Taylor

Certified for Partial Publication. [*]

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In the unpublished parts of our opinion, we reject defendant's remaining claims of error.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…

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In the unpublished parts of our opinion, we reject defendant’s remaining claims of error.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…

I respectfully dissent from part VI of the opinion.

I part company with the analysis of the majority in two respects. First, I accord greater weight to the stare decisis effect of several appellate court decisions that have held that the possession of weapons listed in Penal Code section 12020, subdivision (a)(1) is a strict liability offense, particularly in light of the Legislature’s failure to amend the statute to clarify the required mens rea. Were we writing on a clean slate, I would be more inclined to find a mens rea requirement in Penal Code section 12020, subdivision (a)(1). (See People v. Westlund (2001) 87 Cal.App.4th 652 [ 104 Cal.Rptr.2d 712 ] [violation of Pen. Code, § 12520, possession of a silencer, requires knowledge of the nature of the silencer].) But here we are faced with abundant case law holding Penal Code section 12020, subdivision (a)(1) has no knowledge requirement.

Second, I believe the factors set forth in In re Jorge M. (2000) 23 Cal.4th 866 [ 98 Cal.Rptr.2d 466 , 4 P.3d 297 ] (Jorge M.) must be applied to all the weapons listed in subdivision (a)(1) of Penal Code section 12020 as a group, rather than to a cane sword individually. The mens rea…