People v. Rubalcava

MOSK, J

I concur in the result.

A crime generally comprises elements of mental state and also conduct or consequences or both.

In Penal Code section 12020 (section 12020) declares it a crime, as either a felony or a misdemeanor, for “[a]ny person” to “[c]arr[y] concealed upon his or her person any dirk or dagger.” (Id., subd. (a)(4).) It defines a “dirk” or “dagger” to mean any “instrument,” including a “knife,” “that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death.” (Id., subd. (c)(24).)

I agree with the majority in their resolution of the issue that is crucial to review: Section 12020 does not comprise among its elements any mental state entailing intent to use the instrument in question as a stabbing weapon. Its language excludes such an element. Its legislative history confirms the fact.

Were I to proceed further and attempt to determine what mental state, if any, section 12020 comprises among its elements, I would commence by turning my attention to first principles.

“In every crime,” since the very establishment of our polity, there has had to “exist” a “union” or “joint operation” of “act” and “intent” or “criminal *335 negligence.” So provided section 1 of the Act Concerning Crimes and Punishments of 1850. (Stats. 1850, ch. 99, § 1, p. 229.) So provides Penal Code section 20 (section 20), its successor, which was enacted with the code in 1872 and has never been amended.

By providing as it does, Penal Code section 20 requires a mental state (see People v. Vogel (1956) 46 Cal.2d 798, 801, fn. 2 [ 299 P.2d 850 ]) along with conduct and/or consequences. More specifically, it requires a mental state whose culpability amounts at least to “criminal negligence.” (See People v. Sargent (1999) 19 Cal.4th 1206, 1215 [ 81 Cal.Rptr.2d 835 , 970 P.2d 409 ]; 1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Elements of Crime, § 113, p. 133.) In current terminology, “criminal negligence” entails recklessness. (E.g., People v. Penny (1955) 44 Cal.2d 861, 879 [ 285 P.2d 926 ]; People v. Sargent, supra, 19 Cal.4th at p. 1215 [following Penny].)

Section 20’s requirement of a mental state along with conduct and/or consequences is general. (See People v. Stuart (1956) 47 Cal.2d 167, 171 [ 302 P.2d 5 , 55 A.L.R.2d 705 ]; see also People v. Hernandez (1964) 61 Cal.2d 529, 532-533 [ 39 Cal.Rptr. 361 , 393 P.2d 673 , 8 A.L.R.3d 1092 ].) But it is not inexorable. (See People v. Stuart, supra, 47 Cal.2d at p. 171 ; see also People v. Hernandez, supra, 61 Cal.2d at pp. 532-533.) A crime can dispense with a mental state altogether. (See People v. Simon (1995) 9 Cal.4th 493, 521 [ 37 Cal.Rptr.2d 278 , 886 P.2d 1271 ].) Thus it is with a so-called strict liability offense—whose “purpose” is generally “to protect public health and safety” and whose “penalt[y]” is generally “relatively light.” {Ibid.) But, if a crime does not dispense with a mental state, section 20 operates, as it were, by default. (See People v. Stuart, supra, 47 Cal.2d at p. 171 .) In other words, if a crime gives no indication whether it requires a mental state, section 20 effectively requires one. And, if a crime gives no indication what mental state it requires, section 20 effectively requires “criminal negligence” in the sense of recklessness.

I incline toward the view that section 20 does not operate by default with respect to section 12020. As indicated, section 12020 proscribes an actor’s carrying of any concealed instrument that is capable of inflicting great bodily injury or death. I tend to believe, as do the majority, that section 12020 requires a mental state of the actor. And I tend to believe, as do the majority, that the mental state that section 12020 requires involves at least knowledge of the existence and nature of the instrument in question. My reasons are these. The evil that section 12020 is designed to prevent is the actor’s carrying of any instrument that is capable of inflicting great bodily injury or death and, ultimately, his actual infliction thereof. For such harm to eventuate, the actor must obviously carry an instrument of the kind described. Otherwise, he could not inflict harm of the degree indicated, being *336 without the means necessary. But, in addition, he must apparently know of the instrument’s existence and nature. Otherwise, he could similarly not inflict harm of the degree indicated, being without awareness of the means necessary.

In any event, were I to attempt to determine section 12020’s mental element, I would altogether avoid any invocation of “general intent” and “specific intent.” 1 “For such notions do not assist in performing the task at hand, which is to explicate” section 12020. (.People v. Sargent, supra, 19 Cal.4th at pp. 1228-1229 (cone. opn. of Mosk, J.).) “ ‘General intent’ and ‘specific intent’ ‘evolved as labels to identify’ particular offenses, with ‘specific intent’ ‘admitting ... the defense of voluntary intoxication’ and ‘general intent’ not doing so. [Citations.] ‘General intent’ has usually been affixed if the mental element of an offense entails only an intent to engage in certain proscribed conduct. [Citation.] In contrast, ‘specific intent’ has usually been affixed if the mental element of an offense entails an intent to engage in certain proscribed conduct for the purpose of bringing about, or allowing, a certain proscribed result. [Citation.] ‘General intent’ and ‘specific intent’ have shown themselves to be ‘notoriously difficult ... to define and apply.’ [Citations.] For this reason, ‘they have proved to be mischievous.’ ” (Id. at p. 1228.)

Because the capability of an instrument to inflict great bodily injury or death does not depend on its intended use by the actor, I agree with the majority that the superior court did not err when it failed to instruct the jury sua sponte that it did, and I further agree that the Court of Appeal in turn did not err when it refused to find the superior court’s failure erroneous.

Therefore, I concur in the result.

Even though legislative staff have not done so. (See maj. opn., ante, at pp. 330-331.)