People v. Taylor

114 Cal. Rptr. 2d 23, 93 Cal. App. 4th 933, 2001 Cal. Daily Op. Serv. 9682, 2001 Daily Journal DAR 12095, 2001 Cal. App. LEXIS 2000

Opinions

Opinion

SCOTLAND, P. J.

Among the crimes of violence, illicit drugs, and illegal possession of weapons of which defendant James Patrick Taylor was convicted is the possession of a cane sword. (Pen. Code, § 12020, subd. (a); further section references are to the Penal Code unless otherwise specified.)

In the published portion of this opinion, we agree with defendant that the trial court erred in failing to instruct the jury that, to be guilty of possessing a cane sword, a person must know the cane actually conceals a sword. As we will explain, the application of factors considered in determining whether the Legislature intended a criminal statute to impose liability without proof of scienter leads us to conclude that possession of a cane sword is not a strict liability offense. In order to protect against the significant possibility of punishing innocent possession by one who believes he or she simply has an ordinary cane, we infer the Legislature intended a scienter requirement of knowledge that the cane conceals a sword.

In the unpublished parts of our opinion, we reject defendant’s remaining claims of error. Accordingly, we shall reverse the cane sword conviction and otherwise affirm the judgment.

Facts and Procedural Background

When officers searched the residence occupied by defendant, a convicted felon, they found 72 grams of methamphetamine, 102.8 grams of marijuana, 49 grams of psilocybin mushrooms, a firearm, and $8,150 in cash.

Six months later, during the search of a storage room leased by defendant, officers found marijuana and psilocybin mushrooms, numerous firearms and types of ammunition, and a cane sword. When defendant was arrested that day, he had a small amount of marijuana in his sock.

Three and a half months later, while defendant was out on bail, a patrol officer saw defendant and Edward M. (Edward) on the ground in a bear hug in front of an apartment complex. Edward was covered in blood. Defendant jumped up and exclaimed: “He beat up my girlfriend.” By the time Edward was examined at a hospital, he had lost 500 cc’s of blood and complained of pain in his face, eyes and hand. He also had difficulty seeing. The treating physician testified that Edward had a large, complex laceration on the bridge of his nose, which was swollen and bloody, acute nose fractures, corneal abrasions, bruises on his upper and lower eyelids, and a cervical strain in his neck. In the physician’s opinion, the injuries had occurred only a few hours before the examination.

In case No. 99321, defendant was convicted of three counts of possessing controlled substances (methamphetamine and psilocybin) for sale (Health & Saf. Code, § 11378), with an armed allegation as to two counts (§ 12022, subd. (c)); two counts of possessing marijuana for sale (Health & Saf. Code, § 11359), with armed allegations (§ 12022); two counts of being a convicted felon in possession of a firearm (§ 12021, subd. (a)); being a convicted felony in possession of ammunition (§ 12316, subd. (b)(1)); and possessing a cane sword (§ 12020, subd. (a)). In case No. 991011, defendant was convicted of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), with a great bodily injury enhancement (§ 12022.7, subd. (a)), and on-bail enhancement (§ 12022.1). He received an aggregate term of 15 years in state prison.

Discussion

I-V

Footnotes

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VI

Section 12020, subdivision (a) provides in pertinent part: “Any person in this state who does any of the following is punishable by imprisonment in a county jail not exceeding one year or in the state prison: [f] (1) . . . possesses any cane gun or wallet gun, any undetectable firearm, any firearm which is not immediately recognizable as a . firearm, any camouflaging firearm container, any ammunition which contains or consists of any fléchette dart, any bullet containing or carrying an explosive agent, any ballistic knife, any multiburst trigger activator, any nunchaku, any short-barreled shotgun, any short-barreled rifle, any metal knuckles, any belt buckle knife, any leaded cane, any zip gun, any shuriken, any unconventional pistol, any lipstick case knife, any cane sword, any shobi-zue, any air gauge knife, any writing pen knife, any metal military practice handgrenade or metal replica handgrenade, or any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sap, or sandbag.” (Italics added.)

Thus, included in this menagerie of unusual, sophisticated weapons, some with mysterious and evil-sounding names, is a cane sword, which is defined as “a cane, swagger stick, stick, staff, rod, pole, umbrella, or similar device, having concealed within it a blade that may be used as a sword or stiletto.” (§ 12020, subd. (c)(15).) From outward appearance, a cane sword seems to be a common walking cane. (Traditional Curved Sword Cane (2001) <http://www.graceworld.com/swordcanes/gvyuc727b.htm> [as of Nov. 14, 2001].) Its unlawful component—the sword blade—is neatly concealed inside the cane, with a fitting and seal keeping the curved handle locked in position while the cane is used for walking. The blade is ejected with the twist of the handle. (Ibid)

Defendant contends that an element of the crime of possessing a cane sword in violation of section 12020, subdivision (a)(1) is knowledge that the cane conceals a sword. Accordingly, he argues, his conviction for violating that section must be reversed because the trial court did not instruct the jury on the knowledge element of the crime and because the prosecutor failed to present evidence from which the jurors could infer defendant had the requisite knowledge that the cane he possessed concealed a sword. Although we disagree with the second point, we find merit in the first.

As acknowledged by our dissenting colleague, “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.” (In re Jorge M. (2000) 23 Cal.4th 866, 872 [98 Cal.Rptr.2d 466, 4 P.3d 297].) This generally is so because “1 “[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.” . . .’ [Citation.] In other words, there must be a union of act and wrongful intent, or criminal negligence. [Citations.] ‘So basic is this requirement that it is an invariable element of every crime unless excluded expressly or by necessary implication.’ ” (People v. Coria (1999) 21 Cal.4th 868, 876 [89 Cal.Rptr.2d 650, 985 P.2d 970].)

There is, however, an exception for certain types of penal laws, often referred to as public welfare offenses, for which the Legislature has intended that proof of scienter or wrongful intent is not necessary for conviction. (In re Jorge M., supra, 23 Cal.4th at p. 872; People v. Coria, supra, 21 Cal.4th at p. 876.) “Such offenses generally are based upon the violation of statutes which are purely regulatory in nature and involve widespread injury to the public. [Citation.] ‘Under many statutes enacted for the protection of the public health and safety, e.g., traffic and food and drug regulations, criminal sanctions are relied upon even if there is no wrongful intent. These offenses usually involve light penalties and no moral obloquy or damage to reputation. Although criminal sanctions are relied upon, the primary purpose of the statutes is regulation rather than punishment or correction. The offenses are not crimes in the orthodox sense, and wrongful intent is not required in the interest of enforcement.’ [Citation.]” (People v. Coria, supra, 21 Cal.4th at pp. 876-877; accord, In re Jorge M., supra, 23 Cal.4th at p. 872.)

Where legislative intent is not readily discerned from the text of a statute, the California Supreme Court has applied a framework that considers seven factors “courts have commonly taken into account in deciding whether a statute should be construed as a public welfare offense [for which the Legislature intended guilt without proof of scienter or wrongful intent]: (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’).” (In re Jorge M., supra, 23 Cal.4th at p. 873, quoting 1 LaFave & Scott, Substantive Criminal Law (1986) § 3.8(a), pp. 342-344.)

Considering these factors, the dissent concludes “the Legislature did not intend that the prosecution prove defendant knew the characteristics that bring the weapon within the proscription of section 12020[, subdivision] (a)(1),” i.e., that the cane concealed a sword. In our colleague’s view, it is a defendant’s burden to raise as a defense that he or she did not know the unlawful characteristic of the cane. (Conc. & dis. opn., post, at p. 952.) We cannot agree.

In In re Jorge M., supra, 23 Cal.4th 866, the Supreme Court interpreted section 12280, subdivision (b), which, among other things, prohibits the possession of an unregistered “assault weapon” as defined in sections 12276 and 12276.1. The specific weapon at issue in that case was an “SKS-45 semiautomatic rifle with a detachable ‘banana clip’ magazine.” (In re Jorge M., supra, 23 Cal.4th at p. 870.) Considering the seven factors that courts commonly have taken into account in deciding whether a statute should be construed as a public welfare offense for which the Legislature intended guilt without “any proof of scienter or wrongful intent” (id. at pp. 872-873), the court concluded that the assault weapon statute is not a strict liability crime. (Id. at pp. 869, 887.) Nevertheless, the court held that, due to the gravity of the public safety threat addressed by the statute and the need for effective enforcement of the law, the assault weapon statute does not require actual knowledge of the weapon’s unlawful characteristics. Rather, guilt can be established by proof that the person charged with unlawfully possessing an assault weapon “knew or reasonably should have known the firearm possessed the characteristics [that make it an assault weapon].” (Id. at pp. 869-870, 887.)

Four of the factors considered by the Supreme Court appear to have weighed most heavily in its decision: the serious threat of harm posed by the unlawful possession of semiautomatic firearms in the form of assault weapons (factor four); the potential difficulty of routinely proving actual knowledge on the part of defendants in the substantial number of prosecutions to be expected under the assault weapon statute (factors six and seven); and the opportunity of the defendant to have ascertained the true facts about the weapon (factor five). (In re Jorge M., supra, 23 Cal.4th at pp. 873, 887.) Of significance to its holding is the Supreme Court’s observation that, because of the general principle that all persons are obligated to learn of and comply with the law, it ordinarily is reasonable to conclude that, absent “exceptional cases in which the salient characteristics of the firearm are extraordinarily obscure, or the defendant’s possession of the gun was so fleeting or attenuated as not to afford an opportunity for examination,” a person who knowingly possesses a semiautomatic firearm reasonably would investigate and determine whether the gun’s characteristics make it an assault weapon. (Id. at p. 885.)

None of these factors applies to a cane sword.

Common sense indicates that a cane sword does not present the serious threat of harm posed by the unlawful possession of a semiautomatic assault weapon (factor four). And common experience indicates that there will not be a substantial number of prosecutions for cane sword possession such that prosecutors will have difficulty routinely proving actual knowledge of the unlawful characteristic of a cane sword (factors six and seven). For example, in this case, the location of the cane sword among the cache of other weapons unlawfully possessed by the able-bodied defendant was circumstantial evidence of his knowledge of the cane sword’s unlawful characteristic.

It also is very significant that, unlike a semiautomatic firearm the outward nature of which reasonably would lead the person possessing it to investigate and determine whether the firearm has the characteristics of an assault weapon, a cane sword is an object the unlawful nature of which is extraordinarily, and intentionally, obscure (factor five). As we have noted, from outward appearance, a traditional curved cane sword seems to be a common walking cane. Its unlawful component—the sword blade—is neatly concealed inside the cane, with a fitting and seal keeping the curved handle locked in position while the cane is used for walking. The blade is ejected with the twist of the handle.

Certainly, the unlawful characteristic of a cane sword is far more obscure than that of a dirk or dagger, the possession of which concealed upon one’s person also is prohibited by section 12020, subdivision (a).

“Because the dirk or dagger portion of section 12020 criminalizes 1 “traditionally lawful conduct,” ’ [possessing a knife],” the California Supreme Court has construed that statute to “contain a ‘knowledge’ element.” (People v. Rubalcava (2000) 23 Cal.4th 322, 331-332 [96 Cal.Rptr.2d 735, 1 P.3d 52]; citing People v. Coria, supra, 21 Cal.4th at pp. 880-881.)¹ “Thus, to commit the offense, a defendant must. . . have the requisite guilty mind-. that is, the defendant must knowingly and intentionally carry concealed upon his or her person an instrument ‘that is capable of ready use as a stabbing weapon.’ (§ 12020, subds. (a), (c)(24).) A defendant who does not know that he is carrying the weapon or that the concealed instrument may be used as a stabbing weapon is therefore not guilty of violating section 12020.” (People v. Rubalcava, supra, 23 Cal.4th at p. 332, fn. omitted.)

So it should be with a cane sword due to the obscure nature of its unlawful characteristic. In order to protect against the significant possibility of punishing innocent possession by one who believes he or she simply has an ordinary cane, we infer the Legislature intended a scienter requirement of actual knowledge that the cane conceals a sword.

The three other factors identified by the Supreme Court support our conclusion. The rationales of In re Jorge M., supra, 23 Cal.4th 866, and People v. Rubalcava, supra, 23 Cal.4th 322, suggest that the context of the statute (factor one) favors a mens rea requirement for the possession of a cane sword, as it does for the possession of a dirk or dagger. And, as acknowledged by the dissent, the general provisions on mens rea and strict liability crimes (factor two) and the severity of punishment (factor three) support a mens rea requirement.

Since the trial court did not instruct the jury that actual knowledge that the cane conceals a sword is an element of the crime and the People make no effort to demonstrate how the error may have been harmless, we shall reverse defendant’s conviction for possessing a cane sword.

Disposition

The conviction for possessing a cane sword is reversed. In all other respects, the judgment is affirmed. The trial court is directed to amend the abstract of judgment accordingly and to reflect that the conviction in count 8 was for violation of section 12021, subdivision (a)(1), not section 12020, subdivision (a)(1). The court is further directed to forward a certified copy of the amended abstract to the Department of Corrections.

Davis, J., concurred.

See footnote, ante, page 933.

1

In People v. Coria, supra, 21 Cal.4th 868, the Supreme Court noted that engaging in chemical synthesis ordinarily is lawful conduct and that unknowing participation in the process of manufacturing methamphetamine is not inherently unlikely. Accordingly, the court inferred that the Legislature intended that, to be guilty of manufacturing methamphetamine, a person must have knowledge of the unlawful characteristic of the substance being produced. (Id. at pp. 880-881.)