PROCEDURAL
HISTORY

(Name Deleted) (Name Deleted) was accused by a First
Amended Information of violating Health and Safety Code section 12702(c) in two
counts.  The statute declares that:

“(c) Any person who violates this part involving any
dangerous fireworks item, as defined in section 12505, or any combination of
any dangerous fireworks items, having the total weight of explosive material of
7,500 grains or more, is guilty of a public offense, and upon conviction
thereof shall be punished by imprisonment in the state prison, or in the county
jail for not more than one year, or by a fine of not more than five thousand
dollars ($5000), or by both fine and imprisonment.”

          
Section 12505 delineates those compounds, chemicals and devices
constituting dangerous fireworks.

Additionally, Mr. (Name Deleted) was
alleged to have committed an offense while released on his own
recognizance.  Preceding trial on the
substantive counts, trial as to the enhancement allegation was bifurcated.

Trial by jury commenced on June 20,
2006, and concluded on June 30, 2006.  A
verdict of guilty was returned as to both counts.

Trial on the enhancement allegation has
yet to commence. 

STATEMENT OF FACTS

A.      Count 1

On April 16, 2005, (Name Deleted) (Name
Deleted) drove a tractor-trailer vehicle from Pahrump, Nevada, bound for
Elsinore, Missouri. (RT 129, 306) His route would have taken him south on
Highway 127 to Interstate 40, a distance of some forty miles through
California. (RT 312) The trailer contained boxes of fireworks with a combined
weight exceeding 7500 grains. (RT 209)

Mr. (Name Deleted) was in possession of
an operator’s license with a hazardous materials endorsement. (RT 219) He
further had a federal routing slip designating the highways upon which the
cargo could pass, one of which was Highway 127. (RT 255) In addition, Mr. (Name
Deleted) possessed a bill of lading reflecting the nature of the cargo and its
destination in Missouri. (RT 128, 129 218; Exhibit 23)  The trailer displayed the hazardous materials
placards mandated by the federal Department of Transportation.  (RT 128, 162, 179; Exhibits 13 and
15.)

Deputy (Name Deleted) of the Sheriff’s
Office for the County of San Bernardino was on duty on April 16, 2005, and was
engaged in patrol duties. (RT 109) At approximately 7:30 P.M., Deputy (Name
Deleted) observed a truck and trailer combination pass his location, proceeding
south on Highway 127, near Baker, California. (RT 110-111) That roadway was
listed on the bill of lading as a highway designated for hazardous materials
transport. (RT 127, 307, 308.)

In that the trailer did not bear an
observable license plate, the vehicle was detained by Deputy(Name Deleted).  (RT 110) 
After a routine inquiry,   observed boxes of All-American Blockbuster
Fireworks in the trailer. (RT117- 118) The boxes were properly labeled with
federal Department of Transportation stickers. 
(RT 162; Exhibit 9)

Deputy (Name Deleted) was unaware
whether any laws relating to the shipment of those fireworks had been violated;
consequently, he contacted the California Highway Patrol.  (RT 118) Within fifteen minutes or so,
Officers Terrell Hayes and Jeffrey Secrist arrived.  (RT 285, 293) They were asked by Deputy (Name
Deleted) whether the fireworks shipment was in violation of any provisions of
the California Vehicle Code.  (RT
287)  The officers reviewed the bill of
lading, discussed the applicability of the California Code of Regulations and consulted
with a commercial vehicle officer.  (RT
287, 288, 290) After “putting their minds together,” the officers concluded
that there was no violation of law and imparted their conclusion to Mr. (Name
Deleted). (RT 290, 299)

Approximately one hour after the initial
detention, Detective (Name Deleted) arrived, having been summoned by Deputy (Name
Deleted).  (RT 118, 170) Detective (Name
Deleted) was, on that date, assigned to the Arson/Bomb Detail of the Sheriff’s
Office.  (RT 190) The officer inspected
the load and spoke to Deputy (Name Deleted). 
(RT 118, 196)

Thereafter, Deputy (Name Deleted) issued
a citation to (Name Deleted) (Name Deleted) for violation of Health and Safety
Code section 12702(c). (RT 120; Exhibit 25) The citation was issued “in order
to give the experts time to analyze the fireworks,” according to Deputy (Name
Deleted). (RT 136, Lines 5-7)

Detective (Name Deleted) testified that,
based on “some training” regarding permit requirements for interstate
transportation of fireworks, Mr. (Name Deleted) was told that “he is required
to have a permit issued by the State Fire Marshal, whether or not he’s driving
them through California going to New York or wherever.”  (RT 247, Lines 16-19)

However, the only
representative of the State Fire Marshal to testify, Senior Deputy Marge (Name
Deleted) , related the following:

“Q     (By Mr. (Name
Deleted) ):  You’re aware that fireworks
are brought into Long          Beach
harbor?

A       Yes.

Q       And that
those fireworks can be transported from the harbor out to destinations outside
California without a permit from the State Fire Marshal? Yes or no?

A       We don’t
issue a permit, but we do approve the loads through customs.”

(RT 316, Lines 7 through 14)

B.      Count 2

On June 11, 2005, (Name Deleted) (Name
Deleted) again endeavored to transport fireworks to Missouri. (RT 307, 325)
Again, he had the proper federal paperwork and placards. (RT 162-164) Somewhere
north of Searchlight, Nevada, a red warning light illuminated, indicating engine
overheating or loss of oil pressure. (RT 326) Mr. (Name Deleted) decided to
stop at a designated “safe haven.”  A
safe haven is a parking area approved by the federal Department of
Transportation for leaving hazardous materials. (RT 314, 327)

Mr. (Name Deleted) decided to drive to
Barstow, California, to locate a safe haven. 
(RT 314) His choice was based on two factors.  First, federal regulations forbid driving
through Las Vegas, Nevada. (RT 309) Second, Mr. (Name Deleted) believed that
the climb to Kingman, Arizona, would exacerbate the overheating.  (RT 315)

Mr. (Name Deleted) parked at the Pilot
Truck Stop in Barstow on June 11, 2005. 
(RT 310)  Mr. (Name Deleted)
understood that the Pilot Truck Stop was not a designated safe haven.  (RT 328) However, Mr. (Name Deleted) arrived
at the truck stop at 5:00 A.M. on June 12, 2005.   He exp(Name Deleted) ned that his intent was
to sleep and, later in the morning, inquire as to a safe haven. (RT 328)

In the meantime, Senior Deputy State
Fire Marshal (Name Deleted)  had observed
the truck in Pahrump at 5:00 P.M. on June 11, 2005, (RT 161, 175) again in
Searchlight near midnight,  (RT 178) and
at the Pilot Truck Stop at 3:00 A.M. on June 12, 2005. (RT 184)

Senior Deputy (Name Deleted)  approached Mr. (Name Deleted) and spoke to him
regarding the contents of the trailer. (RT 185) After an examination of the
contents, Mr. (Name Deleted) was arrested. (RT 165) As in April, the trailer
and fireworks bore the mandated placards and labels. (RT 162-164)

According to Mr. (Name Deleted), his
truck was repaired in early July by RG Enterprising in Huntington Beach,
California.  (RT 330; Exhibit 27)

STATEMENT OF DEFENSE THEORY

The over-arching purpose of the
Supremacy and Commerce Clauses of the Constitution of the United States is to
thwart the balkanization of the national economy by states which adopt laws
impeding the flow of goods and services. 
Specifically, the Constitution of the United States declares in Article
I, Section 8:

“The Congress shall have power… to regulate
commerce… among the several states.”

Likewise, Article VI
mandates that:

“The Constitution, and the laws of the United States
… shall be the supreme law of the land; and the judges in every state shall
be bound thereby, anything in the laws of any State notwithstanding.”

The defense contentions challenging the
convictions in the case at bar are manifold. 
First, Congress distilled the constitutional principles of Article I and
Article VI and restated them in Title 18, United States Code, section 836,
which declares that no state may regulate fireworks in the course of interstate
transportation.      When an article
enters interstate commerce it remains so until there is a complete surrender of
dominion and control as taught by the decision in Southern Pacific, infra.

On the dates of April 14, 2005, and June
12, 2005, (Name Deleted) (Name Deleted) was operating a federally-designated
motor private carrier upon an interstate highway officially allocated by the
United States Department of Transportation for the passage of fireworks.  The trailer and its contents had placards and
labels required by the federal government. 
Mr. (Name Deleted)’s operator’s license bore a hazardous materials
endorsement.  As a consequence, Mr. (Name
Deleted) was lawfully transporting his cargo through California to its Missouri
destination.

The prosecution sought to avoid the
application of federal law by asserting that the issue was one of simple
possession as opposed to transportation, as though the word “possession” is a
talisman erasing the Commerce Clause of the American Constitution.  By virtue of federal law, “transport”
includes all services related to movement, such as delivery, transfer, packing,
unpacking and even storage. In short, 
unique definition of transportation in section 836 embraces all forms of
possession.

Second, Mr. (Name Deleted) was cited and
prosecuted for violation of Health and Safety Code section 12702(c), which is a
punishment enhancement provision, not a substantive crime.  Furthermore, the controlling specific
statute, section 12573 regarding transportation and import permits, is
inapplicable.  Section 12573 prescribes
import permits issued by the State Fire Marshal when fireworks are stored or
sold to a licensed fireworks wholesale agent in California.  In other words, when the goods have been
removed from interstate commerce.

Third, the prime testimony leading to
the convictions of Mr. (Name Deleted) was an opinion expressed by a local bomb
squad detective.  The opinion was
incompetent and legally incorrect.  Trial
counsel neither objected to, nor properly cross examined the witness.  Counsel also neglected to request relevant
jury instructions. But for these inactions, Mr. (Name Deleted) would have
obtained a more favorable result.

Fourth, there was sufficient evidence
adduced to authorize an instruction as to the defense of mistake of law or fact.  Nonetheless, the Court erred by drawing its
own conclusion as to the credibility of Mr. (Name Deleted), refused the
instructions and thereby usurped the function of the jury, denying Mr. (Name
Deleted) a fair trial.

Fifth, the Court incorrectly instructed
the jury as to the substantive offense and provided the panel with verdict
forms which do not state a crime.

Sixth, the jury returned verdict forms
convicting Mr. (Name Deleted) of crimes that do not exist in law.

ARGUMENT

I

(NAME DELETED) (NAME
DELETED) IS ENTITLED TO SEEK A NEW TRIAL BY VIRTUE OF PENAL CODE SECTION 1181

Penal Code section
1181 provides that

“When a verdict has been rendered… against the
defendant, the court may, upon his application, grant a new trial, in the
following cases only:

5.       When the
Court has misdirected the jury in a matter of law, or has erred in the decision
of any question of law arising during the course of trial.”

(Name Deleted) (Name Deleted) contends
that the Court erred in permitting trial in a field of law usurped by the
federal government.  The Court also erred
in failing to instruct the jury as to the pertinent licensing statute, by
improperly sustaining objections and submitting verdict forms for crimes not
recognized in law.

Finally, counsel did not exercise
reasonably competent efforts when he failed to discredit the incompetent and
legally-erroneous opinion of an expert witness.

II

(NAME DELETED) (NAME DELETED) IS ENTITLED TO A NEW
TRIAL BECAUSE THE DOCTRINE OF PREEMPTION PRECLUDES APPLICATION OF STATE
LEGISLATION AFFECTING A FIELD OF LAW OCCUPIED BY FEDERAL AUTHORITY

A.      The Supremacy Clause Of The
Constitution Of The United States Grants Congress The Exclusive Power To
Regulate Commerce

The Constitution specifically grants to
Congress the power to regulate commerce. 
Pursuant to the Supremacy Clause of Article VI, when state and federal
law conflict, the federal law preempts state law.  Crosby v. National Foreign Trade
Council (2000) 530 U.S. 363.  In
determining whether federal law preempts state law, principles of statutory
construction are utilized to ascertain legislative intent. Spielholtz v.
Superior Court (2001) 86 Cal. App. 4th 1366. 

The intent of Congress may be “expressly
stated or implied where a federal law demonstrates an intent to ‘occupy the
field’ or a state law conflicts with a federal law.” (Id. at
1371)  The lynchpin to the doctrine is
not the method of regulation by a state government, but the “nature of the
activity” sought to be controlled.  San
Diego Unions v. Garmon (1959) 359 U.S. 236, 243.

B.      The United States Of America Has
Absolute And Unfettered Control Of Motor Carriers And Property Moving In
Interstate Commerce To The Exclusion Of State Governments.

By operation of the Supremacy Clause,
any state enactment incompatible with federal law is “without effect.”  Maryland v. Louisiana (1981)
451 U.S. 725, 746.

Title 49, Subtitle IV of the United
States Code, otherwise known as the Interstate Transportation Act, regulates
motor private carriers and their activities which are defined by Section 13102
as follows:

“(9)    Highway -
- the term “highway” means a road, highway, street and way in a state.

(13)   Motor
private carrier. –  The term “motor
private carrier” means a person transporting property by motor vehicle when –

(A)    the
transportation is provided in section 13501 of this title;

(B)     the
person is the owner, lessee, or bailee of the property being transported; and

(C)     the
property is being transported for sale, lease, rent or bailment or to further a
commercial enterprise.

(14)   Motor
vehicle. – The term “motor vehicle” means a vehicle, machine, tractor, trailer,
or semi-trailer propelled or drawn by mechanical power and sued on a highway in
transportation….

(21)   Transportation.
– The term “transportation” includes -

(A) a motor vehicle related to the movement of
passengers or property… and

(B)     services
related to that movement, including arranging for, receipt, delivery,
elevation, transfer in transit … storage, handling, packing,
unpacking, and interchanges of passengers and property.” (Emphasis added)

Section 13501,
referred to in the definition of motor private carrier in section 13102 (13)
above states:

“ The Secretary and the Board [of Surface
Transportation] have jurisdiction… over transportation by motor carrier…
(1) between a place in – (A) a state and a place in another state.”

C.      Statutory And Decisional Law In The
State Of California Acknowledge Federal Preemption Of Interstate Transportation

Where an activity is cognizable
exclusively in the courts of the United States, state regulation and
jurisdiction is nullified.  Penal Code,
section 777 states:

“Every person is liable to punishment by the laws of
this State, for a public offense committed by him therein, except where it is
by law cognizable exclusively in the Courts of the United States….”

         
Accordingly, a state statute that intrudes into an area that has been
encompassed by federal law is not valid. 
Moreover, the analysis as to whether federal law supercedes state
legislation is predicated on definitions rendered by federal statutory and
judicial authority.  People v.
Southern Pacific Co., infra.

III

(NAME DELETED)  (NAME
DELETED)  IS   ENTITLED 
TO  A  NEW  
TRIAL   BECAUSE   THE

STATE OF CALIFORNIA CANNOT REGULATE THE INTERSTATE
TRANSPORTATION OF FIREWORKS WHERE CONGRESS HAS CHOSEN TO OCCUPY THE FIELD

Congress displayed its decision to
regulate interstate transportation of fireworks by enacting 18 U.S.C. section
836:

“Whoever, otherwise than in the course of
continuous transportation through any state, transports fireworks into
any State, delivers them into any State, or attempts so to do… in a manner or
for a use prohibited by the laws of such State specifically prohibiting or
regulating the use of fireworks, shall be fined under this title or imprisoned
not more than one year, or both. (Emphasis added)

As will be demonstrated, implementation
of the statute precludes the regulation of interstate transit of fireworks by
the State of California.  This contention
is borne out by the single authority so heavily relied upon by the prosecution:
Cohen v. Bredehoeft, infra.

                   A.      (Name Deleted) (Name Deleted) Was Exempt From State
Regulation Since He Was Engaged In The Continuous Interstate Transportation Of
Fireworks.

The dispositive judicial opinion
defining the term “continuous transportation” is People v. Southern
Pacific Co.  (1962) 208 Cal. App.
2d 745, and the federal decisions upon which it is predicated.

The scope of the transportation
power,  and ascertainment of its meaning,
began in Rhodes v. Iowa (1898) 170 U.S. 412, in which the Supreme
Court held that the movement of a package by a railway agent from a station
platform to placement in a warehouse did not, nonetheless, remove the package
from interstate commerce.

Expanding upon the decision in Rhodes
v. Iowa is McNeil  v.
Southern Ry Co. (1906) 202 U.S. 543. 
There, a railroad company diverted coal cars from its right-of-way to a
private spur track to await collection. 
After several days, the railroad returned the cars to its right-of-way
and demanded payment.

The North Carolina Corporation
Commission fined the railroad for breach of its rules and damage to
McNeil.  The Supreme Court vitiated this
state action, observing that even though a state may enact legislation for
public safety under the police power:

“[T]he act to regulate commerce, itself, provides that
it shall and does apply to the “transportation of passengers or property…
from one state… to any other state.” Congress having legislated no
state regulations can apply.” (Id. at 550; emphasis
added.)”

Next, is Erie Railroad Co., v.
Shuart (1919) 250 U.S. 465. The Erie railroad company shipped livestock
to St. Louis.  As the livestock was about
to be unloaded, a switch engine collided with the car, causing injury to the
animals.

The p(Name Deleted) ntiff did not file a
required written c(Name Deleted) m mandated by federal law, instead contending
that interstate transport had ended.  The
high court interpreted the term “transportation” under then-existing Title 49
and noted that the term included “all services in connection with the receipt,
delivery, elevation and transfer …” of goods. (Id. at 467)   Therefore, the animals remained in
interstate commerce even though the railroad car had arrived at the destination
city, had been uncoupled and delivered to Shuart.

Most illustrative is Danieger v.
Cooley (1919) 248 U.S. 319, wherein the Supreme Court assessed whether
the police power of the State of Kansas could be employed to prevent the
shipment of liquor into its jurisdiction. 
The Court ruled that Kansas could only regulate such activity after
the goods were surrendered to the purchaser. 
Otherwise:

“If upheld, the [police power] doctrine would deprive
a citizen of one state of his right to order merchandise from another state
…. It would prevent the citizen of one state from shipping into another
state…. [I]t would subject contracts made by common carriers and valid
by the laws of the State where made to the laws of another state, and
it would remove from the protection of the Commerce Clause all goods….” (Id.
at 325; emphasis added)

These historic discussions are important
for two reasons.  First, they interpreted
the same statutory language presently contained in United States Code Title 49,
sections 13102 and 13501.  Second, they
are the foundation for the leading California appellate case of People v.
Southern Pacific Co. , supra.

In Southern Pacific, a
railroad corporation left a boxcar of cattle unattended on its tracks and
neglected to provide food and water to the animals.  Accordingly, the company was prosecuted for
cruelty to animals under Penal Code section 597, which reads as follows:

“Whoever carries or causes to be carried in or
upon any vehicle or otherwise any domestic animal in a cruel or
inhumane manner… is guilty of a misdemeanor” (Emphasis added.)

However, there also existed a federal
Cruelty to Animals Act, Title 49, United States Code section 80502,
establishing conditions for “(b) Unloading, Feeding, Watering and Rest” of
livestock transported by “common carrier.” 
The question before the appellate tribunal was this:

“Do the provisions of the federal Cruelty to Animals
Act preclude the application of the provisions of section 597 of the California
Penal Code to a common carrier engaged in interstate commerce?  Again, our answer must be in the
affirmative.” (Id. at 750)

Although the federal legislation did not
expressly state that it fully occupied “the field sought to be regulated,” the
“settled rule” is that exclusion of state action “may be implied” from the
nature of the legislation.” (Id. at 751) These considera- tions
led the Court to conclude the following:

“The aim of the federal enactment is to secure humane
treatment of all livestock carried through and into the states by
carriers engaged in national commerce …. so persuasive are its terms that
reason compels the inference Congress left no room for states to
implement it.”  (Id.
at 752; emphasis added.)

In sum, the compelling language of Rhodes,
et. al. persuaded the Court of Appeal to observe that

[I]nterstate shipment is not completed until there has
been a delivery to the consignee and [there is] a complete surrender
of dominion and control…” (Id. at 749; emphasis added.)

Finally, the validity of these historic
precedents remains undiluted to this very day. 
See Granholm v. Heald (2005) 544 U.S. 460.

B.      California Fireworks Regulations
Acknowledge That Federal Legislation Has Occupied The Field.

Congress by inference has chosen to
occupy the field regarding interstate transport of fireworks as evidenced by
Title 49 of the Code of Federal Regulations, entitled “Hazardous Materials
Regulations Of The Department Of Transportation.”  This is a 628-page document that, inter
alia, addresses the transport of fireworks.   Title 49 Code of Federal Regulations,
Part 173. 

Indeed, California concedes federal
jurisdiction concerning fireworks by virtue of Title 19, California
Administrative Code, Section 990(b):

“(b) All fireworks and pyrotechnic devices being
transported in this state, whether classified or unclassified, shall be packaged
and transported in accordance with the Code of Federal Regulations, Title
49, Part 173, Subpart C - OR - with Health
and Safety Code sections 12650 - 12654.” (Emphasis added.)”

C.      Case Authority Cited By The Prosecution
Does Not Contradict, But Indeed Is Consistent With, The Contentions Of (Name
Deleted) (Name Deleted)

In a memorandum lodged with the Court,
the prosecution asserted that the State of California has co-existent
jurisdiction with the federal government in the control of fireworks even if
such regulation indirectly affects commerce. 
The authority is derived from a United States District Court opinion
entitled Cohen v. Bredehoeft (1968) 290 F. Supp. 1001.

Cohen owned Alpha Enterprises which
maintained “several warehouses where fireworks are stored … within the City
of Houston,” Texas.   At these locations,
the fireworks “are stored for various amounts of time” and are
thereafter “resold in their original packages to purchasers  within and without the State of
Texas.” (Id. at 1002 - 1003; emphasis added.)

City of Houston Ordinance No. 8941
stated that fireworks were a nuisance and empowered any police officer to

“stop the transport of and detain any fireworks from
being transported illegally, or close to any building where any
fireworks are found stored illegally.” (Id. at
1003; emphasis added.)

At the outset, Cohen is
unpersuasive since fireworks are not, in and of themselves, illegal in
California.  More importantly, District
Court Judge Ingraham opined that the ordinance did not conflict with any act of
Congress “because of its essentially local nature.” (Ibid.)  Notably, His Honor concluded that federal
legislation encouraged local control and cited Title 18, United States Code,
section 836 - - the very statute upon which the defense of (Name Deleted) (Name
Deleted) is predicated:

“Whoever, otherwise than in the course of
continuous transportation through any state, transports fireworks into
any state, or attempts so to do… in a manner or for a use prohibited by the
laws of such a State specifically prohibiting or regulating the use of
fireworks, shall be fined under this title or imprisoned not more than one year
or both. (Id. At 1006, fn. 2; emphasis added.)

The more persuasive and contemporary
opinions are those of the United States 
Supreme Court in Edgar v. MITE Corp. (1982) 457 U.S. 624
and BMW of North America v. Gore (1996) 517 U.S. 559.

In Edgar, a state
regulatory system was deemed to have impermissibly impinged upon the Commerce
Clause.  There, Illinois demanded state
approval of any tender offer for a company whose shares were owned nationally.  The statute strove to control buyers and
sellers within and without Illinois. The Justices struck down the Illinois law
since the Securities and Exchange Act of 1934 and the Commerce Clause disallow
state action on the ground that

“[A] state statute which, by its
necessary operation, directly interferes with, or burdens
[interstate] commerce is a prohibited regulation and invalid,
regardless of the purpose with which it was enacted.” (Id. at
642; emphasis added.)

This language emasculates the
prosecution argument under  Cohen,
supra, that a laudatory police power objective immunizes a state
regulation affecting commerce.

An Alabama court awarded punitive
damages for a violation of a state statute requiring notification of vehicle
repainting in BMW, supra. 
The scheme was dead on delivery, as the Supreme Court stated the
principles established in BMW in a nutshell:

“Alabama may insist that BMW adhere to a particular
disclosure policy in that state.  Alabama
does not have the power, however, to punish BMW for conduct that was lawful
where it occurred and that had no impact on Alabama or its residents.  Nor may Alabama impose sanctions on BMW in
order to deter conduct that is lawful in other jurisdictions.” (Id.
at 572-573)

Since fireworks are lawfully
manufactured in the State of Nevada and lawfully possessed in the State of
Missouri, the rational of BMW controls.

IV

(NAME DELETED) (NAME DELETED) IS ENTITLED TO A NEW
TRIAL SINCE HE WAS PROSECUTED UNDER THE WRONG STATUTE AND WAS EXEMPT FROM THE
APPLICABLE ONE

A.      (Name
Deleted) (Name Deleted) Was Prosecuted For Violation Of Health And Safety

 Code Section 12677 Where The Dispositive
Statute Is Section 12573.

Health and Safety Code section 12677
states that it is unlawful for any person to possess dangerous fireworks
without holding a valid permit.  Section
12677 is an omnibus statute, embracing every form of possession and purpose
concerning fireworks.  The issue in the
case at bar is   transportation.  Transportation necessarily includes,  and subsumes, 
possession.  Hence, the inquiry
must focus on the relevant transportation provisions of the Health and Safety
Code.

Since the specific controls the
general,  People v. Gilbert (1969)
1 Cal. 3d 475, the applicable statute as to fireworks transportation is Health
and Safety Code section 12573:

“An importer’s license shall allow fireworks to be
imported into the state.  Import
activity shall be limited to the sale of fireworks to licensed wholesalers and
licensed manufacturers only” (Emphasis added.)

Although there are sections of the code
defining mandatory transportation permits, those statutes do not control
because they concern public displays of fireworks within the state, lack of
jurisdiction at the point of origin or fireworks transported out of the
state.  Health and Safety Code,
sections 12650 and 12653.  Consequently,
section 12573 is dispositive.

The word “import” has
multiple definitions, such as:

1.       “To
bring in from the outside; to bring into one county from another in
commerce.”  Websters, New World
Dictionary of the American Language, College Edition.

2.       “To
bring in from abroad” American Dictionary of the English Language.

3.       “The
transportation of goods into one country and out of another; also, the article
imported.  The term under the goods be
brought voluntarily into this country, into the proper port of entry, and with
the intent to unload them.” Answers.com,
“Import.”

Implicit in the definitions is the
notion that goods will be brought into and left in that jurisdiction as in Cohen,
supra.  For example, if a
traveler drives from California to Montana for vacation, or to sell his
vehicle,  would anyone assert that he
“imported” his vehicle into Arizona, Nevada, Utah, Idaho and Montana?

B.      Furthermore, (Name Deleted) (Name Deleted) Was Exempt From
The Provisions of Section 12573.

As noted, prosecution under generalized
statutes is barred when a specific law is intended by the Legislature for a
given factual situation. People v. Gilbert, supra; People
v. Swann (1963) 213 Cal. App. 2d 447. 
The rule is designed to enforce the dictates of the Legislature in
passing the specialized statute. The fact that the Legislature has enacted a
specific statute covering much the same ground as a more general law is a
powerful indication that the Legislature intended the specific provision alone
to apply.

Our Supreme Court has held that in most instances,
an overlap of provisions is determinative of the issue of legislative intent
and requires courts to give “effect to the special provision alone in the face
of the dual applicability of the general provision… and the special
provision….”  People v. Jenkins (1980)
28 Cal. 3d 494, 505-506.

Due Process includes the right to have a
jury determine every element of the offense. 
Hence, it is the duty of the trial court to ensure that the jury is
adequately informed. People v. Shoals (1992) 8 Cal. App. 4th 475.
This function is not satisfied by a “mere reading of wholly correct, requested
instructions.” People v. Reynolds (1988) 205 Cal. App. 3d 776,
779.  In particular, the trial court has
a sua sponte duty to provide explanatory instructions, in the absence of a
request, whenever there is a “technical meaning peculiar to the law” such as an
import permit.  People v. Flannel (1979)
25 Cal. 3d 668, 680.

Therefore, section 12573 is controlling
and is limited to sales to licensed California wholesalers.  The corresponding authority relating to the
State Fire Marshal, fireworks and import permits is Title 19, California
Code of Regulations, section 990.2:

“Import/Export licensees shall file written a written
report with the State Fire Marshal involving the importation of fireworks, in
accordance with Health and Safety Code sections 12619 and 12620.

(1)     Prior
to importing fireworks, the licensee shall file a report with the State
Fire Marshal.  Reports shall indicate the
name and address of the manufacturer and of the shipper, the type and kind of
fireworks being imported, the quantity of each type and kind of fireworks, the estimated
time of arrival of shipment, the name of the carrier, the load number
or other identification carton marks.

(2)     Upon
arrival or prior thereto, the State Fire Marshal shall be notified as
to contemplated disposition of fireworks.  Contemplated storage, classification and
reshipment plans shall be included in this report. “ (Emphasis
added.)

The inapplicability of the import permit
regulations to Mr. (Name Deleted) was confirmed by Senior Deputy State Fire
Marshal Marge (Name Deleted) .  When
questioned regarding the trans-shipment of fireworks from a foreign
jurisdiction through the State of California to other
destinations, Ms. (Name Deleted)  conceded that no permit is
required by her agency  (RT 316)  and offered no explanation why (Name Deleted)
(Name Deleted) was treated

differently. 
Furthermore, Mr. (Name Deleted) was not obligated to seek an import
permit because there was no evidence he intended to sell the fireworks to a
wholesaler as described in section 12573.

In sum, (Name Deleted) (Name Deleted)
was not only prosecuted pursuant to the wrong statute, he was exempt from the
one that did apply.

V

(NAME DELETED) (NAME DELETED) IS ENTITLED TO A NEW
TRIAL SINCE HE WAS CONVICTED UPON THE ERRONEOUS TESTIMONY OF AN APPARENT EXPERT
WHERE TRIAL COUNSEL DID NOT PROPERLY OBJECT

A.      A Motion For New Trial Is Appropriate Where The
Performance Of Trial Counsel Is At Issue.

Although Penal Code section 1181 states
that its provisions “only” control a motion for a new trial, a judicial gloss
has been applied regarding the competency of trial counsel.  People v. Fosselman (1983) 33
Cal. 3d 572, 582:

“Thus, in appropriate circumstances justice will be
expedited by avoiding appellate review, or habeas corpus proceedings, in favor
of presenting the issue of counsel’s ineffectiveness to the trial court as a
basis of a motion for new trial.”

It is hornbook law that trial counsel
must exercise reasonably competent efforts. 
Strickland v. Washington (1984) 466 U.S. 668.  Tactical decisions demonstrate ineffectual
representation if made without benefit of investigation or in ignorance of the
dispositive law.  People v.
Frierson (1979) 25 Cal. 3d 142. 
Or, where counsel failed to object to prejudicial or inadmissible
testimony.  People v. Stratton (1988)
205 Cal. App. 3d 87.

“There is a risk of ‘second guessing’ trial counsel
after the event.  Nonetheless, while
acknowledging the wide latitude and discretion necessarily vested in trial
counsel in the area of tactics and strategy, we stress that the exercise of
that discretion must be a reasonable and informed one in light of the facts and
options reasonably apparent….” (People v. Frierson, supra at
166.)

B.      But
For The Conduct Of Counsel, A More Favorable Result Would Have Been Obtained

Detective (Name Deleted) testified that
a permit from the State Fire Marshal was mandatory for any vehicle containing
fireworks passing “through California going to New York or wherever.” (RT 247)
This opinion is flat wrong. 
Additionally, it is unsupported by the trial record.

Detective (Name Deleted) related that he
had attended courses and “bomb schools” (RT 210) concerning “explosives” and
“arson”. (RT 191) He had “investigated” more than 100 fireworks cases of
dangerous fireworks. (RT 192) The witness also had received “some training” as
to the difference between interstate and intrastate transportation of
fireworks.  (RT 215)

On April 16, 2005, while traveling to
the location where (Name Deleted) (Name Deleted) had been detained, (Name
Deleted) spoke to Senior Deputy State Fire Marshal (Name Deleted) . (RT 213)
Based on those communications to confirm the need for a permit (RT 246) and his
previously acquired knowledge, Mr. (Name Deleted) was cited. (RT 120)

But Ms. (Name Deleted)  did not substantiate the testimony of
Detective (Name Deleted) regarding a permit - - she would have refuted it if
asked.  An offer of proof by the
prosecution was that (Name Deleted)  spoke to (Name Deleted) about the weight
of the fireworks, not a permit requirement. (RT 150)  Curiously, not one time in thirty-seven pages
of testimony was the Senior Deputy asked by the district attorney whether any
permit whatsoever was needed by Mr. (Name Deleted).

When Ms. (Name Deleted)  was examined by defense counsel, she admitted
no permit was required for fireworks passing through a port of entry at Long
Beach to any other location in the United States.  (RT 316) 
Counsel forfeited a gold-plated opportunity by not asking the next
logical question:

“What is the difference between a fireworks truck in
Long Beach headed for Missouri and a fireworks truck in Baker headed for the
same place?”

A pointed cross-examination would have
revealed that Ms. (Name Deleted)  was
testifying about import permits based on her comment that the Fire Marshal “approves
the load” at customs even though no permit is required. (RT 316) This
concession would have supported a viable motion for acquittal pursuant to Penal
Code section 1118 based on the dispositive statutes:

“Import activity shall be limited to the sale of
fireworks to the licensed wholesaler… only.” (Section 12573,
supra.)

“Import/Export licensees shall file a written report
with the State Fire Marshal….” (Section 990.2, supra.)

In conclusion, a full cross-examination
of these witnesses regarding the law, coupled with a proper jury instruction as
to the elements of an import permit would have led to a more favorable
result.  People v. Stanley (2006)
____ Cal. 4th ____. (August 24, 2006.)

VI

(NAME DELETED) (NAME DELETED) IS ENTITLED TO A NEW
TRIAL SINCE THE COURT ERRONEOUSLY USURPED THE PROVINCE OF THE JURY BY
DISALLOWING APPROPRIATE INSTRUCTIONS

A.      The Defense Of Mistake Of Fact Applied To Count 1, At The
Least.

(Name Deleted) (Name Deleted) testified
that his sole “intent” was to deliver his fireworks to Missouri as he had done
“for years.”  (RT 306) He was traveling
through California because of the requirement to use federally approved HAZMAT
routing.  (RT 307-308)

On April 14, 2005, Mr. (Name Deleted)
was advised by members of the California Highway Patrol that he had not
violated the California Vehicle Code. 
(RT 299) This testimony was confirmed by Officers Hayes and
Secrist.  This information was consistent
with comments made to Mr. (Name Deleted) in 2004 by a commercial vehicle
officer at the Yermo checkpoint.  (RT
299)

After being detained on April 16, 2005,
Mr. (Name Deleted) believed that he needed a “hazardous materials permit” from
the Highway Patrol, and thereafter took what he believed were the necessary
steps to obtain it.   (RT 268) On June
12, 2005, Detective (Name Deleted) reviewed a photocopy of a check and an
application to the Highway Patrol for a hazardous material license he located
in Mr. (Name Deleted)’s truck.  (RT
229-230)

When a defendant reasonably and honestly
believes that a statute is not applicable to him, or that he has complied with
it, there is a mistake of fact.  People
v. Flumerfelt (1939) 35 Cal. App. 2d 495.  Reliance on official government sources may
establish this defense.  An illustrative
decision is  People v. Ferguson (1933)
134 Cal. App. 41, where a securities broker relied on the opinion of the
corporations commissioner that a sales permit was not required.  In reversing a conviction for unlawful
securities transactions, the panel wrote:

“By the very attitude of the corporations
commissioner’s office… appellant was forced to sell the securities in
question without a permit or not to sell them at all.  Such a state of affairs is not imaginable,
for, as we have seen, the sale of such securities is not malum in se. (Id.
at 53)

B.      The Believability Of The C(Name
Deleted) m Of Mistake Of Fact Was For The Jury To Decide.

The Court assessed the testimony of Mr. (Name
Deleted) and concluded that “there was no showing of good faith” (RT 316) and
denied requested instructions as to this defense (RT 349).  This issue should have been placed in the
hands of the jury to accept or reject.  Penal
Code section 1127 provides:

“The Court shall inform the jury in all cases that the
jurors are the exclusive judges of all the questions of fact submitted to them
and of the credibility of the witnesses.”

An accused is entitled to request
instructions that pinpoint the defense theory. 
People v. Daniels (1991) 52 Cal. 3d 815.  It is then the province of the trier of fact
to assess the viability of the defense.  Davis
v. Alaska (1974) 415 U.S. 308, 354:

“We cannot speculate as to whether the jury, as sole
judge of the credibility of a witness, would have accepted this line of
reasoning had counsel been permitted to fully present it.  But we do conclude that the jurors were
entitled to have the benefit of the defense theory before then so that they
could make an informed judgment….”

As noted, in People v.
Mejia-Lenares (2006) 135 Cal. App. 4th 1439, even if it does not
inspire confidence, the testimony of a defendant constitutes substantial
evidence.  In accord,  People v. Webster (1991) 54
Cal. 3d 411, 443; People v. Melton (1998) 44 Cal. 3d 713, 746:

“Though it hardly inspired confidence, defendant’s
testimony was substantial evidence in support of a verdict of theft rather than
robbery.”

This standard of substantial evidence
does not depend on the credibility of the evidence in the view of the trial
court.  People v. Flannel (1979)
25 Cal. 3d 668; People v.  Coleman
(1970) 8 Cal. App. 3d 722.  Even though
the trial court may view the evidence as inherently incredible and totally
unbelievable, the court is nevertheless bound to accept the evidence for the
purpose of instructing the jury.  People
v. Harris (1981) 28 Cal. 3d 935.

A requested instruction must be given if
the record contains any evidence deserving of any consideration whatsoever
which supports the instruction.  People
v. Carmen, supra.  Moreover, a
defendant has a right to an instruction that directs attention to evidence from
which a reasonable doubt of his guilt could be engendered.  People v. Sears (1970) 2 Cal.
3d 180.

“A defendant is entitled to an instruction on his
theory of the case by the evidence no matter how weak…. [t]he
defendant is entitled to an instruction based on the hypothesis that it is
entirely true.”  People v. Clark (1962)
202 Cal. App. 2d 513, 517; Penal Code, section 1043(b); emphasis
added.)

VI

(NAME DELETED) (NAME
DELETED) SHOULD BE GRANTED A NEW TRIAL SINCE HE DID NOT COMMIT A SUBSTANTIVE
OFFENSE RECOGNIZED IN LAW

A.      The
Jury Convicted (Name Deleted) (Name Deleted) Of A Nonexistent Crime.

The trial jury was instructed that Mr. (Name
Deleted) was accused in Count I of the First Amended Information with “Having
Dangerous Fireworks Having A Total Net Weight Of 7,500 Grains Or More.”  The jury was also advised that the defendant
was charged in Count 2 with “the Offense of Dangerous Fireworks Having A Total
Net Weight Of 7,500 Grains Or More.”