As discussed yesterday, the courts have upheld the constitutionality of California Penal Code section 12020(a) — the law with which bikers are being charged for carrying decorative leashes, aka “getback whips” on their motorcycles.
In upholding the constitutionality of the statute, both generally and as applied to Fannin, the court offered a definition of the word slungshot. “California case law provides a clear definition of slungshot: ‘a small mass of metal or stone fixed on a flexible handle, strap, or the like, used as a weapon.” ( People v. Fannin (2001) 91 Cal.App. 4th 1399, 1401-02, citing People v. Williams (1929) 100 Cal.App.149, emphasis added.)
It would appear that this definition could reasonably be applied to the decorative leashes at issue here. Specifically, the leashes are a small mass of metal (the metal clip) on a flexible handle or strap (the leather strap).
However, Fannin provides language that may be crucial in defending a charge of PC 12020(a) for possession of a decorative motorcycle leash. The Fannin Court examined several cases wherein the defendants were charged with carrying objects that were obviously designed to be used as weapons, such as “56 one-inch metal washers, strung on rawhide . . . , knotted to hold the washers together and form a seven-and-a-half-inch handle that could be looped around the wrist.” In those circumstances, mere possession was enough to support a conviction under the statute.
However, the Court acknowledged that many legal, everyday items, such as a bicycle lock or table leg, could fall within the scope of the statute. As such, the government may look to suspicious circumstances to prove that such an item was intended to be used as a weapon.
The Court explains, “The Legislature here sought to outlaw the classic instruments of violence and their homemade equivalents; the Legislature sought likewise to outlaw possession of the sometimes-useful object when the attendant circumstances, including the time, place, destination of the possessor, the alteration of the object from standard form, and other relevant facts indicated that the possessor would use the object for a dangerous, not harmless, purpose.” (Id. at 1403, citing People v. Grubb (1965) 63 Cal.2d 614.)
The Court continues, however, to explain that intent to use such an object as a weapon is not vital to a conviction under the statute. “Intent to use a weapon is not an element of the crime of weapon possession. [Citations.] However, if the object is not a weapon per se, but an instrument with ordinary innocent uses, the prosecution must prove that the object was possessed as a weapon. The only way to meet that burden is by evidence indicating that the possessor would use the object for a dangerous, not harmless, purpose.” ( Id. at 1404, citations omitted; emphasis in original.)
The Court continues, “The evidence may be circumstantial, and may be rebutted by the defendant with evidence of ‘innocent usage.’ [. . .] Intended use is not an element of weapon possession, but the prosecution always bears the burden of proving that the defendant possessed a weapon.” (Id., citations omitted.)
Tomorrow: Tips from the motorcycle accident lawyers at Riderz Law on defending a charge of Penal Code section 12020(a), and a tip that may help to avoid police harassment altogether.