Return to CALJIC Part 9-12 – Contents
F 12.40 n1 Possession Of Deadly Weapon: Possession Issues (PC 12020).
For issues relating to possession, see generally, FORECITE F 1.24.
[Research Note: See FORECITE BIBLIO 12.40]
F 12.40 n2 Possession Of Deadly Weapon: Intoxication Or Mental Impairment May Negate Knowledge (PC 12020).
A necessary element of the crime defined by PC 12020 is “knowledge of the presence of the weapon.” (See CJ 12.40; see also People v. Corkrean (84) 152 CA3d 35, 41 [199 CR 375].) The question of whether intoxication, mental defect, etc. may negate the knowledge elements of drug possession crimes is discussed at FORECITE F 4.21 n4.
[Research Note: See FORECITE BIBLIO 12.40]
F 12.40 n3 Possession Of Deadly Weapon: Knowledge Of Character Of The Weapon (PC 12020).
PC 12020 prohibits the possession of various deadly weapons such as sawed off shotguns, machine guns, and bullets containing explosives. Several cases have held that knowledge of the character of the deadly weapon is not an element of the charge. (See People v. Corkrean (84) 152 CA3d 35, 37-38 [199 CR 375] (machine gun); People v. Valencia (89) 214 CA3d 1410 [263 CR 301] (sawed off shotgun); and People v. Lanham (91) 230 CA3d 1396 [282 CR 62] (explosive bullets).) Hence, the court need only instruct the jury that the defendant had knowledge of the presence of the weapon. (See CJ 12.40; compare, possession of controlled substance which requires knowledge of both the presence of the contraband and its nature as a controlled substance (see CJ 12.00 and authorities cited in comment thereto).)
But see FORECITE F 4.013a re lack of knowledge as to nature of weapon as an affirmative defense.
[Research Note: See FORECITE BIBLIO 12.40]
F 12.40 n4 Possession Of Illegal Weapons: Juror Unanimity (PC 12020).
When there is evidence that the defendant was in possession of two or more illegal weapons the possession of which was separated either in terms of time or space, then the jury should be given an instruction requiring a unanimous determination as to which possession constitutes the offense. (See FORECITE F 17.01 n6.)
[Research Note: See FORECITE BIBLIO 12.40]
F 12.40 n5 Possession Of Deadly Weapon: Multiple Conviction (PC 12020).
As to the permissibility of multiple conviction for the possession of multiple units of contraband see FORECITE F 17.02 n4.
[Research Note: See FORECITE BIBLIO 12.40]
F 12.40 n6 Possession Of Deadly Weapon: Duty To Define “Right To Control” (PC 12020).
[See FORECITE F 1.24 n5.]
[Research Note: See FORECITE BIBLIO 12.40]
F 12.40 n7 Possession Of A Cane Sword (PC 12020(a)): Scienter/Knowledge Requirement.
To be guilty of possessing a cane sword, a person must know the cane actually conceals a sword. In People v. Taylor (2001) 93 CA4th 933, 937-941 [114 CR 2d 23] the court concluded that possession of a cane sword was not a strict liability offense 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.” (Taylor, 93 CA4th at 941.)
See also FORECITE F 12.40a.
F 12.40 n8 Possession Of Deadly Weapon: Prohibited Items.
Effective January 1, 2002, PC 12020 was amended to provide some exemptions for the possession of large-capacity magazines. PC 12020 was also amended, concerning the definition of flechette dart, to clarify that the word “approximately” applies to the length of the tail fin, as well as to the overall length of the dart. (Stats. 2001, Ch. 937, 130 (SB 626, SB 578).)
F 12.40a
Illegal Possession of Certain Weapons:
Requirement of Knowledge of the Character of the Weapon
(PC 12020)
*Add to CJ 12.40 as element of the charge:
The defendant knew [or reasonably should have known] that the instrument possessed had the following characteristics: ____________ (insert characteristics of the weapon which makes it proscribed by the statute, e.g., undetectable firearm, bullet containing an explosive, blackjack).
Points and Authorities
Courts have consistently disapproved imposition of criminal liability based upon a “strict liability” interpretation of a statute in situations where the defendant is unaware of all the facts which bring the act committed within the criminal statute. (Lambert v. California (57) 355 US 225 [2 LEd2d 228; 78 SCt 240]; see also, Ninth Circuit Model Criminal Instructions (1995) No. 5.05, p. 79 [defendant must have knowingly intended to do “what the statute prohibits”]; U.S. v. Nguyen (9th Cir. 1995) 73 F3d 887, 890 [“… a person is not criminally responsible unless ‘an evil-meaning mind’ accompanies ‘an evil-doing hand.’ [Citation.]”]; People v. Simon (95) 9 C4th 493, 519-22 [37 CR2d 278]; FORECITE 1.20a, 3.30a.)
In the specific context of weapon possession offenses, courts have interpreted this principle to require that the defendant have knowledge of the characteristics of the weapon that bring it within the statutory proscription. (See Bryan v. U.S. (98) 524 US 184 [141 LEd2d 197; 118 SCt 1939] [possession of unregistered machine guns statute requires proof that the defendant knew the weapon he possessed had the characteristics that brought it within the statutory definition of a machine gun]; Staples v. U.S (94) 511 US 600 [128 LEd2d 608; 114 SCt 1793] [federal statute making it unlawful to possess an unregistered machine gun properly construed as requiring proof that defendant knew the characteristics of the firearm that he possessed met the statutory definition]; see also, J. Shinn’s conc. op. in People v. Daniels (53) 118 CA2d 340, 345 [257 P2d 1038] [“… I am convinced that complete lack of knowledge of the nature of an article, even a machine gun, possession of which is forbidden, would be a good defense”].)
In other words, lack of knowledge of the character of the weapon (e.g., that the bullets contained explosives) is equivalent to a mistake of fact which negates the requisite knowledge necessary for criminal intent. (See eg., People v. Hernandez (64) 61 C2d 529, 535 [39 CR 361] [lack of knowledge as to the age of the victim in a statutory rape charge]; see also FORECITE [mistake of fact to negate criminal intent].)
In re Jorge M. (2000) 23 C4th 866 [98 CR2d 466] construed PC 12280(b) as requiring knowledge of, or negligence in regard to, the facts making possession of the weapon criminal. “[T]he People bear the burden of proving the defendant knew or reasonably should have known the firearm possessed the characteristics bringing it within the [Assault Weapons Control Act]…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.” (Jorge M., 23 C4th at 888.)
However, use of the “reasonably should have known” negligence standard may be subject to challenge. (See FORECITE F 10.02b.)
See also FORECITE F 12.40 n7.
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]
NOTES: See FORECITE F 4.21 n4, re: negation of knowledge by intoxication.
See also FORECITE F 18.70 n1 [Possession Of Silencer: Knowledge Element (PC 12520).