THE PEOPLE, Plaintiff and Respondent, v. NEVA B. SNYDER, Defendant and Appellant, 32 Cal. 3d 590

Opinion RICHARDSON, J. Defendant Neva Snyder appeals from a judgment convicting her of possession of a concealable firearm by a convicted felon (Pen. Code, § 12021), based upon her 1973 conviction for sale of marijuana, a felony (former Health & Saf. Code, § 11531). Defendant contends that the trial court erred in excluding evidence of her mistaken belief that her prior conviction was only a misdemeanor. We will conclude that defendant’s asserted mistake regarding her legal status as a convicted felon did not constitute a defense to the firearm possession charge. Accordingly, we will affirm the judgment.

At trial, defendant offered to prove the following facts supporting her theory of mistake: The marijuana possession charge resulted from a plea bargain not involving a jail or prison sentence. At the time the bargain was struck, defendant’s attorney advised her that she was pleading guilty to a misdemeanor. Believing that she was not a felon, defendant thereafter had registered to vote, and had voted. On one prior occasion, police officers found a gun in her home but, after determining that it was registered to her husband, the officers filed no charges against defendant.

The trial court refused to admit any evidence of defendant’s mistaken belief that her prior conviction was a misdemeanor and that she was not a felon. The court also rejected proposed instructions requiring proof of defendant’s prior knowledge of her felony conviction as an element of the offense charged. Penal Code

section 12021, subdivision (a), provides: “Any person who has been convicted of a felony under the laws of the . . . State of California . . . who owns or has in his possession or under his custody or control any pistol, revolver, or other firearm capable of being concealed upon the person is guilty of a public offense, ...” The elements of the offense proscribed by

section 12021 are conviction of a felony and ownership, possession, custody or control of a firearm capable of being concealed on the person. (People v. Bray (1975) 52 Cal.App.3d 494, 497 [124 Cal.Rptr. 913]; People v. Neese (1969) 272 Cal.App.2d 235, 245 [77 Cal.Rptr. 314]; People v. Nieto (1966) 247 Cal.App.2d 364, 368 [55 Cal.Rptr. 546].) No specific criminal intent is required, and a general intent to commit the proscribed act is sufficient to sustain a conviction. (People v. Neese, supra, at p. 245; People v.

McCullough (1963) 222 Cal.App.2d 712, 718 [35 Cal.Rptr. 591].) With respect to the elements of possession or custody, it has been held that knowledge is an element of the offense. (People v. Burch (1961) 196 Cal.App.2d 754, 770-771 [17 Cal.Rptr. 102]; People v. Gonzales (1925) 72 Cal.App. 626, 630-631 [237 P. 812].) Does

section 12021 also require knowledge of one’s legal status as a convicted felon? No case has so held. Penal Code

section 26 provides that a person is incapable of committing a crime if he acted under a “mistake of fact” which disproves criminal intent. In this regard, the cases have distinguished between mistakes of fact and mistakes of law. As we stated in an early case: “It is an emphatic postulate of both civil and penal law that ignorance of a law is no excuse for a violation thereof. Of course it is based on a fiction, because no man can know all the law, but it is a maxim which the law itself does not permit any one to gainsay ....

The rule rests on public necessity; the welfare of society and the safety of the state depend upon its enforcement. If a person accused of a crime could shield himself behind the defense that he was ignorant of the law which he violated, immunity from punishment would in most cases result.” (People v. O’Brien (1892) 96 Cal. 171, 176 [31 P. 45]; see Brown v. State Department of Health (1978) 86 Cal.App.3d 548, 554-555 [150 Cal.Rptr. 344], and cases cited.) Accordingly, lack of actual knowledge of the provisions of Penal Code

section 12021 is irrelevant; the crucial question is whether the defendant was aware that he was engaging in the conduct proscribed by that section. (People v. Norton (1978) 80 Cal.App.3d Supp. 14, 21 [146 Cal.Rptr. 343]; People v. Howard (1976) 63 Cal.App.3d 249, 256 [133 Cal.Rptr. 689]; People v. Mendoza (1967) 251 Cal.App.2d 835, 843 [60 Cal.Rptr. 5].) In the present case, defendant was presumed to know that it is unlawful for a convicted felon to possess a concealable firearm. (Pen. Code, § 12021.) She was also charged with knowledge that the offense of which she was convicted (former Health & Saf. Code, § 11531) was, as a matter of law, a felony. That

section had prescribed a state prison term of from five years to life, and the express statutory definition of a “felony” is “a crime which is punishable with death or by imprisonment in the state prison.” (Pen. Code, § 17, subd. (a).) Thus, regardless of what she reasonably believed, or what her attorney may have told her, defendant was deemed to know under the law that she was a convicted felon forbidden to possess concealable firearms. Her asserted mistake regarding her correct legal status was a mistake of law, not fact. It does not constitute a defense to

section 12021. None of the California cases relied on by defendant is apposite here. People v. Hernandez (1964) 61 Cal.2d 529 [39 Cal.Rptr. 361, 393 P.2d 673, 8 A.L.R.3d 1092], and People v. Mayberry (1975) 15 Cal.3d 143 [125 Cal.Rptr. 745, 542 P.2d 1337], each involved mistakes of fact, not law. In Hernandez, the mistake concerned the age of the alleged victim of a statutory rape. In Mayberry, defendant erred in assuming that the adult victim of forcible rape consented to his acts. People v.

Vogel (1956) 46 Cal.2d 798 [299 P.2d 850], involved the good faith belief of a defendant charged with bigamy that he is free to remarry.

We were careful to explain that defendant’s mistake was a factual one: “We have concluded that defendant is not guilty of bigamy, if he had a bona fide and reasonable belief that facts existed that left him free to remarry. ” (Id., at p. 801; italics added.) Moreover, Vogel characterized bigamy as a crime which “has been regarded for centuries as . . . involving moral turpitude, . . .” Obviously a bona fide belief that one is free to remarry nullifies the moral opprobrium attached to the charge.

On the other hand, being an ex-felon in possession of a concealable firearm, while illegal, hardly stamps the person charged as a moral leper. His belief that he is not a felon thus does not affect the criminality of his conduct. Our conclusion is confirmed by federal cases interpreting a similar federal statute forbidding possession of a firearm by one convicted of a felony. (18 U.S.C.A. Appen. § 1202(a).) The only element of the federal offense which is not found in "section 12021 of the Penal Code is an effect upon “commerce.” (See United States v.

Bass (1971) 404 U.S. 336, 347-349 [30 L.Ed.2d 488, 496-497, 92 S.Ct. 515].) The federal statute has been uniformly interpreted as requiring only that the defendant was in fact a convicted felon, and not that he actually knew he was a felon. (United States v. Locke (9th Cir. 1976) 542 F.2d 800, 801; United States v. Mathews (9th Cir. 1975) 518 F.2d 1296; United States v.

Crow (9th Cir. 1971) 439 F.2d 1193, 1196.) As stated in Locke, “Because the crimes here charged do not require a specific intent [citation], the fact that appellant may have been advised by a public defender that he was not a convicted felon, has no relevance.” (P. 801.) Defendant relies primarily upon People v. Bray, supra, 52 Cal.App.3d at p. 494, but that case is distinguishable. There defendant pleaded guilty in Kansas to being an accessory before the fact and was placed on two years’

summary probation, which he successfully completed. When he subsequently sought to register to vote, he filled out an explanatory form referring to a Kansas offense, and indicating that he was uncertain whether he had been convicted of a felony. He was permitted to vote. Seeking employment as a security guard, he stated that he had not been convicted of a felony but described the circumstances of his arrest and probation. The Bureau of Collection and Investigative Services registered him as a guard.

On several other job applications he indicated his uncertainty as to his status while fully setting forth the circumstances of his arrest and probation. In Bray, the court concluded that under these unusual circumstances the trial court erred in refusing to instruct on mistake or ignorance of fact and knowledge of the facts which make the act unlawful. (52 Cal.App.3d, at p. 499.) The court cautioned, however, that its decision “should not be interpreted to mean instructions on mistake or ignorance of fact and knowledge of the facts are required every time a defendant claims he did not know he was a felon ....

It is only in very unusual circumstances such as these that the giving of these instructions is necessary.” (Ibid.) In the present case, unlike Bray, defendant made no attempt to inform government officials of the circumstances of her conviction or to seek their advice regarding her correct legal status. (Some authorities have suggested that reliance upon the erroneous advice of governmental authorities might constitute an exception to the general rule that a mistake of law is no defense. See Perkins on Criminal Law (2d ed. 1969) p. 938; A.L.I. Model Pen.

Code (Proposed Official Draft 1962) § 2.04(3)(b).) We conclude that the trial court properly excluded evidence of defendant’s asserted mistake regarding her status as a convicted felon. The judgment is affirmed. Bird, C. J., Mosk, J. and Kaus, J. concurred.