People v. Azevedo

Page 270

207 Cal.Rptr. 270

161 Cal.App.3d 235

The PEOPLE, Plaintiff and Respondent, v. Gerald Richard AZEVEDO, Defendant and Appellant.

D000025.

Cr. 15539.

Court of Appeal, Fourth District, Division 1, California.

Oct. 25, 1984.

Hearing Denied Dec. 20, 1984.

Jonathan M. Purver, Novato, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Jay M. Bloom and Steven H. Zeigen, Deputy Attys. Gen., for plaintiff and respondent.

WIENER, Acting Presiding Justice.

Gerald Richard Azevedo appeals the judgment entered on a jury verdict convicting him of possessing a sawed-off shotgun (Pen.Code § 12020, subd. (a). ¹

Possessing a sawed-off shotgun is lawful unless the barrel is "less than 18 inches in length" or the weapon "has a overall length of less than 26 inches" ( § 12020, subds. (a) and (d)(1).) ² The principal issue here is whether a violation of section 12020, subdivision (a) requires proof of a defendant's knowledge of the unlawful dimensions. Alternatively, may a defendant successfully defend on the ground he reasonably believes in good faith the weapon was of lawful dimensions? After our examination of the legislative intent underlying the statute, we hold possessing a sawed-off shotgun is a criminal offense regardless of the defendant's good faith belief that the weapon is of lawful size. Provided a person knows the weapon is a sawed-off shotgun, knowledge of the dimensions is neither an element of the offense which must be proved, nor a defense which a defendant may assert. We also conclude Azevedo's remaining contentions are without merit and affirm the judgment.

Factual and Procedural Background

Oceanside police officers Davis and Ziegler were on duty at a motel when Davis saw a man place a shotgun in the rear seat of a parked car. The officers drew their weapons and ordered the occupants out of the car. Azevedo was the driver. The officers retrieved a sawed-off shotgun from the back seat of the car. Measurement later disclosed the barrel was 16 1/2 inches long with the bolt forward and 19 1/2 inches long with the bolt back. The gun's overall length was 35 inches.

Azevedo was charged with unlawfully possessing a sawed-off shotgun and a switchblade knife. ( § 653k.) Before trial the court denied Azevedo's section 1538.5 motion to suppress the shotgun. During trial Azevedo successfully moved for a judgment of acquittal on the switchblade offense. ( § 1118.1). The jury convicted Azevedo of unlawfully possessing the shotgun.

Discussion

I

Azevedo attempted several times during trial to persuade the court that knowledge of the contraband character of a shotgun (i.e., barrel length less than 18 inches or overall length less than 26 inches) is an element of a section 12020, subdivision (a) offense. The court rejected Azevedo's efforts and instructed the jury the People need only prove Azevedo (1) exercised control or had the right to exercise control over a sawed-off shotgun, and (2) knew of the presence of the sawed-off shotgun. (CALJIC No. 12.35 (1979 rev.).)

To support his argument Azevedo relies primarily on People v. Prochnau (1967) 251 Cal.App.2d 22, 59 Cal.Rptr. 265. Prochnau was convicted of possessing three contraband items: a sawed-off shotgun( § 12020, subd. (a)), a concealable firearm ( § 12021, subd. (a)) and morphine. (Health & Saf.Code, former § 11500.) In rejecting Prochnau's challenge to the sufficiency of the evidence the court stated "that to establish unlawful possession of a contraband object it must be shown that the defendant exercised dominion and control over the object with knowledge of its presence and contraband character." (Id., at p. 30, 59 Cal.Rptr. 265, emphasis supplied.) The court based this statement on an earlier case involving the possession of heroin in violation of Health and Safety Code, former section 11500. (People v. Redrick (1961) 55 Cal.2d 282, 283, 285, 10 Cal.Rptr. 823, 359 P.2d 255, cited in People v. Prochnau, supra, 251 Cal.App.2d at p. 30, 59 Cal.Rptr. 265.) Thus, even though narcotics oriented in its source and technically dictum due to the reversal on other grounds, Prochnau's list of required elements appears to apply to the shotgun and concealable firearm offenses as well as to the morphine offense.

The Attorney General responds by citing cases which stress the serious dangers sawed-off shotguns present to society and which describe the purpose of section 12020 as outlawing possession of a class of instruments normally used only for criminal purposes. (People v. Satchell (1971) 6 Cal.3d 28, 41-42, 98 Cal.Rptr. 33, 489 P.2d 1361; People v. Favalora (1974) 42 Cal.App.3d 988, 992-993, 995, 117 Cal.Rptr. 291; People v. Stinson (1970) 8 Cal.App.3d 497, 500-501, 87 Cal.Rptr. 537; People v. Wasley (1966) 245 Cal.App.2d 383, 386, 53 Cal.Rptr. 877; People v. Guyette (1964) 231 Cal.App.2d 460, 467, 41 Cal.Rptr. 875.) Consequently, possessing a sawed-off shotgun is "illegal per se." (People v. Favalora, supra, 42 Cal.App.3d at p. 995, 117 Cal.Rptr. 291, citing People v. Stinson, supra, 8 Cal.App.3d at p. 501, 87 Cal.Rptr. 537.) The People need not prove the shotgun is operable (People v. Favalora, supra, 42 Cal.App.3d at pp. 991, 994-995, 117 Cal.Rptr. 291) or even assembled and ready for immediate use. (People v. Guyette, supra, 231 Cal.App.2d at p. 467, 41 Cal.Rptr. 875.) The People also need not show the defendant contemplated an unlawful use for the shotgun (People v. Stinson, supra, 8 Cal.App.3d at p. 501, 87 Cal.Rptr. 537) or had an intent or propensity for violence. (People v. Satchell, supra, 6 Cal.3d at p. 42, 98 Cal.Rptr. 33, 489 P.2d 1361; People v. Favalora, supra, 42 Cal.App.3d at pp. 993, 994, 117 Cal.Rptr. 291.) This strict interpretation of section 12020, subdivision (a) would seem to apply equally to Azevedo's proposal to require proof of a defendant's knowledge of the contraband character of a shotgun.

We believe the reasoning and analysis in People v. Corkrean (1984) 152 Cal.App.3d 35, 199 Cal.Rptr. 375 is persuasive. Corkrean was convicted of possessing a machinegun in violation of section 12220. A machinegun is defined as an automatic weapon. ( § 12200.) The question presented was "whether an element of the crime proscribed by section 12220 is knowledge that the weapon possessed is an automatic one." (Id., at p. 36, 199 Cal.Rptr. 375.) Was proof required of Corkrean's knowledge of the contraband character of his weapon? After comprehensively reviewing the history and terminology of the Dangerous Weapons' Control Law ( §§ 12000-12601), the court held no such proof was required explaining:

"The Dangerous Weapons' Control Law, as initially enacted in 1953 [citation], prohibited any possession of a machine gun ( § 12220) and any possession of specified dangerous weapons ( § 12020), but prohibited only knowingly possessing tear gas or a tear gas weapon ( § 12420). Through subsequent amendments, The Dangerous Weapons' Control Law now additionally prohibits possessing or knowingly transporting specified fixed ammunition ( § 12304...), knowingly permitting another to carry a loaded weapon in one's car ( § 12034...),and knowingly possessing and knowingly transporting specified handgun ammunition ( §§ 12320, 12321...). The Legislature's repeated selected use of the word 'knowingly' throughout The Dangerous Weapons' Control Law thus supports the Daniels [ ³ court's conclusion that, in the weapons field, the Legislature has consciously distinguished between possessory and other offenses requiring knowledge, and possessory offenses punishable without regard to the defendant's awareness of the character of the item possessed." (People v. Corkrean, supra 152 Cal.App.3d at pp. 39-40, 199 Cal.Rptr. 375, original emphasis.)

The foregoing analysis applies to the statute before us. The absence of the word "knowingly" in section 12020, subdivision (a) reflects the Legislature's intent that possessing a sawed-off shotgun is a crime even though the defendant does not know the dimensions of the weapon or reasonably believes those dimensions bring the weapon within lawful limits.

In reaching this conclusion, we are well aware that at common law " ' "an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which the person is indicted an innocent act, has always been held to be a good defense...." ' ( Matter of Application of Ahart, 172 Cal. 762, 764-765 [159 P. 160], quoting from Regina v. Tolson, [1889] 23 Q.B.D. 168, s.c., 40 Alb. L.J. 250.)" (People v. Hernandez (1964) 61 Cal.2d 529, 535, 39 Cal.Rptr. 361, 393 P.2d 673.) Nonetheless, there are numerous instances where culpability has been completely eliminated as a necessary element of criminal conduct. (Id., at p. 532, 39 Cal.Rptr. 361, 393 P.2d 673.) The case before us is one of those instances where it is evident that the public policy considerations relating to the substantial harm associated with possessing a dangerous or deadly weapon prompted the Legislature to delete the need for a person to know the contraband character of that weapon. It is not a heavy burden for a person who knowingly possesses a sawed-off shotgun to first determine the dimensions of that weapon or otherwise possess it at his or her own peril.

II

Azevedo notes section 12020 does not define the term "barrel" as used in subdivision (d)(1). He says this omission makes it unclear whether the barrel of a sawed-off shotgun ends at the face of the closed bolt or the open bolt. He argues this uncertainty must be resolved in his favor by defining barrel length in terms of an open bolt, thus requiring reversal because the 19 1/2 inch barrel of his shotgun exceeded the statutorily set maximum length for a sawed-off shotgun. (See § 12020, subd. (d)(1), ante.)

"Generally, the provisions of a penal statute are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice. [Citations.] When the statute is susceptible of...