People v. Jorge M.People v. Jorge M.
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- Before:
- Werdegar
Lead Opinion
Opinion
Jorge M., a minor, was adjudicated a ward of the juvenile court and ordered into a juvenile camp program, in part because he was found to have been in possession of an assault weapon, in violation of Penal Code
We agree with the Court of Appeal that section 12280(b), an alternative felony/misdemeanor punishable by up to three years in state prison (see §§ 17, subd. (b), 18), was not intended to define a strict liability offense. We disagree, however, that actual knowledge regarding the firearm’s prohibited characteristics is required. Such a requirement would be inconsistent with the public safety goals of the AWCA. Effective enforcement of that law demands, instead, that a conviction be obtainable upon proof of negligent failure to know, as well as actual knowledge of, the weapon’s salient characteristics; the People must prove, that is, that a defendant charged
Factual and Procedural Background
On December 5, 1996, while the 16-year-old minor was on in-home probation for possession of a controlled substance, law enforcement officers conducted a probation investigation at the minor’s home. The main room of the house had bunk beds in one comer; a door led off this main room to the minor’s parents’ bedroom. Probation Officer Brian Tsubokawa asked the minor where he kept his personal possessions. The minor pointed to the bunk bed area in the main room. Los Angeles Police Department Officer Manuel Ramirez went to the bunk bed and found three rifles on the top bunk, which the minor told Officer Ramirez was his bed. On a clothes cabinet three feet or less from the minor’s bed, Officer Ramirez also found an unregistered SKS-45 semiautomatic rifle with a detachable “banana clip” magazine.
The present petition was then filed against the minor under Welfare and Institutions Code section 602, charging him with possession of an assault weapon (§ 12280(b)) and with firearm possession in violation of the terms and conditions of his probation (§ 12021, subd. (d)).
At the adjudication hearing, the officers testified as described above. The minor testified he slept on the floor of his sisters’ bedroom and that the weapons belonged to his father. He denied ever “playing” with the weapons. The minor’s brother testified that all the rifles belonged to him and his father, not to the minor. He said that he slept on the top bunk bed and that the minor slept in a bedroom used by their sisters. The minor’s mother corroborated the brother’s account.
The juvenile court found the allegations of the petition true. The minor was adjudged a ward of the court and placed in a camp community placement program for a period not to exceed three years and eight months. The maximum period of confinement was calculated as follows: three years for the violation of section 12280(b); three years, stayed pursuant to section 654, for the violation of section 12021; and eight months, consecutive, for the drug possession charge for which the minor was on probation at the time of the current offenses.
The Court of Appeal reversed the section 12280(b) finding for insufficient evidence. Relying heavily on the persuasive authority of Staples v. United States (1994)
We granted the Attorney General’s petition for review.
Discussion
The AWCA, inter alia, requires registration of assault weapons, sets time periods for such registration, prohibits the possession of unregistered assault weapons, restricts the circumstances under
Section 12280(b) provides in pertinent part: “[A]ny person who, within this state, possesses any assault weapon, except as provided in this chapter, is guilty of a public offense and upon conviction shall be punished by imprisonment in the state prison, or in a county jail, not exceeding one year.”
That the statute contains no reference to knowledge or other language of mens rea is not itself dispositive. As we recently explained, the requirement that, for a criminal conviction, the prosecution prove some form of guilty intent, knowledge, or criminal negligence is of such long standing and so fundamental to our criminal law that penal statutes will often be construed to contain such an element despite their failure expressly to state it. “Generally, ‘ “[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.” . . .’ {People v. Simon[, supra,] 9 Cal.4th 493, 519 . . . , citations omitted.) In other words, there must be a union of act and wrongful intent, or criminal negligence. (
Equally well recognized, however, is that for certain types of penal laws, often referred to as public welfare offenses, the Legislature does not intend that any proof of scienter or wrongful intent be necessary for conviction. “Such offenses generally are based upon the violation of statutes which are purely regulatory in nature and involve widespread injury to the public. (People v. Matthews (1992)
Whether section 12280(b) can properly be categorized as a public welfare offense, for which the Legislature intended guilt without proof of any scienter, is a question of first impression to which the answer is not obvious. On the one hand, the AWCA, including section 12280, is clearly aimed at protecting public safety by regulating and restricting the possession of assault weapons. (See § 12275.5 [“The Legislature hereby finds and declares that the proliferation and use of assault weapons poses a threat to the health, safety, and security of all citizens of this state. The Legislature has restricted the assault weapons specified in Section 12276 based upon finding that each firearm has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings. It is the intent of the Legislature in enacting this chapter to place restrictions on the use of assault weapons and to establish a registration and permit procedure for their lawful sale and possession.”]; see also Easier v. Lockyer (2000) 23 Cal.4th 472, 482-486 [
A leading criminal law treatise (1 LaFave & Scott, Substantive Criminal Law (1986) § 3.8(a), pp. 342-344) lists several considerations courts have commonly taken into account in deciding whether a statute should be construed as a public welfare offense: (1) the legislative history and context; (2) any general provision on mens rea or strict liability crimes; (3) the severity of the punishment provided for the crime (“Other things being equal, the greater the possible punishment, the more likely some fault is required”); (4) the seriousness of harm to the public that may be expected to follow from the forbidden conduct; (5) the defendant’s opportunity to ascertain the true facts (“The harder to find out the truth, the more likely the legislature meant to require fault in not knowing”); (6) the difficulty prosecutors would have in proving a mental state for the crime (“The greater the difficulty, the more likely it is that the legislature intended to relieve the prosecution of that burden so that the law could be effectively enforced”); (7) the number of prosecutions to be expected under the statute (“The fewer the expected prosecutions, the more likely the legislature meant to require the prosecuting officials to go into the issue of fault”), (lc) Finding this framework useful here, where the legislative intent is not readily discerned from the text itself, we consider each factor in turn.
1. The Statute’s History and Context
The AWCA’s origins and legislative history are reviewed in detail in Easier v. Lockyer, supra, 23 Cal.4th at pages 482-487 (Easier). Suffice it to say here the legislation, enacted in 1989, was prompted by the belief that assault weapons posed a real, severe and growing threat to public safety, urgently requiring regulation and restriction to reduce the number of such weapons finding their way into the hands of street gangs, drug dealers and the mentally ill.
The law’s origins as a legislative response to a serious public safety problem, reflected in this history and in the statutory findings and statement of purpose (§ 12275.5), tend to place the AWCA, including section 12280(b), in the category of public welfare offenses, of which the primary goal is regulation for the public welfare or safety rather than punishment of individual offenders. Moreover, from the fact that the list in section 12276 apparently was intended to provide “ ‘a more exact definition’ ” (Kasler, supra, 23 Cal.4th at p. 485) of assault weapons than the original bill, one might infer the Legislature viewed the provisions of the law, as finally enacted, as providing a definition sufficiently certain and detailed that ordinary gun owners would have little difficulty determining if their firearms had to be registered. In this sense, the statute’s history suggests, if only weakly, that the Legislature intended to place on the owners or possessors of semiautomatic weapons
On the other hand, the legislative statement of purpose in section 12275.5 includes, as its last sentence, the following: “It is not, however, the intent of the Legislature by this chapter to place restrictions on the use of those weapons which are primarily designed and intended for hunting, target practice, or other legitimate sports or recreational activities.” As the AWCA restricts only certain semiautomatic weapons, one could infer the Legislature believed those it left unrestricted did have significant sporting or recreational uses. In this sense, as the minor argues, the AWCA was clearly not premised on the view that “all semiautomatic firearms were henceforth suspect and to be possessed only at the risk of subjecting oneself to criminal liability.”
Beyond these conflicting and somewhat attenuated inferences, the legislative history reveals no specific evidence of an intent to include or exclude any particular scienter in the elements of section 12280(b). Nor does the language of any of the AWCA’s other substantive provisions clearly indicate a legislative intent to eliminate
We turn, therefore, to the AWCA’s broader statutory context. The AWCA was codified as chapter 2.3 of title 2 of part 4 of the Penal Code. Title 2, which encompasses sections 12000 through 12809, is entitled Control of Deadly Weapons and contains numerous provisions aimed at controlling the ownership, possession, and use of firearms and other dangerous weapons. Among these provisions are: section 12020, punishing as a wobbler the possession of any of a long list of weapons, including short-barreled shotguns and rifles, undetectable firearms, explosive bullets, nunchakus, shurikens, multiburst trigger activators, concealed dirks or daggers, blackjacks and lipstick case knives; section 12021, which, inter alia, punishes as a felony the ownership or possession of firearms by convicted felons; section 12025, punishing as. a misdemeanor, wobbler, or felony, depending on the circumstances, the carrying of a concealed firearm; section 12031, punishing as a misdemeanor, wobbler, or felony, depending on the circumstances, the public carrying of a loaded firearm; section 12220, which, inter alia, punishes as a felony the possession of a machine gun; section 12303, punishing as a wobbler the possession of a destructive device; and section 12320, punishing as a wobbler the knowing possession of armor-piercing handgun ammunition.
In a number of cases predating the AWCA’s 1989 enactment, Courts of Appeal construed various of these weapons laws as not requiring knowledge of the characteristics bringing the weapon within the statutory restriction or prohibition. (See People v. Corkrean (1984)
For two reasons, we agree with the minor that the pre-1989 Court of Appeal decisions on deadly weapons laws are not compelling evidence the Legislature intended section 12280(b) to lack any scienter element. First, the precedential history is not as clear or definitive as the Attorney General portrays it. As of 1989, this court had not ruled on whether knowledge of the weapon’s illegal characteristics was an element of any of the state’s deadly weapons laws; the few statements we had made on the subject, moreover, did not point clearly to liability without any scienter. Thus, in People v. Snyder (1982)
Second, as the minor suggests, the Legislature may have regarded the statutory prohibitions construed in the Attorney General’s cited Court of Appeal decisions as significantly distinguishable from the AWCA. Those decisions rest in part on the belief that sawed-off shotguns and machine guns are so easily distinguishable, and so patently tailored to criminal activity, that unknowing and innocent possession is unlikely. (See People v. Azevedo, supra,
The machine gun cases further rest on the fact that the machine gun statute itself (§ 12220) contains language of scienter (“knowingly”) in its prohibition on transporting, but not in its prohibition on simple possession. (See People v. Corkrean, supra, 152 Cal.App.3d at pp. 38-39; People v. Daniels, supra, 118 Cal.App.2d at pp. 344-345.) In contrast, section 12280 does not contain language of scienter in any of its prohibitions. For these reasons, and contrary to the Attorney General’s contention, the strict liability construction given some other deadly weapon statutes by the Courts of Appeal before 1989 is not strong evidence of the intent of the Legislature in enacting the AWCA.
2. General Provision on Mens Rea
California law contains a generally applicable rule on mens rea: section 20, which provides, “In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence.” The interpretive rule embodied in this statute is by no means inflexible, public welfare offenses being the chief recognized exception. Nonetheless, at least where the penalties imposed are substantial, section 20 can fairly be said to
3. Severity of Punishment
As already noted, possession of an unregistered assault weapon under section 12280(b) is an alternative felony/misdemeanor, also known as a wobbler; that is, the offense is a felony unless charged as a misdemeanor or reduced to a misdemeanor by the sentencing court. (§ 17, subd. (b).) Because the felony punishment specified is simply “imprisonment in the state prison,” the prison sentence for a felony violation of section 12280(b) may be 16 months, two years, or three years, in the guided discretion of the sentencing court. (§§ 18, 1170.) If qualifying prior felony convictions are pleaded and proven, a person convicted of a felony violation of section 12280(b) could face even greater punishment, including an indeterminate sentence of 25 years to life. (§§ 667, subds. (b)-(i), 1170.12.)
In Staples, supra,
Like the high court in Staples, we refrain from stating any inflexible rule regarding punishment for public welfare offenses. The Legislature’s choice of potential felony punishment for violation of section 12280(b), however, reinforces the presumption expressed by section 20 and suggests that correspondingly strong evidence of legislative intent is required to exclude mens rea from the offense.
4. Seriousness of Harm to the Public
As already discussed, the Legislature in 1989 regarded the use of assault weapons by criminals and the mentally ill as a grave public safety threat. The information reflected in the AWCA’s legislative history, and that collected since in connection with federal regulatory efforts directed at the same problem (see generally H.R.Rep. No. 103-489, 2d Sess., pp. 13-15, 18-20 (1994) [discussing criminal use of semiautomatic assault weapons and features that increase their lethality]; U.S. Dept, of the Treasury,
The AWCA is a remedial law aimed at protecting the public against a highly serious danger to life and safety. The Legislature presumably intended that the law be effectively enforceable, i.e., that its enforcement would actually result in restricting the number of assault weapons in the hands of criminals and the mentally ill. In interpreting the law to further the legislative intent, therefore, we should strive to avoid any construction that would significantly undermine its enforceability. This is not to suggest this court would or should read any element out of a criminal statute simply to ease the People’s burden of proof. But, when a crime’s statutory definition does not expressly include any scienter element, the fact the Legislature intended the law to remedy a serious and widespread public safety threat militates against the conclusion it also intended impliedly to include in the definition a scienter element especially burdensome to prove.
5. Difficulty of Ascertaining Facts
Courts have been justifiably reluctant to construe offenses carrying substantial penalties as containing no mens rea element “where . . . dispensing with mens rea would require the defendant to have knowledge only of traditionally lawful conduct.” (Staples, supra,
Similarly, in People v. Coria, supra,
The parties debate the application of these principles to construction of section 12280(b). The Attorney General maintains the weapons listed in section 12276 are
On this point the minor has the better argument. The Attorney General may be correct that anyone who knew the firearm he or she possessed was an “assault weapon” would be likely to know it was potentially regulated or contraband. But this begs the question, for the issue is precisely whether a person violates section 12280(b) if he or she does not know the gun has the characteristics making it an assault weapon. (See Staples, supra,
As to whether the possessor of a weapon listed in section 12276 would, in all or most cases, “be aware of the dangerous character of the weapon after looking at one,” the Attorney General does not demonstrate, or even attempt to demonstrate, that the listed weapons are universally distinguishable by their appearance from firearms not listed in section 12276. Comparison of the photographs of listed rifles in the California Attorney General’s Assault Weapons Identification Guide (1993) (hereafter Identification Guide) with photographs of unlisted rifles in a general reference work (Walter, Rifles of the World, supra) fails to bear oht the assumption. While many of the rifles depicted in the Identification Guide are of particularly menacing appearance, with folding or telescoping stocks, forward pistol grips, bullpup configuration or other unusual external features, others, with fixed wooden stocks and a relatively conventional rifle appearance, are not obviously unsuited, to the untrained eye at least, for hunting, ranching and farming uses, or target shooting. (See, e.g., Identification Guide at pp. 6 [Baretta AR-70], 7 [CETME Sporter], 18 [SKS with detachable magazine], 23 [Springfield Armory BM 59], 26 [Valmet M62S], 28 [Valmet M78S].) Conversely, several unlisted semiautomatic rifles have unusual military-type features and appear, again to the untrained eye, unlikely to be sporting or working guns. (See, e.g., Walter, Rifles of the World, supra, at pp. 384 [PMC Paratrooper], 404 [Ruger Mini-14/5RF], 442 [Universal Paratrooper], 439 [Stoner Model 63A1].)
Nor can it be said that all semiautomatic rifles, or even all assault rifles, lack all lawful use, so that anyone in possession of one is overwhelmingly likely to be aware they are restricted or banned firearms. In a recent federal government study (U.S. Dept, of the Treasury, Study on the Sporting Suitability of Modified Semiautomatic Assault Rifles, supra) professional hunting guides were surveyed on their clients’ use of, and their own recommendations for, semiautomatic rifles in hunting. A large number of the guides reported that their clients have used semiautomatic rifles. The most common semiautomatic rifles used were those made by or on designs of Browning and Remington, but some listed weapons, including the SKS, AK-47, HK-91, SIG 550, and FN-FAL, were reported as used or recommended by individual clients or guides. (Id., appen., survey results table.) From this and other sources, the study authors concluded the particular rifles being reviewed, variants
The same study surveyed competitive shooting groups. Thirty-one such groups responded that they conducted events using high-power semiautomatic rifles. Of these, all but one permitted the use of the assault rifles under review for some or all competitions. One organization responded that in “practical shooting” events “rifles with designs based on the AR15, AK47, FN-FAL, HK91, HK93 and others are allowed and must be used to be competitive.” (U.S. Dept, of the Treasury, Study on the Sporting Suitability of Modified Semiautomatic Assault Rifles, supra, at pp. 28-29.)
Finally, we observe that section 12276 lists weapons primarily by manufacturer and model. “Accordingly, the identification markings are the most important factor in determining if a particular firearm is an ‘assault weapon’ ” within the meaning of section 12276. (Identification Guide, supra, Foreword.) Yet the Identification Guide also suggests markings may vary from gun to gun: “Department of Justice staff has attempted to locate examples of each of the identified ‘assault weapons’ to identify accurately the markings on them. However, some of the identified ‘assault weapons’ were not physically located and some which were found were not marked as specified in Section 12276.” (Identification Guide, supra, Foreword.) Accompanying the Identification Guide’s photograph of a Valmet M78S (listed in § 12276, subd. (a)(16)) is the note, “No firearm marked M78S has been located. However, the firearm pictured may be the M78S.” A similar note accompanies the photograph of a SIG PE-57 (listed in § 12276, subd. (a)(12)). (Identification Guide, supra, at pp. 20, 28.) Consequently, although most firearms listed in section 12276 are likely to be readily identifiable, 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 are also likely.
As the Legislature recognized (see § 12275.5), many semiautomatic weapons, including some of the listed assault weapons, have lawful uses; moreover, that a particular semiautomatic weapon is likely to be specially regulated as an assault weapon may not be readily apparent to all those who possess it. Thus, a construction of section 12280(b) that dispenses completely with scienter may result in the severe punishment of innocent possessors, a result we do not believe the Legislature intended.
6. Difficulty of Proving Mental State
We previously noted the seriousness of the public safety threat the Legislature perceived and sought to alleviate by the
An actual knowledge element has significant potential to impair effective enforcement. Although knowledge may be proven circumstantially (1 Wit-kin, Cal. Evidence (3d ed. 1986) Circumstanial Evidence, § 408, pp. 381-382), in many instances a defendant’s direct testimony or prior statement that he or she was actually ignorant of the weapon’s salient characteristics will be sufficient to create reasonable doubt. Although the People could rebut a claim of actual ignorance by evidence of the defendant’s long and close acquaintance with the particular weapon or familiarity with firearms in general, production of such evidence would predictably constitute a heavy burden for the prosecution.
A scienter requirement satisfied by proof the defendant should have known the characteristics of the weapon bringing it within the AWCA, however, would have little or no potential to impede effective enforcement. In most instances the fact a firearm is of a make and model listed in section 12276, or added pursuant to section 12276.5, can be expected to be sufficiently plain on examination of the weapon so that evidence of the markings, together with evidence the accused possessor had sufficient opportunity to examine the firearm, will satisfy a knew-or-should-have-known requirement. (See, e.g., Identification Guide, supra, at pp. 3 [Norinco 86S identifiable by marking “86S located on left side of receiver near the rear”], 4 [“Uzi usually located on the left side of the receiver near the rear”], 5 [“Galil usually found on the left side of the receiver above the pistol grip”], 6 [“AR 70 on the left side of the receiver near the top”], 7 [CETME ‘Sport’ usually found on left side of the magazine well”].)
The Attorney General suggests that if section 12280(b) is construed to require some mens rea, it should be “knowledge simply of possession” of the firearm. We agree section 12280(b), like criminal possession laws generally, requires knowledge of the object’s existence and of one’s control over it. (See People v. Gory (1946)
A group of amici curiae argues for a required mens rea even greater than knowledge of the weapon’s characteristics: “actual knowledge by defendants that a firearm they possessed is one that is covered by the Act.” According to their brief, such an extraordinary level of scienter is needed here because “the ordinary citizenry does not have the esoteric
That a criminal statute contains one or more ambiguities requiring interpretation does not make the statute unconstitutionally vague on its face (see People v. Askey (1996)
7. Number of Expected Prosecutions
As previously discussed here and in Easier, supra,
Conclusion
Although the AWCA can be characterized as a remedial law aimed at protecting public welfare, its text, history and surrounding statutory context provide no compelling evidence of legislative intent to exclude all scienter from the offense defined in section 12280(b). Section 20’s generally applicable presumption that a penal law requires criminal intent or negligence, the severity of the felony punishment imposed for violation of section 12280(b), and the significant possibility innocent
The question of the defendant’s knowledge or negligence is, of course, for the trier of fact to determine, and depends heavily on the individual facts establishing possession in each case. Nevertheless, we may say that in this context the Legislature presumably did not intend the possessor of an assault weapon to be exempt from the AWCA’s strictures merely because .the possessor did not trouble to acquaint himself or herself with the gun’s salient characteristics. Generally speaking, a person who has had substantial and unhindered possession of a semiautomatic firearm reasonably would be expected to know whether or not it is of a make or model listed in section 12276 or has the clearly discemable features described in section 12276.1. At the same time, any duty of reasonable inquiry must be measured by the circumstances of possession; one who was in possession for only a short time, or whose possession was merely constructive, and only secondary to that of other joint possessors, may have a viable argument for reasonable doubt as to whether he or she either knew or reasonably should have known the firearm’s characteristics.
We further conclude the evidence here was sufficient to show, at least, negligence as to the salient characteristics. The juvenile court, examining the rifle, stated that “Russia SKS-45” was printed or engraved on a metal part near its center, forward of the stock. The police officer who found the weapon testified that the gun’s magazine, though attached at the time, was detachable. The evidence the minor possessed the gun, though in conflict, was legally sufficient, as the Court of Appeal held and the minor does not now dispute. The police and probation officers’ testimony was to the effect that the assault weapon was found resting on a cabinet a few feet from the bed the minor said was his. The juvenile court was entitled to accept that evidence and reject the contrary testimony from the minor and family members that only the minor’s brother slept in the bunk bed. Viewed in a light favorable to the trial court’s judgment (People v. Johnson (1980)
Disposition
The judgment of the Court of Appeal is reversed.
George, C. J., Mosk, J., Chin, J., and Brown, J., concurred.
Notes
All further statutory references are to the Penal Code unless otherwise specified.
A generic definition of assault weapons, contained in section 12276.1, was added effective January 1, 2000. (Stats. 1999, ch. 129, § 7.) Sections 12276 and 12276.5 were not, however, repealed.
Section 12281, added in 1998 (Stats. 1998, ch. 909, § 1), creates a retroactive immunity from prosecution under section 12280 for those possessing “SKS rifles” between January 1, 1992, and December 19, 1997. For purposes of section 12281, however, the meaning of “SKS rifle” is limited to “SKS rifles commonly referred to as ‘SKS Sporter’ versions, manufactured to accept a detachable AK-47 magazine . . . .” (§ 12281, subd. (i).) No evidence suggests the SKS-45 involved in this case meets either part of that definition, nor has the minor argued he comes within section 1228l’s immunity.
A semiautomatic firearm “fires once for each pull on the trigger and reloads automatically, but requires the shooter to release the trigger lever before another shot can be fired.” (Walter, Rifles of the World (2d ed. 1998) p. 498.) An automatic firearm “will continue firing until either the trigger is released or the ammunition has been expended.” (Id. at p. 493.)
Two portions of section 12280 manifest legislative solicitude for gun owners who might unknowingly be in possession of newly restricted assault weapons. Subdivision (b), after specifying that illegal possession of an assault weapon is generally punishable as a wobbler, provides a much reduced sanction (an infraction carrying a fine of up to $500) for first-time offenders who possessed the weapon prior to the AWCA’s effective date or the date the weapon was added to the list of assault weapons, have since registered the weapon, and have restricted their use and possession of the weapon in the manner prescribed in section 12285, subdivision (c). Subdivision (j) provides grace periods, during which subdivision (b)’s criminal sanctions do not apply, corresponding to the various statutory registration periods (see § 12285, subd. (a)) for guns listed in section 12276, added pursuant to section 12276.5, or coming within the definition added in section 12276.1. Yet these mitigating provisions are far from complete. For example, a person who innocently—without any reason to believe the firearm is or might be restricted—came into possession of an assault weapon listed in section 12276 after the registration period for such guns had passed (that is, after December 31, 1990), would have no opportunity to register the gun and, if found in possession and charged under section 12280(b), could not take advantage of the infraction provision of that statute. The same is true of anyone who comes into possession of a gun added to the list by the procedure in section 12276.5 after the 90-day registration period applying to such a listing. We are not convinced the Legislature regarded such persons’ possession as felonious if they neither knew nor should have known of the characteristics bringing the gun within the strictures of the AWCA.
Several post-AWCA Court of Appeal decisions regarding other weapons laws reached similar conclusions. (See People v. Valencia (1989)
The minor also argues the reasoning and result of the machine gun cases (People v. Corkrean, supra,
“Practical shooting involves moving, identifying, and engaging multiple targets and delivering a number of shots rapidly. In doing this, practical shooting participants test their defensive skills as they encounter props, including walls and barricades, with full or partial targets, ‘no shoots,’ steel reaction targets, movers, and others to challenge them.” (U.S. Dept, of the Treasury, Study on the Sporting Suitability of Modified Semiautomatic Assault Rifles, supra, at p. 17, fn. 48.)
Our conclusion would not be altered by consideration of the generic definition of “assault weapon” in section 12276.1, added by amendment in 1999. That section defines the class of restricted weapons by their possession of specified and readily discernible physical characteristics.
The amici curiae group requests we take judicial notice of a variety of materials, some mislabeled or misdescribed in the request. These include published background material on the history of the SKS rifle, a Kern County Superior Court order granting habeas corpus relief to an individual convicted of possessing a Bushmaster Assault Rifle, a copy of a portion of the Identification Guide, a California Department of Justice bulletin regarding use of the Identification Guide, copies of briefs filed in this and other courts in various cases, a newspaper article from 1995 criticizing the Attorney General for supporting gun control efforts, and a one-page excerpt from an unpublished manuscript on the politics of gun control legislation. We deny the request. Much of the material is completely irrelevant to the issues presented in the petition for review and briefed by the parties. To the extent it is relevant to the purely legal question of section 12280’s interpretation, the material may be considered without formal notice. As observed in the California Law Revision Commission comment to Evidence Code section 450, the Evidence Code does not limit courts’ consultation of “whatever materials are appropriate in construing statutes, determining constitutional issues, and formulating rules of law.” (Cal. Law Revision Com. com., 29B pt. 1 West’s Ann. Evid. Code (1995 ed.) foil. § 450, p. 420.)
Our “reasonably should have known” formulation departs somewhat from the usual description of criminal negligence. (See, e.g., People v. Peabody (1975)
Dissenting Opinion
A federal law, the National Firearms Act, prohibits the possession of an unregistered “machinegun.” (
In Staples v. United States (1994)
The majority, by contrast, holds that someone who lacks any actual knowledge that a firearm has such characteristics can nevertheless be convicted of unlawfully possessing an assault weapon. The majority does so by injecting into this criminal case a concept of civil law, namely, the negligence standard in torts, which asks whether wrongdoers “should have known” of harm resulting from their conduct.
The majority’s test casts too wide a net, snaring persons who lack the culpability appropriate for imposing a state prison sentence. I cannot agree that the Legislature intended such an unfair test. I therefore dissent.
I
Enacted by our Legislature in 1989, the Assault Weapons Control Act defines as “assault weapons” certain semiautomatic rifles, pistols, and shotguns, listing them by make and model. (
II
After admitting possession of a controlled substance, 16-year-old Jorge M. (the minor) was made a ward of the juvenile court. The court granted probation on conditions, among others, that the minor “not have any dangerous or deadly weapons” and that he “submit to search and seizure.” Shortly thereafter, the police, accompanied by a probation officer, searched the minor’s house and seized several rifles. The minor was charged with possessing firearms in violation of his probation (§ 12021, subd. (d)) and possessing an unregistered assault weapon (
Probation officer Brian Tsubokawa testified that upon entering the house he asked the minor where he kept his “personal
The minor’s 22-year-old brother, Juan, testified that he, not the minor, slept on the top bunk in the makeshift bedroom. In the area where the lower bunk normally would be, Juan stored boxes. The minor slept on the floor of their sisters’ bedroom. The rifles belonged to Juan and their father, an avid hunter, and were normally kept in a closet. Juan had removed the firearms from the closet to take them to a relative’s house for safekeeping during the family’s planned visit to Mexico to attend Juan’s wedding. The mother and the minor corroborated Juan’s testimony. The police found eight other rifles belonging to the minor’s father elsewhere in the house.
The trial court sustained the charges, crediting the testimony of probation officer Tsubokawa that the minor had indicated he kept personal items in the bunk bed area where Officer Ramirez found the four rifles. The Court of Appeal reversed the assault weapons charge but sustained the charge of possessing firearms in violation of probation. The court found the evidence sufficient on the issue of the minor’s constructive possession of the SKS rifle recovered from the makeshift bedroom to which the minor had immediate access. But the court concluded there was no evidence the minor knew the firearm had the “characteristics which brought it within the statutory definition of an assault weapon.” Such knowledge, the court held, was an element of the offense. We granted the People’s petition for review to determine the propriety of the Court of Appeal’s holding.
Ill
Firmly embedded in Anglo-American criminal jurisprudence is the notion that criminal liability for a prohibited act requires a guilty or wrongful purpose. (United States v. United States Gypsum Co. (1978)
Wrongful intent requires either a conscious desire of a particular result or knowledge that the result is a practical certainty. (1 LaFave & Scott, Substantive Criminal Law (1986) § 3.5(a), pp. 303-304.) “So basic is this requirement that [wrongful intent] is an invariable element of every crime unless excluded expressly or by necessary implication.” (People v. Vogel (1956)
Under this latter standard, a pertinent inquiry is whether persons “knew or should have known” a particular set of facts that make their conduct unreasonable. (Carlin v. Superior Court (1996)
The final category of offenses, those imposing strict liability, requires neither intent nor any form of negligence. (See 1 LaFave & Scott, Substantive Criminal Law, supra, § 3.8, p. 340 et seq.) As this court has explained: “The [United States] Supreme Court has indicated that regulatory or ‘public welfare’ offenses which dispense with any mens rea, scienter, or wrongful intent element are constitutionally permissible, but it has done so on the assumption that the conduct poses a threat to public health or safety, the penalty for those offenses is usually small, and the conviction does not do ‘grave damage to an offender’s reputation.’” (People v. Simon (1995)
IV
With this background in mind, I now turn to the question of what the Legislature intended in section 12280(b), which sets forth no mental state requirement. I noted earlier that wrongful intent, the ordinary standard for criminal liability, is the required mental state for most crimes. As I explained, this intent has been defined as the conscious desire that one’s actions cause a particular result or the knowledge that the result is a practical certainty. For certain possessory crimes, this wrongful intent requires knowledge not only that the contraband item is present but also of the item’s characteristics that make its possession unlawful. (See People v. Prochnau (1967)
California case law has not been consistent on whether knowledge is required under statutes that, in defining a possessory offense, do not mention any mental state. (Compare People v. Williams (1971)
Of particular assistance here is the United States Supreme Court’s recent decision in Staples, supra,
Application in this case of the high court’s test in Staples, supra,
But the majority rejects the high court’s further conclusion in Staples, supra,
In Coria, which involved the crime of manufacturing methamphetamine, we explained: “Simply stated, there is no reason in law or logic to construe [the statute] as a strict liability offense and thus permit the conviction of a person for manufacturing methamphetamine, a felony, for extracting pseudoephedrine from pills if the person does not know the extraction was performed for the purpose of, or as part of the process of, manufacturing methamphetamine. Merely engaging in chemical synthesis is not enough; the defendant must have knowledge of the facts which make the chemical synthesis unlawful, i.e., that methamphetamine is being manufactured.” (Coria, supra,
We further noted in Coria that a statute’s “silence with respect to a knowledge element does not mean the Legislature intended to dispense with the requirement” that the accused actually “know” the contraband character of the item possessed. (Coria, supra,
Just two months ago, we applied this “usual presumption” in Rubalcava, supra,
Applying the usual presumption of legislative intent as the high court did in Staples, supra,
Disregarding this usual presumption, the majority injects into the offense of possession of an unregistered assault weapon a mental state taken from the civil law of torts: whether the accused “knew or reasonably should have known” the firearm possessed the characteristics that made it an assault weapon. (Maj. opn., ante, at p. 887, italics omitted.) That this is the test for civil negligence is not disputed by the majority (maj. opn., ante, at p. 887, fn. 11), which cites no decision by this court adopting this civil law standard as the requisite mental state in a criminal case.
Seeking to justify its novel imposition here of the civil negligence standard of culpability, the majority asserts that resort to this minimal standard is necessary to aid the prosecution in proving unlawful possession of an assault weapon. (Maj. opn., ante, at p. 885.) This assertion is both legally and factually dubious. Facilitating prosecution is not the goal of statutory interpretation, nor will requiring proof of actual knowledge unduly hamper prosecutions for unlawful assault weapons possession.
As the majority concedes, a defendant’s actual knowledge that a firearm has the attributes of an assault weapon can be proven circumstantially, typically by evidence of a defendant’s familiarity with firearms. (Maj. opn, ante, at p. 885.) The only prosecutions that are likely to be aided by the majority’s “should have known” standard are those of novice firearm owners, such as a widow who inherits her husband’s rifle that she has never fired or even handled. The majority’s holding will facilitate her prosecution. It may not have occurred to her to examine the rifle to determine its precise make and model, the characteristics making it an assault weapon. Yet, under the majority’s holding, she could now face felony conviction and state imprisonment because, in the majority’s view, those characteristics are something she “should have known.”
Like the Court of Appeal, I would hold that an element of the offense of possessing an unregistered assault weapon is actual knowledge by the accused that the firearm has the characteristics that make it an assault weapon. In this case, the prosecution did not prove such knowledge by the minor. Therefore, I would affirm the judgment of the Court of Appeal, reversing the assault weapons charge.
Baxter, J., concurred.
Appellant’s petition for a rehearing was denied September 20, 2000.
Further undesignated statutory references are to the Penal Code.
In accord with common practice, I use the terms “mental state” and “mens rea” to include forms of negligence and strict liability, which do not require proof of any subjective state of mind.