Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 62-78964B
THE COURT:It is ordered that the opinion filed herein on May 18, 2011, be modified as follows:
1. On page 8,
(a) delete the first full paragraph in its entirety, beginning with “To be guilty of possessing a prohibited assault weapon, ” and replace it with the following new paragraph:
The only scienter requirement essential to proof of possession or transport of illegal weapons under the Roberti-Roos Assault Weapons Control Act of 1989 (ACWA) (§§ 12275-12290), is that the defendant knew or reasonably should have known the characteristics of the weapons that bring them within the definition of assault weapons set forth in the ACWA. Evidence that tends to satisfy this scienter requirement includes the fact that the defendant had a reasonable opportunity to inspect the weapons and discover their illegal characteristics. (In re Jorge M. (2000) 23 Cal.4th 866, 869-870 (Jorge M.).)
(b) delete the last sentence of the second full paragraph, beginning with “Finally, when defendant was arrested, ” and replace it with the following sentence:
Finally, when Guerra was arrested, he had an unregistered, fully loaded, semiautomatic firearm in his possession; and a phony diplomat identification badge similar to Goodspeed’s was later found in defendant’s possession at the county jail.
2. On page 12, in the second full paragraph, delete the second sentence entirely, beginning with “However, given the gravity” and replace it with the following sentence:
However, given the gravity of the public safety threat addressed by the ACWA, the need for effective law enforcement and the potential difficulty of routinely proving the defendant’s actual knowledge, Jorge M. held that the ACWA does not require actual knowledge of the assault weapon’s illegal characteristics.
3. On page 13, in the first full paragraph,
(a) delete the first two sentences entirely, beginning with “Thus, the only scienter requirement essential to” through the citation that reads “(Jorge M., supra, 23 Cal.4th at pp. 869-870.)”; and
(b) delete the third sentence, which reads, “The evidence here undoubtedly satisfied that requirement.” and insert the following sentence in its place, which now begins the first full paragraph:
The evidence here undoubtedly satisfied the scienter requirement, i.e., that defendant knew or reasonably should have known the characteristics of the weapons in question that made them illegal assault weapons.
so that the first full paragraph on page 13 now reads:
The evidence here undoubtedly satisfied the scienter requirement, i.e., that defendant knew or reasonably should have known the characteristics of the weapons in question that made them illegal assault weapons. Defendant was seen in Goodspeed’s company several times during the gun show; he participated with him in the purchase of the weapons; and he helped him load them into defendant’s vehicle. DOJ agents also observed defendant in close proximity when Goodspeed inspected and manipulated assault firearms. Finally, there was circumstantial evidence the two men tried out the weapons at a remote location before bringing them into California. We conclude the record contains abundant evidence from which a jury could reasonably conclude that defendant had both “unhindered possession” and an ample opportunity to discover the illegal nature of the weapons he helped transport.
These modifications do not effect a change in the appellate judgment.
With the above modifications, the petition for rehearing is denied.
RAYE, P. J. HULL, J. BUTZ, J.