THE PEOPLE, Plaintiff and Respondent, v. ERNESTO ARNOLDO RUBALCAVA, Defendant and Appellant, 23 Cal. 4th 322

Opinion BROWN, J. In this case we consider whether the unlawful carrying of a concealed dirk or dagger is a specific intent crime that imposes a sua sponte duty on trial courts to instruct with CALJIC No. 12.42. We conclude the offense does not have a specific intent requirement. Thus, courts have no duty to instruct the jury with CALJIC No. 12.42. Factual and Procedural Background On or about July 29, 1997, Officer Roland Elkins arrested defendant Ernesto Amoldo Rubalcava on an outstanding warrant. During the arrest, Officer Elkins discovered a knife on Rubalcava’s person.

The knife had a blade roughly three inches long and a handle approximately three and one-eighth inches long. The tip of the blade was chipped. One side of the blade was “totally blunt,” and the other side was dull. The blade, however, showed signs of having been sharpened at one time. Based on his possession of the knife, Rubalcava was charged by information with one count of “willfully and unlawfully carrying concealed upon his/her person a dirk and dagger” in violation of

section 12020, subdivision (

a) of the Penal Code. The information further alleged that Rubalcava committed the offense (1) while he was out on bail on another felony offense (§ 12022.1), and (2) within five years after his release from prison on another felony conviction (§ 667.5, subd. (b)). At trial, Officer Elkins testified that, upon arresting Rubalcava, he asked him whether he had any “weapons on him.” According to Officer Elkins, Rubalcava replied that “he had a knife” and motioned with his head toward his right hip.

Officer Elkins then stated he retrieved a knife from Rubalcava’s right coin pocket—a knife he could not see before because Rubalcava wore a long white shirt that hung down to his thighs and covered the pocket and the handle of the knife protruding from the pocket. Officer Elkins also testified that Rubalcava carried a white plastic bag containing a pouch for holding sunglasses, a pair of wirecutters, two screwdrivers, a punch, a crescent wrench, a pair of pliers, some “bondo” tools and several other items. Rubalcava testified on his own behalf and contradicted Officer Elkins’s testimony on several fronts.

He first stated he worked in an automotive body repair shop and was bringing tools to a friend after his doctor’s appointment and only brought the knife because he kept it with his tools. Rubalcava then testified that, on the day of his arrest, he placed the knife and tools in the sunglasses pouch and had the pouch in his pocket and clipped to his belt. He further stated that he tucked his shirt in and wore the pouch with the knife in plain view because he did not want to be arrested for carrying a concealed weapon. According to Rubalcava, the knife was also a letter opener—and not a weapon.

Finally, Rubalcava testified that, upon his arrest, an officer asked him whether he had any sharp objects or needles and that he only told the officer he had some tools and putty knives. In rebuttal, Officer Curtis Hale testified that he saw Officer Elkins lift Rubalcava’s loose shirt and retrieve a knife from his waistband area. He also claimed he could not see the knife when he approached Rubalcava. Based on his extensive training and experience with homemade weapons, Officer Hale opined that the knife had been sharpened at some point and could be used as a stabbing weapon.

Officer Elkins also testified in rebuttal and reiterated his prior testimony. At the close of testimony, the trial court instructed the jury on the elements of the crime of carrying a concealed dirk or dagger by reading modified versions of CALJIC Nos. 12.41 and 3.30. These instructions defined the offense as a “general intent” crime and stated that a defendant violates

section 12020, subdivision (

a) if he “carried a dirk or dagger” “substantially concealed upon his person” and “knew he was carrying the weapon.” Rubalcava did not object to these instructions, and did not request CALJIC No. 12.42—which stated that the jury may consider “intended use” when determining whether the instrument is a dirk of dagger—or any other comparable The jury found Rubalcava guilty of carrying a concealed dirk or dagger. The trial court later sentenced Rubalcava to three years and eight months in prison to run consecutive to his four-year sentence in another case. The Court of Appeal affirmed.

The court rejected, among other things, Rubalcava’s contention that the trial court erred by failing to instruct the jury sua sponte with CALJIC No. 12.42 because the intent to use the concealed instrument as a stabbing weapon is an element of the offense. In doing so, the court declined to follow People v. Aubrey (1999) 70 Cal.App.4th 1088 [83 Cal.Rptr.2d 209] (Aubrey), and People v. Oskins (1999) 69 Cal.App.4th 126 [81 Cal.Rptr.2d 383] (Oskins).

We granted review to determine whether the intent to use the concealed instrument as a stabbing weapon is an element of the crime of carrying a concealed dirk or dagger in violation of

section 12020, thereby requiring the trial court to instruct the jury sua sponte with CALJIC No. 12.42. Discussion At the time of Rubalcava’s arrest,

section 12020, subdivision (

a) stated in relevant part: “Any person in this state . . . who carries concealed upon his or her person any dirk or dagger is punishable by imprisonment in a county jail not exceeding one year or in the state prison.” (Stats. 1995, ch. 128, § 2.)

Section 12020, subdivision (c)(24) defined a “ ‘dirk’ ” or “ ‘dagger’ ” as “a knife or other instrument with or without a handguard that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death.” Relying on Aubrey and Oskins, Rubalcava contends that

section 12020 makes the intent to use the concealed instrument as a stabbing weapon an element of the crime. Thus, the trial court erred by failing to instruct the jury with CALJIC No. 12.42 even though he did not request it. We disagree. When interpreting a statute, “we turn first to the language of the statute, giving the words their ordinary meaning.” (People v. Birkett (1999) 21 Cal.4th 226, 231 [87 Cal.Rptr.2d 205, 980 P.2d 912].) If the language permits more than one reasonable

interpretation, then the court looks “to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.” (People v. Woodhead (1987) 43 Cal.3d 1002, 1008 [239 Cal.Rptr. 656, 741 P.2d 154].) In the end, “[w]e must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an

interpretation that would lead to absurd consequences.” (People v. Jenkins (1995) 10 Cal.4th 234, 246 [40 Cal.Rptr.2d 903, 893 P.2d 1224].) Here, the relevant language of

section 12020 is unambiguous and establishes that carrying a concealed dirk or dagger does not require an intent to use the concealed instrument as a stabbing weapon. “When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent.

When the definition refers to defendant’s intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.” (People v. Hood (1969) 1 Cal.3d 444, 456-457 [82 Cal.Rptr. 618, 462 P.2d 370].) Subdivision (

a) of

section 12020 describes a single criminal act— carrying a concealed dirk or dagger on the person—and makes no reference to any other act or consequence. Likewise, the definition of dirk or dagger in subdivision (c)(24) of that

section focuses on the characteristics of the concealed instrument without explicitly or implicitly referring to the possessor’s “intent to do a further act or achieve a future consequence.” (Hood, supra, 1 Cal.3d at p. 457.) Accordingly, defendant’s intended use is not an element of the crime, and “no further mental state beyond willing commission of the act proscribed by law” is necessary. (People v. Sargent (1999) 19 Cal.4th 1206, 1215 [81 Cal.Rptr.2d 835, 970 P.2d 409].) The legislative history provides further, albeit unnecessary, confirmation. Until 1994,

section 12020 made it a crime to carry a concealed dirk or dagger without defining the terms “dirk” or “dagger.” (See People v. Mowatt (1997) 56 Cal.App.4th 713, 717 [65 Cal.Rptr.2d 722] (Mowatt).) As a result, courts provided their own definition; “A dagger has been defined as any straight knife to be worn on the person which is capable of inflicting death except what is commonly known as a ‘pocket-knife.’ Dirk and dagger are used synonymously and consist of any straight stabbing weapon, as a dirk, stiletto, etc. [Citation.] They may consist of any weapon fitted primarily for stabbing.

The word dagger is a generic term covering the dirk, stiletto, poniard, etc.” (People v. Ruiz (1928) 88 Cal.App. 502, 504 [263 P. 836]; see also People v. Bain (1971) 5 Cal.3d 839, 850-851 [97 Cal.Rptr. 684, 489 P.2d 564] [applying this definition]; People v. Forrest (1967) 67 Cal.2d 478, 480 [62 Cal.Rptr. 766, 432 P.2d 374] [same].) Application of this judicially derived definition, however, was somewhat inconsistent. For example, various Courts of Appeal split over the relevance of defendant’s intended use of the concealed instrument.

Some courts held that the jury could not consider “the subjective intent of a knife’s possessor when determining whether the concealed instrument was a dirk or dagger.” (People v. Barrios (1992) 7 Cal.App.4th 501, 505 [8 Cal.Rptr.2d 666]; see also People v. Gonzales (1995) 32 Cal.App.4th 229, 233-234 [38 Cal.Rptr.2d 52]; Bills v. Superior Court (1978) 86 Cal.App.3d 855, 862 [150 Cal.Rptr. 582].) Meanwhile, other courts relied on People v.

Grubb (1965) 63 Cal.2d 614 [47 Cal.Rptr. 772, 408 P.2d 100] (Grubb), to reach the opposite conclusion. (See, e.g., In re Victor B. (1994) 24 Cal.App.4th 521, 527 [29 Cal.Rptr.2d 362]; In re Quintus W. (1981) 120 Cal.App.3d 640, 645 [175 Cal.Rptr. 30]; In re Robert L. (1980) 112 Cal.App.3d 401, 404-405 [169 Cal.Rptr. 354]; People v. Ferguson (1970) 7 Cal.App.3d 13, 19-20 [86 Cal.Rptr. 383].) Despite this conflict over the relevance of defendant’s intended use to the dirk or dagger element of the offense, no court construed

section 12020 as a specific intent crime. In fact, Grubb, the primary authority cited to support the relevance of defendant’s subjective intent, expressly rejected such a construction. In Grubb, police officers discovered a broken baseball bat in the defendant’s car. The defendant later told the police he carried the bat for self-defense and had struck people with it before. (Grubb, supra, 63 Cal.2d at pp. 616-617.) A jury convicted defendant of possessing a “billy” in violation of

section 12020. (63 Cal.2d at p. 615.) Although reversing for other reasons, we held that the surrounding circumstances of possession— including defendant’s intended use—were relevant to the issue of whether the bat was a prohibited weapon. (Id. at pp. 621-622 & fn. 9.) We, however, stated that “[t]he prosecution need not show the intent of the possessor to use an instrument in a violent manner.” (Id. at p. 621, fn. 9, italics added.) In 1993, the Legislature attempted to resolve the inconsistencies in the case law by enacting the first statutory definition of dirk or dagger. The 1993 version of

section 12020, subdivision (c)(24), which became effective in 1994, defined “a ‘dirk’ or ‘dagger’ ” as “a knife or other instrument with or without a handguard that is primarily designed, constructed, or altered to be a stabbing instrument designed to inflict great bodily injury or death.” (Stats. 1993, ch. 357, § 1, p. 2155.) By emphasizing the design of the instrument “without implicating the possessor’s intent,” the Legislature adopted “[t]he rationale of the cases holding the possessor’s intent irrelevant in prosecutions for carrying a concealed ‘dirk or dagger.’ ” (Mowatt, supra, 56 Cal.App.4th at p. 721; see also Assem.

Com. on Public Safety, Analysis of Assem. Bill No. 1266 (1993-1994 Reg. Sess.) as amended Mar. 16, 1993, p. 1 [“AB 1266’s definition is . . . consistent with . . . Bills v. Superior Court (1978) 86 Cal.App.3d [855, 861-862 [150 Cal.Rptr. 582]] . . . .”].) Less than two years later, the Legislature changed the definition of “dirk” or “dagger” to the one at issue here. Concerned that “gang members and other[s] who carry lethal knives hidden in their clothing [were] essentially immune from arrest and prosecution” under the 1993 definition (Sen. Rules Com., 3d reading analysis of Assem. Bill No. 1222 (1995-1996 Reg.

Sess.) as amended May 31, 1995, p. 4; see also Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1222 (1995-1996 Reg.

Sess.) as introduced Feb. 23, 1995, p. 2), the Legislature broadened the definition of dirk or dagger by replacing the phrase, “that is primarily designed, constructed, or altered to be a stabbing instrument,” with the phrase, “that is capable of ready use as a stabbing weapon.” (Compare Stats. 1993, ch. 357, § 1, p. 2155, with Stats. 1995, ch. 128, § 2, italics added.) In doing so, the Legislature recognized that the new definition may criminalize the “innocent” carrying of legal instruments such as steak knives, scissors and metal knitting needles, but concluded “there is no need to carry such items concealed in public.” (Sen.

Com. on Crim. Procedure, Analysis of Assem. Bill No. 1222 (1995-1996 Reg. Sess.) as amended May 31, 1995, pp. 3, 5-6.) As a result, the Legislature made “[t]he unlawful concealed carrying of a dirk or dagger in

Section 12020 ... a general intent crime” and expressly stated that “[n]o intent for unlawful use would be required for violations of the prohibition on the concealed possession upon the person of an otherwise lawful dirk or dagger.” {Id. at p. 6, italics added.) Thus, the legislative history is clear and unequivocal: the intent to use the concealed instrument as a stabbing instrument is not an element of the crime of carrying a concealed dirk or dagger. Indeed, the offense has never had such an intent requirement, and we find nothing suggesting an intent by the Legislature to alter this established rule.

Rubalcava cites no statutory language or legislative history to gainsay these unequivocal expressions of legislative intent. Moreover, Aubrey and Oskins—the two primary cases relied upon by Rubalcava—do not mention the legislative history and concede that subdivisions (

a) and (c)(24) of

section 12020, by their terms, do not make defendant’s intended use of the instrument an element of the crime. (See Aubrey, supra, 70 Cal.App.4th at pp. 1101-1102; Oskins, supra, 69 Cal.App.4th at p. 138.) Rubalcava, however, contends that, without such an intent requirement, subdivisions (

a) and (c)(24) would create a strict liability crime and be unconstitutionally vague and overbroad.

Reiterating concerns raised by Aubrey and Oskins, Rubalcava argues that the Legislature could not have intended to make a felon out of “[t]he tailor who places a pair of scissors in his jacket[,] ... the carpenter who puts an awl in his pocket” (Oskins, supra, 69 Cal.App.4th at p. 138), “the auto mechanic who absentmindedly slips a utility knife in his back pocket before going out to lunch[,] ... the shopper who walks out of a kitchen-supply store with a recently purchased steak knife ‘concealed’ in his or her pocket, ... the parent who wraps a sharp pointed knife in a paper towel and places it in his coat to carry into a PTA potluck dinner, or . . . the recreational user who tucks his ‘throwing knives’ into a pocket as he heads home after target practice or a game of mumblety-peg” (Aubrey, supra, 70 Cal.App.4th at p. 1102).

Although the potentially broad reach of

section 12020 in the absence of a specific intent element is troubling, these concerns do not render the statute unconstitutional. As an initial matter, we dispel a misconception fostered by Oskins and repeated by Rubalcava: the absence of a specific intent requirement does not make the carrying of a concealed dirk or dagger a strict liability offense. (See Oskins, supra, 69 Cal.App.4th at pp. 138-139.) Strict liability offenses eliminate the “requirement of mens rea; that is, the requirement of a ‘guilty mind’ with respect to an element of a crime.” (Staples v.

United-States (1994) 511 U.S. 600, 607-608, fn. 3 [114 S.Ct. 1793, 1798, 128 L.Ed.2d 608].) As such, a defendant may be guilty of a strict liability offense even if he does not know “the facts that make his conduct fit the definition of the offense.” (Ibid.) By declining to make defendant’s intended use of the instrument an element of the offense, we do not eliminate the mens rea requirement. Because the dirk or dagger portion of

section 12020 criminalizes “ ‘traditionally lawful conduct,’ ” we construe the statute to contain a “knowledge” element. (People v. Coria (1999) 21 Cal.4th 868, 880-881 [89 Cal.Rptr.2d 650, 985 P.2d 970].) Thus, to commit the offense, a defendant must still have the requisite guilty mind: that is, the defendant must knowingly and intentionally carry concealed upon his or her person an instrument “that is capable of ready use as a stabbing weapon." (§ 12020, subds. (a), (c)(24).) A defendant who does not know that he is carrying the weapon or that the concealed instrument may be used as a stabbing weapon is therefore not guilty of violating

section 12020. With this understanding, we now address Rubalcava’s constitutional challenges. First, his contention that

section 12020, in the absence of a specific intent requirement, is void for vagueness in violation of.due process is meritless. A law is void for vagueness only if it “fails to provide adequate notice to those who must observe its strictures” and “ ‘impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.’ ” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1116 [60 Cal.Rptr.2d 277, 929 P.2d 596], quoting Grayned v.

City of Rockford (1972) 408 U.S. 104, 108-109 [92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222].) Rubalcava identifies no vague terms in the statute that may be open to multiple

interpretations. Instead, he claims the resulting criminalization of “otherwise wholly innocent conduct” would make

section 12020 unconstitutionally vague. {Aubrey, supra, 70 Cal.App.4th at p. 1102.) The mere fact that a statute may criminalize previously legal conduct does not, however, make a statute unconstitutionally vague especially where, as here, the statutory language and legislative history indicate the Legislature intended such a result. (See Pryor v.

Municipal Court (1979) 25 Cal.3d 238, 246 [158 Cal.Rptr. 330, 599 P.2d 636] [When determining whether a statute is “sufficiently specific to meet constitutional standards ...[,] we look first to the language of the statute, then to its legislative history, and finally to California decisions construing the statutory language.”].) In any event, we have previously held that

section 12020 is not unconstitutionally vague despite the absence of a specific intent element and see no reason to reconsider this determination. (See Grubb, supra, 63 Cal.2d at p. 619.) Second, Rubalcava’s overbreadth challenge fails, even assuming arguendo that the overbreadth doctrine applies outside the First Amendment context. (See Tobe v.

City of Santa Ana, supra, 9 Cal.4th at pp. 1095-1096, fn. 15.) A statute is only overbroad if it “prohibits a ' “substantial amount of constitutionally protected conduct.” ’ ” (Id at p. 1095.) Rubalcava asserts that the omission of a specific intent requirement would result in the substantial infringement of rights guaranteed by the First and Fourth Amendments. In support, he cites general examples of the statute’s overbreadth. He, however, describes no instances where the statute actually infringes on constitutionally protected conduct, and we can think of none. Even though

section 12020 may seem overbroad as a matter of common sense, we will not find it unconstitutionally overbroad without some concrete impairment of constitutionally protected conduct. Although we conclude that

section 12020 is not unconstitutionally vague or overbroad, we echo the concerns over the breadth of the statute raised by Rubalcava. As written,

section 12020, subdivisions (

a) and (c)(24) may criminalize seemingly innocent conduct. Consequently, the statute may invite arbitrary and discriminatory enforcement not due to any vagueness in the statutory language but due to the wide range of otherwise innocent conduct it proscribes. Indeed, the Legislature suggested this very possibility. (See Sen. Com. on Crim. Procedure, Analysis of Assem. Bill No. 1222 (1995-1996 Reg.

Sess.) as amended May 31, 1995, p. 6 [“Proponents of this bill would possibly suggest that everyone—peace officers, prosecutors, judges, and juries—knows what is considered ‘bad’ carrying of a concealed dirk or dagger, cite Grubb (supra), and argue that is the protection against possibly overzealous use of the Penal Code proscriptions on such conduct”].) While the wisdom of this solution to the gang problem may certainly be questioned (cf.

In re Jasper (1973) 30 Cal.App.3d 985, 989 [106 Cal.Rptr. 754] [a person who innocently carries a knife into a courtroom should not be held in contempt]), “[t]he role of the judiciary is not to rewrite legislation to satisfy the court’s, rather than the Legislature’s, sense of balance and order.” (People v. Carter (1997) 58 Cal.App.4th 128, 134 [67 Cal.Rptr.2d 845].) We must therefore leave it to the Legislature to reconsider the wisdom of its statutory enactments.

Because a defendant may be guilty of carrying a concealed dirk or dagger without intending to use the instrument as a stabbing weapon, the trial court did not err by failing to instruct with CALJIC No. 12.42. Trial courts only have a sua sponte duty to instruct on “the general principles of law relevant to and governing the case.” (People v.

Cummings (1993) 4 Cal.4th 1233, 1311 [18 Cal.Rptr.2d 796, 850 P.2d 1].) “That obligation includes instructions on all of the elements of a charged offense” (ibid.), and on recognized “defenses . . . and on the relationship of these defenses to the elements of the charged offense.” (People v. Sedeno (1974) 10 Cal.3d 703, 716 [112 Cal.Rptr. 1, 518 P.2d 913], overruled on other grounds by People v. Breverman (1998) 19 Cal.4th 142, 178, fn. 26 [77 Cal.Rptr.2d 870, 960 P.2d 1094].) In this case, defendant’s intended use of the instrument is neither an element of the offense nor a defense.

Accordingly, we hold that the trial court had no duty to give CALJIC No. 12.42. Disposition For the foregoing reasons, we affirm the judgment of the Court of Appeal. George, C. J., Kennard, J., Baxter, J., Werdegar, J., and Chin, J., concurred. All further statutory references are to the Penal Code. The information also charged Rubalcava with willfully and unlawfully failing to appear. (§ 1320.5.) At trial, the jury deadlocked on this count, and the trial court declared a mistrial as to that count. The trial court provided the jury with the following instructions regarding the elements of a

section 12020, subdivision (

a) violation: “Defendant is accused in count one of having violated

section 12020, subdivision (

a) of the Penal Code, a crime. “Every person who carries concealed upon his person any dirk or dagger is guilty of a violation of Penal Code

section 12020, subdivision (a), a crime. “The words ‘dirk’ and ‘dagger’ are used synonymously and both mean a knife or other instrument with or without a handguard that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death. “You must determine whether the weapon introduced in evidence in this case is a dirk or dagger within the foregoing definition. “ ‘Great bodily injury’ refers to significant or substantial bodily injury or damage; it does not refer to trivial or insignificant injury or moderate harm. “In order to prove this crime, each of the following three elements must be proved: “One, a person carried a dirk or dagger; “Two, the weapon was substantially concealed upon his person; and “Three, the person knew he was carrying the weapon. “A knife carried in a sheath, which is worn openly suspended from the waist of the wearer, is not a concealed weapon.” “In the crime charged in count one, namely, carrying a concealed dirk or dagger, there must exist a union or joint operation of act or conduct and general criminal intent.

General intent does not require an intent to violate the law.

When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent, even though he may not know that his act or conduct is unlawful.” At the time of trial, CALJIC No. 12.42 stated: “In determining if the instrument or object in this case was a weapon of the kind within the law as stated, you may consider the circumstances attending any possession of the instrument or object by the defendant, such as the time and place of its possession; the destination of the possessor; any alteration of the object from its standard form; and evidence, if any, indicating its intended use by the possessor for a dangerous rather than a harmless purpose.” In 1997, the Legislature revised

section 12020 once again. The new version did not alter the relevant language of the 1995 version of subdivisions (

a) and (c)(24). Instead, the Legislature merely added the following sentence to subdivision (c)(24): “A nonlocking folding knife, a folding knife that is not prohibited by

Section 653k, or a pocketknife is capable of ready use as a stabbing weapon that may inflict great bodily injury or death only if the blade of the knife is exposed and locked into position.” (Stats. 1997, ch. 158, § 1.) For example, a person could slip a knife into a defendant’s pocket without his knowledge or give a defendant a fixed-blade knife wrapped in a paper towel, but tell the defendant the knife has a folding blade that cannot lock. In these cases, the defendant would lack the necessary mens rea.

We reject the People’s contention that Rubalcava lacks standing to assert this challenge because he cannot “attack a statute on grounds that are not shown to be applicable to himself.” (In re Cregler (1961) 56 Cal.2d 308, 313 [14 Cal.Rptr. 289, 363 P.2d 305].) At trial, Rubalcava claimed he used the knife as a letter opener and did not intend to use it as a weapon. The physical characteristics of the blade supported his claim. Because Rubalcava arguably falls within the class of “innocent” carriers who are “not supposed to be” covered by the statute, he has standing to raise the vagueness challenge. (See Tobe v.

City of Santa Ana (1995) 9 Cal.4th 1069, 1095 [40 CaI.Rptr.2d 402, 892 P.2d 1145].) We disapprove of People v. Aubrey, supra, 70 Cal.App.4th at page 1088, and People v. Oskins, supra, 69 Cal.App.4th at page 126, to the extent they conflict with our decision here.