People v. Taylor (2001)

THE PEOPLE, Plaintiff and Respondent, v. JAMES PATRICK TAYLOR, Defendant and Appellant.

[Certified for partial publication fn. *]

(Superior Court of Siskiyou County, Nos. 99-321 & 99-1011, Robert F. Kaster, Judge.)

(Opinion by Scotland, P.J., with Davis, J. concurring. Concurring and dissenting opinion by Morrison, J. (see p. 942).)

COUNSEL

Susan K. Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, J. Robert Jibson and Anthony L. Dicce, Deputy Attorneys General, for Plaintiff and Appellant. [93 Cal. App. 4th 935]

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In the unpublished parts of our opinion, we reject defendant's remaining claims of error.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 [93 Cal. App. 4th 937] 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. 99-321, 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. 99-1011, 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 fn. *

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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: [¶] (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.) [93 Cal. App. 4th 938]

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)