legislative history materials of the 1991 legislation explains why, in the 1989 version of section 12276, the AK rifles were listed as a series, whereas most of the other designated weapons were listed by specific manufacturer and model. The memorandum was written in February 1991 by S.C. Helsley, Assistant Director, Investigation and Enforcement Branch of the California Department of Justice, who apparently was directly and extensively involved in producing the list of assault weapons included in the 1989 legislation.
Assistant Director Helsley’s memorandum explains in pertinent part: “My function throughout the process was to generate lists of weapons to be banned or exempted. As these lists were produced, there was ongoing anxiety about how to describe the weapons in the legislation. The ‘AK’ is the best example. Our attempt to describe them had four distinct stages. They were: [1163]weapons are designated. Therefore, since the AK was an assault weapon that was relatively inexpensive and popular for drug dealers and gang members, the Legislature by designating AK series, intended to cover all models regardless of the manufacturer of the AK.
“The Attorney General believed that by listing the most popular models in the AK series we would enhance public awareness and enforcement actions. You will note, however, that the list is not inclusive by the models listed because of the original legislative intent to regulate all AK models. . . .” (Sen. David Roberti, letter to Governor Wilson re: Sen. Bill 263 (1990-1991 Reg. Sess.) Sept. 19, 1991, italics added.)
Although Senator Roberti’s letter does not refer explicitly to legislative debates or discussions and thus may not be relied upon to establish general legislative intent (see, e.g., California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699-701 [170 Cal.Rptr. 817, 621 P.2d 856]), Senator Roberti’s letter, like the letter by Senator Rogers to Governor Deukmejian referred to by the majority (see maj. opn., ante, p. 1147, fn. 4), provides a clear expression of the author’s view of the measure, a view that is totally consistent with the legislative language and history.
In a letter written to Governor Wilson at the time the enrolled version of the 1991 amendment was before the Governor for his signature or veto, Senator Roberti, the principal sponsor of the 1991 legislation (as well as a principal sponsor of the original Roberti-Roos Assault Weapons Control Act of 1989), explained: “The enrolled version of the bill before you does not add any new weapons to the banned assault weapons list. In fact, four weapons were deleted from the list. The NRA arguments that there are now additional weapons on the list result from a disagreement over the meaning of the word ‘series’ in the original law signed by Governor Deukmejian. The legislative intent regarding the word series was to cover all models of weapons listed in the category. The most important example is that of the ‘AK series. ’
“Law enforcement believed, and gun experts confirmed, that there would be no agreement on a comprehensive list of all models of AKs. The reason for this is that manufacturers, importers, and sellers call the weapons by different names. There is no systematic procedure by which
As initially introduced in the Senate on January 31, 1991, Senate Bill No. 263 (1990-1991 Reg. Sess.) (hereafter Sen. Bill 263) did not propose any changes in section 12276, and was concerned only with extending the deadline for registering assault weapons and directing the Department of Justice to conduct a public education program to promote such registration. (Sen. Bill 263, as introduced Jan. 31,1991.) After relatively minor amendments, Sen. Bill 263 was approved by the Senate in that form, but on April 3, 1991, the bill was amended in the Assembly to include, among other changes, some modification to the language of section 12276. (Sen. Bill 263, as amended Apr. 3, 1991, § 2, pp. 5-6.) The final changes to Sen. Bill 263—including the new version of section 12276, subdivision (a), and the addition of section 12276, subdivisions (e) and (f)—did not occur until shortly before the end of the legislative session, when the bill was amended in the Assembly for the last time on September 5, 1991. [1164](Sen. Bill 263, as amended Sept. 5, 1991, § 2, pp. 15-18.) After approval by both houses, the bill was signed into law by the Governor on October 13, 1991.
Contemporary media accounts confirm that the proponents of the extended grace or amnesty period for registration obtained the necessary support for the passage of the 1991 legislation by agreeing to the revised provisions of section 12276 that related primarily to the treatment of all “AK series” riñes as assault weapons. (See, e.g., Ingram, Lungren, Roberti OK Rewriting of ’89 Gun Law, L.A. Times (Aug. 29, 1991) p. A 3; Ingram, Bill Extending Assault Gun Deadline Passes Committee, L.A. Times (Feb. 14, 1991) p. A 42.)
Section 12276.5, subdivision (h), provides in full: “The Attorney General shall 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. Any declaration that [1165]a specified firearm is an assault weapon shall be implemented by the Attorney General who, within 90 days, shall promulgate an amended list which shall include the specified firearm declared to be an assault weapon. The Attorney General shall file the amended list with the Secretary of State for publication in the California Code of Regulations. HQ Chapter 3.5 (commencing with Section 11340) of Division 3 of Title 2 of the Government Code, pertaining to the adoption of rules and regulations, shall not apply to any list of assault weapons promulgated pursuant to this section.”
Section 12276.5, subdivision (i), provides in full: “The Attorney General shall adopt those rules or regulations that may be necessary or proper to carry out the purposes and intent of this chapter.”
Although the majority asserts that its interpretation of section 12276, subdivisions (a)(1) and (e), as not self-executing is supported by the doctrine that accords deference to an administrative agency’s construction of a statute (maj. opn., ante, pp. 1153-1154), that doctrine has considerably less force in the context of an administrative interpretation, like that involved here, that is espoused for the first time by an administrative official in an appellate brief and that is not embodied in either an administrative regulation or in a similar administrative ruling that has been made after formal proceedings in which adversarial views are aired. (See, e.g., United States v. Mead Corporation (2001) 533 U.S. 218,_[121 S.Ct. 2164, 2168-2175, 150 L.Ed.2d 292]; Bowen v. Georgetown Univ. Hospital (1988) 488 U.S. 204, [116721]2-213 [109 S.Ct. 468, 473-474, 102 L.Ed.2d 493]; Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 9 [78 Cal.Rptr.2d 1, 960 P.2d 1031]; People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 311 [58 Cal.Rptr.2d 855, 926 P.2d 1042]; Jones v. Tracy School Dist. (1980) 27 Cal.3d 99, 107 [165 Cal.Rptr. 100, 611 P.2d 441]; Culligan Water Conditioning v. State Bd. of Equalization (1976) 17 Cal.3d 86, 92-93 [130 Cal.Rptr. 321, 550 P.2d 593].)