People v. Jurado

• Decision Date: 31 May 1972
• Docket Number: Cr. 20930
• Citation: 25 Cal.App.3d 1027,102 Cal.Rptr. 498
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ricardo JURADO, Defendant and Appellant.

Page 498

102 Cal.Rptr. 498

25 Cal.App.3d 1027

The PEOPLE, Plaintiff and Respondent, v. Ricardo JURADO, Defendant and Appellant.

Cr. 20930.

Court of Appeal, Second District, Division 4, California.

May 31, 1972.

Clifford Douglas, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., James H. Kline and Douglas B. Noble, Deputy Attys. Gen., for plaintiff and respondent.

FILES, Presiding Justice.

Defendant was charged by information in count I with burglary (Pen.Code, § 459) and in count II with carrying a concealed weapon (Pen.Code, § 12025), a misdemeanor. It was further alleged in count I that he was armed with a deadly weapon at the time of the commission of the offense. A jury found defendant guilty on counts I and II, and fixed the degree of burglary at first degree. Defendant was then sentenced to state prison for the term prescribed by law on count I, and to 6 months in the county jail on count II, to run concurrently. The judgment recited that the armed allegation was limited to Penal Code section 1203, and that Penal Code sections 3024, 12022 and 12022.5 were inapplicable. Defendant is appealing from that judgment.

A brief reference to the testimony will illuminate the issues to be considered. At about 1:30 a.m. on February 12, 1971, El Monte city police officers Curnow and Weldon went to an automobile bodyshop in response to a silent alarm call. The premises consisted of a building and a yard enclosed by a chain link fence.

They heard a loud clanking sound from inside the building, like a metal tool dropping onto cement, and observed that a metal door had been bent upward and out about one foot from its frame.

Officer Weldon observed defendant standing flat up against the building, facing it, between the building and the fence. Defendant then went into a crouch position with his knees up against his chest and his hands up in front of him.

Weldon ordered defendant to walk toward him and place his hands on the fence that separated them. Defendant stood up, faced the officer, took several steps backward, grabbed the front of his jacket with his left hand and reached into his pocket with his right hand. As he was doing this, officer Weldon fired one shot at him. Defendant removed his right hand from his jacket and dropped an object. Defendant came forward and submitted to arrest. The officer picked up the object, which was a loaded .22 caliber revolver.

Officer Curnow arrested two men who had been inside the building. As these men were brought out to where defendant was being held, defendant conversed with them in Spanish.

Officer Weldon was of the opinion that defendant was sober. His breath lacked any odor of alcohol. A breathalizer machine was available at the police station for testing the breath, but no such test was given defendant.

Defendant testified that he had been drinking since 10:00 o'clock of the morning preceding the burglary, that he was drunk and crawled under the fence at the bodyshop and crawled under the fence at the body-shop testified he remembered nothing after that until an officer was 'hollering' at him. He denied having put his hand in his pocket, and denied having had any gun in his possession.

The evidence is unquestionably sufficient to sustain the conviction on each count. Defendant's presence inside the chain link fence, his conduct when discovered, his conversations with those who had been inside the building, and his possession of a loaded revolver all tend to support the inference that he was aiding a burglary.

Defendant's first contention is that the trial court erred in failing to instruct the jury that knowledge of the concealed firearm was an element of the alleged violation of Penal Code section 12025. That section provides that except as otherwise provided, 'any person who carries concealed upon his person or concealed within any vehicle which is under his control or direction any pistol, revolver, or other firearm capable of being concealed upon the person' is guilty of a misdemeanor. Courts have assumed that, under the various statutes making criminal the possession of a weapon, knowledge of the presence and character of the object is an element of the offense. (See Galvan v. Superior Court (1969) 70 Cal.2d 851, 868, 76 Cal.Rptr. 642, 452 P.2d 930; People v. Gant (1968) 264 Cal.App.2d 420, 424, 70 Cal.Rptr. 801; People v. Burnett (1967) 251 Cal.App.2d 651, 657, 59 Cal.Rptr. 652; People v. Mendoza (1967) 251 Cal.App.2d 835, 842, 60 Cal.Rptr. 5; People v. Davis (1958) 157 Cal.App.2d 33, 36, 320 P.2d 88; People v. Pearson (1957) 150 Cal.App.2d 811, 818, 311 P.2d 142; People v. Gonzales (1925) 72 Cal.App. 626, 631, 237 P. 812.) None of those cases except Gonzales discusses the necessity of an instruction calling the jury's attention to this aspect of the case, and Gonzales did not decide it.

In the case at bench the court did instruct the jury that for the crime of possessing, there must be criminal intent, and 'Where a person intentionally does that which the law declares to be a crime, he is acting with criminal intent. . . .' This instruction would indicate to a lay juror that the People were required to prove that the defendant knew he had the object. In the context of this case the absence of an instruction on the subject of knowledge could not have prejudiced defendant.

The conflict in the evidence here focuses on the question of possession, not knowledge. The officer testified he saw defendant pull an object from his clothing and drop it on the ground. The object was a loaded revolver. Defendant denied he had reached into his pocket and he denied that he had carried the gun. If defendant had done what the officer reported, there could be no doubt that defendant had known he was carrying a concealed weapon. The evidence in this case offers no rational basis for finding that defendant possessed the pistol without knowledge of its presence and nature. (Cf. People v. Bowens (1964) 229 Cal.App.2d 590, 599, 40 Cal.Rptr. 435, a narcotics possession case, where failure to instruct on knowledge was harmless.)

Defendant's second contention is that the trial court erred in failing to instruct, sua sponte, 'with regard to the law of diminished capacity.' The argument is based upon the testimony produced by the defendant that he was drunk. The trial court instructed the jury that if the evidence showed the defendant was intoxicated, it should consider his state of intoxication in deciding if he had the specific intent to steal which was an element of the offense of burglary. But there was no such instruction given with respect to the concealed weapon charge.

The only case which has come to our attention concerning the effect of intoxication upon a person charged with a possession offense is People v. Foster (1971) 19 Cal.App.3d 649, 653--656, 97 Cal.Rptr. 94. There the defendant was charged with possession of heroin. The opinion of the Court of Appeal states that since knowledge was an element of the offense charged, the trial court should have, on its own motion, instructed the jury to consider the fact that the accused was intoxicated; but the court held that the absence of such an instruction was not prejudicial in that case.

In the case at bench, we deal with a crime different from the narcotics offenses in some significant respects. The carrying of concealed firearms is prohibited as a means of preventing physical harm to persons other than the offender. It is an activity which can readily be committed by an intoxicated person, and with even greater hazard to public safety. Only minimal mental capacity is required for a person to be aware that he is carrying a firearm concealed upon his person. For this particular offense we find guidance in the analysis contained in People v. Hood (1969) 1 Cal.3d 444, 82 Cal.Rptr. 618, 462 P.2d 370, and People v. Rocha (1971) 3 Cal.3d 893, 92 Cal.Rptr. 172, 479 P.2d 372, which held that the trial court should not instruct the jury to consider evidence of defendant's intoxication in determining whether he committed assault with a deadly weapon on a peace officer or any of the lesser assaults included therein. In the Hood opinion the court said (1 Cal.3d at p. 458, 82 Cal.Rptr. at p. 627, 462 P.2d at p. 379):

'Alcohol apparently has less effect on the ability to engage in simple goal-directed behavior, although it may impair the efficiency of that behavior. In other words, a drunk man is capable of forming an intent to do something simple, such as strike another, unless he is so drunk that he has reached the stage of unconsciousness. What he is not as capable as a sober man of doing is exercising judgment about the social consequences of his acts or controlling his impulses toward anti-social acts. He is more likely to act rashly and impulsively and to be susceptible to passion and anger. It would therefore be anomalous to allow evidence of intoxication...