People v. Bray

• Decision Date: 27 October 1975
• Docket Number: Cr. 6968
• Citation: 52 Cal.App.3d 494,124 Cal.Rptr. 913
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James Eugene BRAY, Defendant and Appellant.

Page 913

124 Cal.Rptr. 913

52 Cal.App.3d 494

The PEOPLE of the State of California, Plaintiff and Respondent, v. James Eugene BRAY, Defendant and Appellant.

Cr. 6968.

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

Oct. 27, 1975.

As Modified on Denial of Rehearing Nov. 26, 1975.

Hearing Denied Dec. 24, 1975.

Appellate Defenders, Inc., by Harold F. Tyvoll and Michael Lloyd, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Harley D. Mayfield and Rudolf Corona, Jr., Deputy Attys. Gen., for plaintiff and respondent.

GERALD BROWN, Presiding Justice.

James Eugene Bray appeals the judgment following his jury conviction on two counts of being a felon in possession of a concealable firearm (Pen.Code § 12021). At sentencing, the offenses were adjudicated as misdemeanors and Bray was placed on probation for three years.

Bray's meritorious contention is the trial court should have instructed the jury that ignorance or mistake of fact is a defense to the crime. ¹

In 1969 Bray pled guilty in Kansas to being an accessory after the fact (Kansas Statutes Annotated 21--106). At sentencing, the Kansas prosecutor recommended Bray be granted probation because he had no previous criminal record, he had been unwilling to participate in the crime but had gotten involved by driving a friend away from the scene and he had cooperated fully with the district attorney's office. Bray was placed on two years summary probation which he successfully completed before moving to California in 1971. While in California Bray first worked at Convair Aircraft and later was employed by the County of San Diego in the Department of Public Health. Near the end of 1973 he transferred to the district attorney's office.

In January 1972, Bray filled out an application to vote in the State of California. He discussed the problems he had had in Kansas with the Deputy of the Registrar of Voters and asked if he would be allowed to vote. The Deputy could not answer the question and suggested he say on the registration form he had been convicted of a felony and fill out a supplementary explanatory form to find out if he, in fact, had committed a felony. This Bray did; he was allowed to vote.

In early July of 1973, Bray applied for a part-time job as a guard with ADT Sterling Security Company. On the application he answered that he had been arrested or charged with a crime but had not been convicted of a felony. At the bottom of the page Bray explained the circumstances surrounding his arrest and period of probation. In September he received a notice from the Bureau of Collection and Investigative Services that he had been registered as a guard or patrolman.

Later in July of 1973 Bray bought a .38 caliber revolver from a pawn shop, Western Jewelry and Loan Company, to use in guard assignments requiring an armed patrolman. On one of the required forms he said he had not been convicted of a felony; on another he said he had not been convicted of a crime with a punishment of more than one year. After the statutory five-day waiting period, the gun was delivered to him.

On September 14, 1973 Bray filled out an application for a job as a contract compliance investigator. In response to the question asking whether he had been convicted of a felony or misdemeanor, Bray answered with a '?'. He again explained the circumstances surrounding his arrest and the sentence he received.

On November 16, 1973 and April 12, 1974 Bray filled out job applications for positions as an audio-visual technician and as an eligibility worker I. In each instance he answered that he had been convicted of a 'felony or misdeameanor'; in each instance he explained his Kansas arrest and sentence.

In July of 1974, two investigators from the district attorney's office conducted a search with a warrant of Bray's house and car. Bray voluntarily led the investigators to a closet where he kept the .38 and a .22 pistol.

In order to gain a conviction under section 12021, the prosecutor must prove: (1) conviction of a felony and (1) ownership, possession, custody or control of a firearm capable of being concealed on the person (People v. Neese, 272 Cal.App.2d 235, 245, 77 Cal.Rptr. 314). There was no question here that Bray had been in possession of a concealable firearm; there was no question he had been convicted of the crime, 'accessory after the fact' in Kansas. Bray says there must be proof he knew he was a felon. Or, in the alternative, he says mistake of fact is a defense and the court erred in denying this requested instruction.

It appears to be a question of first impression whether Penal Code section 12021 requires proof of the defendant's knowledge of his or her felony status, and whether such a prosecution may be defended by showing the defendant lacked knowledge he was a felon. The prevailing trend of decisions is to avoid constructions of penal statutes which would impose strict liability (see People v. Hernandez, 61 Cal.2d 529, 39 Cal.Rptr. 361, 393 P.2d 673 (statutory rape); People v. Vogel, 46 Cal.2d 798, 299 P.2d 850 (bigamy); People v. Winston, 46 Cal.2d 151, 293 P.2d 40 (marijuana possession); People v. Stuart, 47 Cal.2d 167, 302 P.2d 5 (pharmacist misfilling prescriptions)). The Attorney General agrees the statute should not be one of strict liability but then says it is not necessary for the People to prove the defendant had knowledge.

In considering the role of knowledge, whether the defendant knew he had committed an offense is irrelevant (People v. Autterson, 261 Cal.App.2d 627, 632, 68 Cal.Rptr. 113; People v. Daniels, 118 Cal.App.2d 340, 343, 257 P.2d 1038). The question here is whether the defendant must know of the existence of those facts which bring him within the statute's proscription. Even though section 12021 does not explicitly require knowledge, the defendant must know he has possession of a concealable weapon (People v. Burch, 196 Cal.App.2d 754, 771, 17 Cal.Rptr. 102). In addition, as to whether a defendant must know he is an alien under section 12021, this court, in dictum, has said:

'Knowledge that one is in the State of California might conceivably be relevant in the case of a person who unwittingly had overstepped the boundary of a neighboring state, who might have been carried into the state against his will, or as the result of mistake in taking some vehicle of public transportation.

'In the present case, defendant knew he was no longer in Mexico.' (People v. Mendoza, 251 Cal.App.2d 835, 843, 60 Cal.Rptr. 5, 10.)

Likewise, knowlege that one is a felon...