P. v. Zick

Filed 8/8/08 P. v. Zick CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. John B. Gibson, Judge. Reversed.

Wallace B. Farrell and Ann Cunningham for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, for Plaintiff and Respondent.

In an amended information, the District Attorney of San Bernardino County charged defendant and appellant, Harold Leon Zick (hereafter defendant), with two counts of violating Health and Safety Code section 12702, subdivision (c)^[1]by possessing dangerous fireworks, having a total net weight of 7,500 grains or more of explosive material, without a permit.^[2] The charges stem from two separate incidents. The first (which is the basis for the charge set out in count 1), occurred on April 16, 2005, when a deputy sheriff stopped defendants tractor-trailer rig as defendant was driving south on Highway 127 near Baker because the trailer did not have a visible license plate. Defendant had just purchased the trailer and produced the necessary paperwork. In the course of the stop, the deputy learned that defendant was hauling fireworks, and because he did not know whether defendant was violating any laws, the deputy contacted the California Highway Patrol (CHP). Two CHP officers arrived at the scene and, among other things, reviewed the bill of lading defendant had presented to the sheriffs deputy. That bill of lading showed that defendant was hauling the fireworks from Pahrump, Nevada, to Elsinore, Missouri, and that Highway 127 was part of defendants designated route. After discussing the situation with each other, and contacting a CHP commercial enforcement officer for additional advice, the CHP officers determined that defendant had not violated any California Vehicle Code provision. In the meantime, a second deputy sheriff, assigned to the bomb and arson detail, arrived at the scene. This second deputy concluded that defendant was required to have a permit from the State Fire Marshal. As a result, the deputy issued defendant a citation for violating section 12702, subdivision (c), and impounded defendants trailer. When later inspected, the sheriffs deputies determined that the trailer contained 320 cases of fireworks with over 21,000 grains of explosive material.

The second incident (which is the basis for count 2) occurred on June 12, 2005, after a deputy state fire marshal spotted defendant driving his tractor-trailer rig in Searchlight, Nevada, and then apparently followed defendant to a truck stop in Barstow.^[3] Law enforcement officers arrested defendant at the truck stop after it was determined that he again was transporting dangerous fireworks without a permit.

At trial, defendant moved to dismiss the charges on the ground that they were preempted by federal law. After the trial court denied that motion, a jury found defendant guilty as charged. The trial court suspended imposition of sentence and placed defendant on probation for a period of three years, a condition of which required that he serve 90 days in jail.

Defendant raises various claims of error in this appeal, the first of which is that state law prohibiting the possession of dangerous fireworks is preempted by federal law regarding interstate transportation of goods, in general, and interstate transportation of hazardous materials in particular. Because the charge against him was preempted by federal law, defendant asserts that we must reverse the judgment. We asked the parties to submit supplemental briefing on the question of whether the permit requirement in section 12677 applies to a person engaged in the interstate transportation of fireworks. As we explain below, we conclude that it does not. Consequently, if defendants possession of dangerous fireworks occurred in the course of transporting those fireworks from one state to another, then section 12677, which prohibits possession of dangerous fireworks without a permit, does not apply. However, and contrary to defendants assertion, the evidence on the issue of whether he possessed the fireworks only in the course of transporting them from Nevada to Missouri is conflicting, at least with respect to count 2, the June 12 incident. Because the question is one of fact, it is an issue for the jury to resolve.

The trial court ruled otherwise and instead found as a matter of law that on June 11 and June 12, defendant was not engaged in the interstate transportation of fireworks when he was cited for violating state law. Although the trial court did not make a similar finding with respect to the April incident, it nevertheless precluded defendant from presenting any evidence at trial regarding the intended destination of the fireworks and the interstate transportation issue. The trial court also precluded defendant from presenting any evidence to explain why on June 12, defendant was in Barstow, a location that is not on a direct route from Pahrump, Nevada to Missouri. Because we conclude, as explained below, that section 12677 does not apply to the interstate transportation of fireworks, the issue of whether defendant was engaged in interstate transportation should have been submitted to the jury, as defendant asserted. The trial courts ruling had the effect of depriving defendant of a defense to the charges. Therefore, we will reverse the judgment. Our resolution of this first issue renders defendants remaining claims of error moot and therefore we will not address those claims.

DISCUSSION

As previously noted, when stopped on April 16, 2005, on Highway 127 near Baker, California, defendant presented a bill of lading that showed he was transporting fireworks to Missouri, and that Highway 127 was on the route designated for his travel to that state. After lengthy discussion between personnel from various law enforcement agencies, including the State Fire Marshal, defendant was cited for possessing fireworks in violation of section 12702, subdivision (c). Defendant was cited again for the same violation on June 12, 2005, when he was stopped in Barstow. Although the record on appeal does not include evidence to show that defendant had a bill of lading in June when he was detained in Barstow, defendant did tell law enforcement officers that he was transporting fireworks to Missouri, and claimed that he had deviated from his designated route because he had engine trouble and was looking for a safe haven, i.e., a location designated by state law as a place where vehicles carrying dangerous fireworks or other specified types of explosives are permitted to stop and park. (See, e.g., Veh. Code, 31602, subd. (c), which makes it a misdemeanor for the driver of any vehicle transporting explosives to stop at any place not designated as a safe stopping place unless the vehicle is disabled . . . . A safe stopping place is any location designated by the Department of the California Highway Patrol where the driver may stop for food, fuel or others necessary reasons . . . .)

At the outset we note, as defendant correctly points out, that section 12702, subdivision (c), the section defendant was charged with violating, is a penalty provision in that it does not specify a substantive offense and only specifies the penalty that applies if a person commits a violation that involves dangerous fireworks that have a total net weight of 7,500 grains or more of explosive material. As pertinent here, the crime, or violation, to which that penalty attaches is defined in section 12677, which makes it unlawful for any person to possess dangerous fireworks without holding a valid permit. Despite the incorrect designation of the crime, the trial court did instruct the jury in this case according to both section 12677 and section 12702, subdivision (c). Consequently, in finding defendant guilty of the charged crimes, the jury had to find that defendant possessed dangerous fireworks without a permit in violation of section 12677.

The dispositive issue in this appeal, and therefore the only issue we will address, is whether defendant was required to have a permit if his possession of the fireworks occurred only in the course of transporting them from one state to another.^[4] That issue presents a question of law, the resolution of which in our view depends on the Legislatures intent in enacting the legislation. To determine that intent, we look first to the language of the statute. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387.)

Section 12677, as set out above, prohibits possession of dangerous fireworks without a permit. If the Legislature intended section 12677 to apply to persons possessing fireworks in the course of transporting them through California, from one state to another, the statute should include a provision requiring such persons to have a permit. The term permit is defined in section 12522, and means the nontransferable permission granted by the public agency having local jurisdiction to a licensee for the purposes of establishing and maintaining a place where fireworks are manufactured, constructed, produced, packaged, stored, sold, exchanged, discharged, or used, or the nontransferable permission granted by the public agency having local jurisdiction or by the State Fire Marshal to a licensee for the purpose of transporting fireworks. ( 12522, emphasis added.) Section 12517 defines a licensee as any person 21 years of age or older holding a fireworks license issued pursuant to Chapter 5 (commencing with Section 12570). ( 12517.) Section 12571 through section 12579 specify various types of licenses that the State Fire Marshal has authority to issue ( 12570), including a manufacturers license ( 12571), wholesalers license ( 12572), importers and exporters license ( 12573), retail sales license ( 12574), three types of public display licenses ( 12575, 12576 & 12577) and a pyrotechnic operator license ( 12578). None of the license provisions apply to a person transporting dangerous fireworks through California. In fact, the only reference to transportation contained in the licensing section is set out in section 12579, which specifies that [a]ll licensees may transport the class of fireworks for which they hold a valid license as provided in section 12651. Section 12651, in turn, states in pertinent part that, Any person holding a valid license for the manufacture, wholesale, or import and export of dangerous fireworks or pyrotechnic devices may transport any class of fireworks or pyrotechnic devices authorized by such license.

We are persuaded from our review of the express provisions of the statute that the Legislature did not intend section 12677 to apply to a person transporting fireworks through California en route to another state. Consequently, if defendants possession of the fireworks occurred only in the course of such transportation, he did not violate section 12677.^[5] In other words, a claim that the fireworks were only possessed in the course of transporting them through California, from one state to another, is a defense to the charge of violating section 12677. The trial court in this case did not address the legal issue, and instead found, as a matter of law, that defendant was not involved in the interstate transportation of fireworks because on June 12 defendant was in Barstow, a location that was not on defendants route from Pahrump, Nevada, where he picked up the fireworks, to Elsinore, Missouri, where defendant claimed he was delivering the fireworks. The trial court erred in resolving the issue as a matter of law because the issue is one of fact, and at least with respect to the June charge alleged in count 2, the evidence pertinent to that issue was conflicting. Therefore, we will reverse the judgment on count 2 and will remand the matter to the trial court for a new trial on that charge.

As previously noted, defendant testified that he was in Barstow on June 12 because he had engine trouble and was first looking for a safe place to stop, and then was going to take his truck to be repaired. If the jury believed defendant, then his deviation from his prescribed route does not negate the defense that he was transporting the fireworks through California en route from Nevada to Missouri. Resolution of the issue turns on defendants credibility and defendants credibility is a question for the jury, not the trial court, to resolve. Moreover, even if there were no conflict in the evidence, such that the trial court correctly resolved the issue as a matter of law, the fact that defendant had deviated from his designated route was only relevant to the charge alleged to have occurred on June 12, and had no bearing on the April 16 charge.

In contrast with the evidence pertinent to the June charge, the evidence regarding the April 16 charge is undisputeddefendant was traveling from Nevada through California in accordance with his prescribed route plan, and otherwise in compliance with pertinent federal laws. That undisputed evidence in turn establishes as a matter of law that defendants possession of the fireworks occurred only in the course of his transporting those items through California. Because we conclude that section 12677 does not apply to such conduct, we must also conclude that the evidence is insufficient to prove defendant violated section 12677. Therefore, we reverse the judgment on that count with directions to the trial court to enter a judgment of acquittal on that charge.

DISPOSITION

The judgment is reversed and the matter remanded to the trial court for a new trial on count 2, and with directions to enter a judgment of acquittal on count 1.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

Acting P.J.

We concur:

/s/ Gaut

J.

/s/ Miller

J.

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^[1]All further statutory references are to the Health and Safety Code unless indicated otherwise.

^[2]Although charged in the amended information, section 12702, subdivision (c) is a penalty provision. The crime is defined in section 12677 which makes it unlawful for any person to possess dangerous fireworks without holding a valid permit. Dangerous fireworks, as defined in section 12505, include firecrackers, skyrockets, and Roman candles. ( 12505, subds. (b), (c) & (d).)

^[3]The record suggests that the fire marshals interest in defendant stemmed from a suspicion that he was unlawfully selling dangerous fireworks in California.

^[4]There is no issue in this appeal regarding whether defendant complied with the pertinent federal laws regarding the transportation of hazardous materials.

^[5]We need not determine whether defendants conduct violated any other state law, because defendant was charged only with violating section 12677.