People v. Autterson

• Decision Date: 29 April 1968
• Docket Number: Cr. 13626
• Citation: 261 Cal.App.2d 627,68 Cal.Rptr. 113
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles James AUTTERSON, Defendant and Appellant.

Page 113

68 Cal.Rptr. 113

261 Cal.App.2d 627

The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles James AUTTERSON, Defendant and Appellant.

Cr. 13626.

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

April 29, 1968.

Hearing Denied June 26, 1968.

Daniel L. Dintzer, Los Angeles, for appellant by appointment of the Court of Appeal.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Philippe J. Monet, Deputy Atty. Gen., for respondent.

LILLIE, Associate Justice.

A jury found defendant guilty of a violation of section 12420, Penal Code (possession, offering for sale and sale of tear gas). He appeals from the judgment.

About November 20, 1966, there came to the attention of Officer Egger, Beverly Hills Police Department, an advertisement in the Home Section, Los Angeles Times, Sunday Edition, entitled 'Defender of Women--It Works.' Under the title were certain printing and a black and white drawing depicting a hand holding an object pointed toward the face of a person reeling back in apparent pain; it gave a Beverly Hills address. After contacting an intelligence officer, Los Angeles Police Department and obtaining one of the cartridges, Officer Egger went to the Business License Bureau, Beverly Hills; he inspected the records and found no business license issued to the company named in the advertisement.

Around 1 p.m. on November 23, 1966, Officers Egger and Corbett went to the address indicated in the ad. Defendant's name and that of another person were listed on the mail box for apartment 4. The officers went to apartment 4; the door was open but the screen door was closed. In response to Officer Egger's knock, defendant came to the door and inquired whether he could help them. Officer Egger replied yes, showed him his badge and identification card and said: 'We are police officers, we would like to talk to you.' Defendant opened the screen door and said, 'Come on in.' In the apartment Officer Egger showed him the cartridge on which was printed, 'Defender of Women,' and asked, 'Do you sell these? Are you the man that sells these?'; defendant replied, 'Yes,' and walked into the kitchen. He saw defendant reach into a large cardboard box and remove a similar cartridge; defendant said, 'Yes, here it is.' The officer then arrested him and advised him of his constitutional rights. Later outside the police building Officer Egger and Lieutenant Cork shot some of the contents out of the little cartridge taken from defendant and observed a spray which went approximately 12 to 15 feet. Inadvertently they sprayed the contents around the corner of the intake of the air conditioning unit of the police department; when they returned to the building they observed about seven employees coughing, rubbing their eyes and complaining. An analysis of the contents of the cartridges revealed a peppery-type substance--oleoresin capsicum; in the opinion of the forensic chemist should this substance be discharged on a sensitive part of the body (face, eyes, nose or mouth) it would produce physical discomfort.

Appellant contends that the evidence is insufficient to establish his knowledge that the cartridges in his possession contained and were capable of emitting tear gas.

According to section 12420, Penal Code, any person who 'knowingly sells or offers for sale, possesses or transports any form of shell, cartridge, or bomb containing or capable of emitting tear gas, or any weapon designed for the use of such shell, cartridge or bomb, * * * is guilty of a public offense * * *.' Section 12401, Penal Code, defines tear gas, not as any specific chemical, but to 'apply to and include all liquid, gaseous or solid substances intended to produce temporary physical discomfort or permanent injury through being vaporized or otherwise dispersed in the air, * * *'

On the necessity for proving the knowledge required by section 12420, the court said in People v. Taylor, 4 Cal.App.2d 220, 222--223, 40 P.2d 895, 897: 'In establishing the crime charged herein by proofs, it was essential to prove that the defendant knew that the cartridges in his possession contained and were capable of emitting the substance known as tear gas. Knowledge thereof constitutes part of the Corpus delicti. Such knowledge cannot be presumed; it must be established as a fact by competent evidence. The knowledge made a part of this offense by statute is not analogous to the intent which constitutes an essential in certain crimes and as to which the rule that one intends the natural and obvious consequences of his acts applies. In this case a special intent was required to make out the offense, amounting to knowledge of the character and contents of the proscribed cartridges. People v. Brown, 74 Cal. 306, 16 P. 1. That it was true that the cartridges contained tear gas does not alone support an inference that the possessor thereof had knowledge of that fact. People v. Peloian, 95 Cal.App. 96, 272 P. 304.'

That defendant knew that the cartridges in his possession contained or were capable of emitting a substance defined as tear gas in section 12401, Penal Code, is established by his own testimony. He testified that he had in his possession boxes of cartridges for the purpose of sale; that for the purpose of facilitating their sale, he placed the advertisement in the Los Angeles Times showing a drawing of the cartridge pointed toward the face of a person reeling back in apparent pain; and that he was familiar with the words on the cartridges 'When sprayed directly into face of attackers, will immediately render them harmless,' and 'Warning: irritating to eyes, nose, and skin; oleoresin capsicum.' Thus, according to defendant's own admissions he had in his possession cartridges and offered them for sale knowing that they contained a substance which, when sprayed in the face of an attacker--'dispersed in the air'--was capable of producing 'temporary physical discomfort'--immediately rendering him harmless. This is all the statute requires. (§§ 12420, 12401, Pen.Code.) Neither the statute nor People v. Taylor, 4 Cal.App.2d 220, 40 P.2d 895, requires that an accused know the chemical nature or makeup of the substance or that it constitutes 'tear gas,' as long as he knows that it is intended to 'produce temporary physical discomfort * * * through being * * * dispersed in the air.' (§ 12401.) Thus, the proof is sufficient to establish that defendant knew that the cartridges in his possession which he was offering for sale contained and were capable of emitting a substance defined as tear gas. (See PEOPLE V. HURST, 256 CAL.APP.2D ---, --- - ---^A 63 Cal.Rptr. 921.)

The fact, if it was a fact, that defendant did not know the possession and sale of cartridges emitting this substance to be in violation of the law is no defense. He claims that he made an offer of proof relative to certain of his activities prior to going into business, ¹ for the purpose of showing his 'good faith, belief that it was permissible to possess and sell the guns that he had' (A.O.B. p. 11); and the trial judge erred in rejecting the offer of proof.

The offer of proof amounted to a showing that defendant did not know that it was illegal to possess the cartridges and offer them for sale, and that he believed his acts to be lawful. Section 12420, Penal Code, does not afford defendant the defense of ignorance of the law or lack of knowledge of the illegality of his conduct; it requires only that he 'knowingly' possess, sell or offer to sell a cartridge capable of emitting tear gas as defined in section 12401. 'Knowingly' as used therein is defined in section 7, subdivision 5, Penal Code; it 'imports only a knowledge that the facts exist which bring the act or omission within the provisions of this code. It does not require any knowledge of the unlawfulness of such act or omission; * * *' Pertinent is the discussion in People v. Daniels, 118 Cal.App.2d 340, at page 343, 257 P.2d 1038, 1039: 'Knowing possession is not to be confused with criminal intent or with knowledge that an act is a violation of law. The latter signify an evil purpose. Knowing possession or 'knowingly' signifies knowledge of the existence of a fact or facts--in this case, knowledge that the firearm was a machine gun. Section 7(5) of the Penal Code says: 'The word 'knowingly' imports only a knowledge that the facts exist which bring the act or omission within the provisions of this code. It does not require any knowledge of the unlawfulness of such act or omission; * * *' When used in a statute creating a criminal offense the word 'knowingly' must be construed to import only knowledge of the facts. It has no reference to knowledge of the law. People v. Burns, 75 Cal. 627, 630, 17 P. 646.' Thus, defendant's asserted ignorance of the unlawfulness of his acts is no defense as long as he knew of the existence of the facts which bring his acts within the provisions of sections 12420 and 12401, Penal Code. The evidence was properly excluded.

It is interesting to note that while the trial judge rejected the offer of proof, he permitted defense counsel to ask defendant certain related questions, the answers to which could only convey to the jurors, if they believed him, that he did all of the things he offered to prove. Actually he accomplished indirectly what the court prevented him from doing directly. Defendant testified that the existence of the cartridges was brought to his attention through a classified advertisement in the Los Angeles Times; he purchased them from two firms mentioned in the advertisement--one in Akron, Ohio, the other in New York City; he communicated with them relative to and made inquiries concerning the cartridges; he inquired locally--Los Angeles Police Department, Captain Hoye and Sergeant Ryan, and Superintendent Edgar, Beverly Hills Post Office--concerning the cartridges he contemplated selling; and he did not knowingly sell or offer for sale or possess a...