Opinion
C084302
04-20-2020
The PEOPLE, Plaintiff and Respondent, v. Raymond Douglas MAY, Defendant and Appellant.
Jyoti Malik, Woodland, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of parts I, IIA, III, and IV of the Discussion.
Jyoti Malik, Woodland, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
Robie, Acting P. J. Following a jury trial, defendant Raymond Douglas May was found guilty of possessing an assault weapon and a machine gun based on his possession of a single AK-47 assault rifle while guarding a marijuana plantation. He was sentenced to probation, which included an electronic search condition. On appeal, defendant contends there was a lack of sufficient evidence corroborating his accomplice’s testimony and demonstrating he knew of the firearm’s illegal character. He further alleges instructional error, in that the accomplice instruction should have included language specifying that the accomplice testimony needs to prove more than defendant’s mere presence or access to the firearm. Finally, he asserts the electronic search condition imposed as part of his probation fails under Lent . ( People v. Lent (1975) 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545.) We agree defendant’s electronic search condition must be stricken, but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I
The Offense
In early October 2016, Antonio Alanis-Rodriguez volunteered to work on a marijuana plantation in Butte County to learn about the emerging market. He arrived on October 3 and met employees of the plantation, including defendant, although he did not learn any of their names. Alanis-Rodriguez was shown around the 165-acre property, which had eight grow sites containing over 490 plants in total. Five of the grow sites were on the southern portion of the property and three were on the northern portion. What appeared to be a main campsite, consisting of multiple trailers outfitted with sleeping quarters, was located on the southern side of the property. There was also a small building with a trimming machine used for marijuana processing on the north side of the property.
After touring the plantation, Alanis-Rodriguez was told to set up his tent near a grow site on the northern side of the property. The site was a third of a mile away from the main campsite. Someone asked Alanis-Rodriguez whether he would take on a tent mate, and then defendant was assigned to bunk with him. Once both men were in the tent, somebody gave an AK-47 rifle to defendant through the opening of the tent. Alanis-Rodriguez expressed discomfort but defendant assured him he would remove the gun from the tent and put it in a truck in the morning. Alanis-Rodriguez had never seen a gun like the AK-47 before but said it looked like the guns he saw in video games. Alanis-Rodriguez asked defendant about the job expectations for the next day, and defendant told him they were going to water the plants.
When the men woke up the next morning, defendant put the AK-47 in a nearby parked truck as promised, and left the passenger side doors open. The truck was registered to Juan Paises-Hernandez. The men walked to another grow site before returning to the grow site they had slept near. Upon their return, defendant and Alanis-Rodriguez saw Butte County Sheriff’s deputies executing a search warrant of the marijuana plantation. Officers discovered the AK-47 on the backseat of the truck parked at the grow site defendant and Alanis-Rodriguez were assigned to guard. They found identifying information of both defendant and Alanis-Rodriguez inside the tent. A search of defendant did not yield keys to the truck and defendant was never seen driving the truck.
Alanis-Rodriguez testified all doors to the truck were closed at the time Detective James Marshall executed the search warrant, while Detective Marshall testified they were open. As we must, we interpret the facts in the light most favorable to the judgment. (People v. Brooks (2017) 3 Cal.5th 1, 57, 219 Cal.Rptr.3d 331, 396 P.3d 480.)
There were tents set up at the other grow sites on the plantation. A shotgun was also found on the property but not confiscated because it was a legal firearm. Paises-Hernandez’s belongings were found in a trailer at the main campsite. Both defendant and Alanis-Rodriguez, along with Paises-Hernandez were arrested. Alanis-Rodriguez pled no contest to possession of an AK-47 and testified against defendant.
II
Expert Testimony
Detective Marshall testified as an expert about the marijuana cultivation business. It is common for employees on a marijuana plantation to sleep near the grow sites to ensure the product is protected. To this extent, it is also common to be armed while guarding these sites. In fact, Detective Marshall has come across fully automatic weapons at marijuana grow sites at least 75 times in his over 20-year career. It is also common for more than one employee to guard a single grow site within a larger plantation.
Detective Marshall believed Paises-Hernandez was in a management position on the marijuana plantation. He based this opinion on Paises-Hernandez’s statements and the fact that the vehicle being used on the plantation was registered to him. Usually, low-level employees do not bring their own vehicles to the site. Further, it appeared Paises-Hernandez slept in one of the trailers at the main campsite, which is typical for management because the trailers provide better sleeping quarters than a tent. Management usually entrusts experienced employees to drive the trucks and possess weapons. It is unusual to trust new employees with vehicles or weapons.
Detective Benjamin Cornelius testified as an expert in firearms. He began his testimony by showing the jury a semiautomatic rifle from his own gun collection. He explained the difference between semiautomatic and fully automatic firearms. He then showed the jury the confiscated AK-47, which had a collapsible stock to make it more compact, a flash suppressor to minimize the explosion from the weapon when fired, a detachable high-capacity magazine holding 30 rounds, and a three-position selector switch. A selector switch usually allows a person to switch the weapon’s setting from safety to semiautomatic fire; however, the seized AK-47 allowed a user to switch the weapon’s setting from safety to fully automatic fire and also to semiautomatic fire.
Although Detective Cornelius could not tell simply by looking at the AK-47 that it was fully automatic, the presence of the three-position selector switch alerted him to the possibility. Upon closer inspection, he realized the gun had been modified to have a third position allowing for fully automatic fire. He compared the features of the seized AK-47 to his semiautomatic rifle and noted his semiautomatic rifle was missing the collapsible stock, flash suppressor, and large-capacity magazine.
DISCUSSION
See footnote *, ante .
II
Sufficient Evidence Supports Defendant’s Convictions
Defendant contends insufficient evidence supports his convictions because no evidence established he knew of the illegal character of the AK-47. We disagree.
The principles governing our assessment of defendant’s challenge to the sufficiency of the evidence are well settled. "We ‘ " ‘must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt....’ " ’ ‘Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.’ " ( People v. Brooks, supra , 3 Cal.5th at p. 57, 219 Cal.Rptr.3d 331, 396 P.3d 480.) A
See footnote *, ante .
B
Possession Of A Machine Gun
Section 32625, subdivision (a) provides: "Any person ... who within this state possesses or knowingly transports a machinegun ... is guilty of a public offense ...." (Ibid. ; 1170, subd. (h)(1).) A machine gun is any weapon that shoots "automatically more than one shot, without manual reloading, by a single function of the trigger." (§ 16880.)
In 1953, the Second District, Division Three, interpreted an earlier version of this law. ( People v. Daniels (1953) 118 Cal.App.2d 340, 257 P.2d 1038.) It concluded "the Machine Gun Law" was a strict liability offense. ( Id. at p. 343, 257 P.2d 1038.) The court reasoned, "[i]n view of the use of the word ‘knowingly’ as applied to transportation, we think it conclusive that, as applied to the possession of a machine gun, the Legislature intended that the mere fact of possession should constitute the crime." ( Id. at p. 345, 257 P.2d 1038.) Because the statute’s language was unequivocal, the court saw "a clear legislative determination that society can best be protected against the evil of possession by a vigorous application of an inflexible rule. No doubt the Legislature felt that possession of a machine gun could hardly be had without knowledge that the object was in fact a machine gun; and that, on the other hand, there may be innocent, unwitting, inadvertent, or unintended acts of transportation." ( Ibid. )
The statute forbid sale, offering for sale, possession or knowing transportation. (Stats. 1933, ch. 450, p. 1170, § 2.) The statute has remained substantially the same since. It was codified in 1953 after the Daniels decision as section 12220, which was then amended several times without relevant change. In 2012, it was renumbered to section 32625 as part of the Legislature’s effort to make numerous nonsubstantive revisions to the deadly weapons statutes. (§ 16005; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 1080 (2009-2010 Reg. Sess.) as amended Apr. 7, 2010.)
In 1984, the First District, Division Four, revisited the issue and determined possession of a machine gun a strict liability crime. ( People v. Corkrean (1984) 152 Cal.App.3d 35, 38-39, 199 Cal.Rptr. 375.) It thought it a question of statutory construction and rejected the defendant’s attempt to analogize the statute to possession of narcotics, where scienter is implied. ( Id. at p. 38, 199 Cal.Rptr. 375.) It reasoned that in narcotics law, scienter was missing from the statutes altogether, thus it could be consistently read into the statutory language. Here, scienter is specified for one type of conduct (transport) but not another (possession), showing a clear intent to treat these acts differently. ( Id. at pp. 38-39, 199 Cal.Rptr. 375.) Further, the Legislature knows the law and failed to amend possession of a machine gun to include a knowledge requirement despite having amended the statute for other reasons and other parts of the statutory scheme to include knowledge requirements. ( Id. at pp. 39-40, 199 Cal.Rptr. 375.)
In 1994, the United States Supreme Court concluded the federal law prohibiting possession of a machine gun was not a strict liability offense despite the fact the statute was silent regarding mens rea. ( Staples v. United States (1994) 511 U.S. 600, 114 S.Ct. 1793, .) It started with the language of the statute read in light of common law principles favoring mens rea. The Supreme Court questioned whether the presumption of a mens rea was rebutted by express or implied congressional intent to the contrary. It concluded it was not because the statute was silent in that regard. ( Id. at pp. 605-606, 619, 114 S.Ct. at 1796–98, 1804, [128 L.Ed.2d at pp. 615-616, 624-625].) It then analyzed whether the presumption could be rebutted because the statute defined a public welfare offense, concluding it did not. ( Id. at p. 606-619, 114 S.Ct. at 1797–98, [128 L.Ed.2d at pp. 616-624].)
In 2000, our Supreme Court decided In re Jorge M. after the appellate court’s decision to read mens rea into the statute prohibiting possession of an assault weapon. ( In re Jorge M. , supra , 23 Cal.4th at p. 871, 98 Cal.Rptr.2d 466, 4 P.3d 297.) In doing so, the appellate court distinguished Corkrean and Daniels as having been decided before Staples and other decisions limiting the circumstances when the courts may infer a legislative intent to create a strict liability offense. ( In re Jorge M. (1998) 66 Cal.App.4th 809, 819-821, 78 Cal.Rptr.2d 320.) Notably, our Supreme Court did not adopt this reasoning, even though it agreed with the appellate court a knowledge requirement was appropriate. Instead, it followed the analytical framework announced in Staples.
While the appellate court concluded a defendant must know he or she is in possession of an assault weapon, our Supreme Court concluded the criminal negligence standard of knew or reasonably should have known was appropriate. (In re Jorge M. , supra , 23 Cal.4th at p. 885, 98 Cal.Rptr.2d 466, 4 P.3d 297.)
First, our Supreme Court determined whether the plain meaning of the assault weapon statute expressly or by necessary implication excluded a knowledge requirement. It concluded the statute was silent. ( In re Jorge M. , supra , 23 Cal.4th at p. 872, 98 Cal.Rptr.2d 466, 4 P.3d 297.) It then analyzed whether possession of an assault weapon was a public welfare offense, concluding it was not. ( Id. at pp. 872-877, 98 Cal.Rptr.2d 466, 4 P.3d 297.) In doing so, the court distinguished Corkrean and Daniels as dealing with a statute containing language of scienter in its prohibition on transportation but not in its prohibition on possession, as opposed to the statute at issue which was completely silent. ( Id. at p. 878, 98 Cal.Rptr.2d 466, 4 P.3d 297.) In a footnote, our Supreme Court cautioned: "Because this case involves only the interpretation of the [Assault Weapons Control Act], we have no occasion to address the interpretation of other weapons laws. We note, however, that, in addition to potentially significant differences in statutory language, there are other important considerations that come into play when a court is requested to modify an established judicial interpretation of a statute. (See, e.g., Patterson v. McLean Credit Union (1989) 491 U.S. 164, 172-173, [109 S.Ct. 2363, 2370, 105 L.Ed.2d 132] [noting special force of stare decisis considerations in area of statutory interpretation"].) ( In re Jorge M. , at p. 877, fn. 7, 98 Cal.Rptr.2d 466, 4 P.3d 297.)
Since Jorge M. , our Supreme Court has had occasion to interpret strict liability crimes. (See People v. King (2006) 38 Cal.4th 617, 621-628, 42 Cal.Rptr.3d 743, 133 P.3d 636 [weapon possession statute required knowledge because silent as to intent and not public welfare offense]; see also In re Jennings (2004) 34 Cal.4th 254, 268, 17 Cal.Rptr.3d 645, 95 P.3d 906 [finding public welfare offense after concluding statute silent regarding mens rea].) Our Supreme Court has not had occasion to interpret a statute similar to possession of a machine gun, where a knowledge requirement is referenced regarding one act but not the other.
Given this history, we now return to possession of a machine gun and conclude it is a strict liability offense. The reasoning of Daniels and Corkrean rings true in light of current case law. Both Staples and Jorge M. concluded the statutes at issue there required some form of knowledge because the statutes were silent. ( Staples v. United States , supra , 511 U.S. at pp. 605-606, 619, 114 S.Ct. at 1796–98, 1804, [128 L.Ed.2d at pp. 615-616, 624-625] ; In re Jorge M. , supra , 23 Cal.4th at p. 872, 98 Cal.Rptr.2d 466, 4 P.3d 297.) Here, that is not the case -- the statute mentions knowledge in relation to transportation and not in relation to possession. (§ 32625, subd. (a).) Because the statute contains a knowledge requirement, it is not like the silent statutes in Staples and Jorge M. , and we can imply a legislative intent through the plain meaning of the statute. The Legislature’s selective use of the word knowing in the statute should not be ignored by California courts. We agree with the Daniels and Corkrean courts that the failure to specify scienter for possession of a machine gun, when one was specified for transportation, indicates the Legislature intended the crime of possession to be accomplished without knowledge.
Further, the language prohibiting possession and transportation of a machine gun was enacted in 1933 and determined to define a strict lability offense by its express terms in 1953, and again in 1984. (Stats. 1933, ch. 450, p. 1170, § 2; People v. Corkrean , supra , 152 Cal.App.3d at pp. 38-39, 199 Cal.Rptr. 375 ; People v. Daniels , supra , 118 Cal.App.2d at pp. 344-345, 257 P.2d 1038.) It then went unchanged for decades after that determination, despite amendments to the statute itself and other portions of the Control of Deadly Weapons Act, not to mention an overhaul of the entire scheme to ensure statutes imposing criminal penalties are easily understandable. (See Corkrean , at p. 39, 199 Cal.Rptr. 375 ; see also § 32625; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 1080 (2009-2010 Reg. Sess.) as amended Apr. 7, 2010.) The Legislature is presumed to know the law. ( Corkrean , at pp. 39-40, 199 Cal.Rptr. 375.) Its inaction in amending the possession element of the statute in spite of cases concluding it a strict liability offense, leads us to the conclusion it intended the crime to be a strict liability offense.
We are cognizant that times have changed, and possession of a machine gun is not always as obvious as the Daniels court described it. ( People v. Daniels , supra , 118 Cal.App.2d at p. 345, 257 P.2d 1038.) Given modern advances in weapon technology, it is possible the Legislature never envisioned a situation where formally-legal firearms could be internally modified without external clues to the modifications, much like the situation in this case. Still, the language of the statute combined with its history, persuade us the offense remains strict liability. For these reasons, sufficient evidence supports defendant’s conviction for possession of a machine gun.
See footnote *, ante .
DISPOSITION
The order granting probation is modified by striking the electronic search condition. As modified, the order is affirmed. Nothing in this opinion prevents the trial court from exercising its discretion, following a noticed hearing, to modify the probation terms if presented with additional facts that would tie an electronic search condition to defendant’s future criminality as set forth in Ricardo P. (See § 1203.3, subds. (a), (b); People v. Leiva (2013) 56 Cal.4th 498, 505, 154 Cal.Rptr.3d 634, 297 P.3d 870 [order modifying probation based on the same facts exceeds the court’s jurisdiction].)
We concur:
Murray, J.
Renner, J.