1

Filed 4/20/20

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

RAYMOND DOUGLAS MAY,

Defendant and Appellant.

C084302

(Super. Ct. No. 16CF04722)

APPEAL from a judgment of the Superior Court of Butte County, James F. 

Reilley, Judge. Affirmed as modified.

Jyoti Malik, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and 

Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.

* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified 

for publication with the exception of parts I, IIA, III, and IV of the Discussion.
2

Following a jury trial, defendant Raymond Douglas May was found guilty of 

possessing an assault weapon and a machine gun based on his possession of a single AK47 assault rifle while guarding a marijuana plantation. He was sentenced to probation, 

which included an electronic search condition. On appeal, defendant contends there was 

a lack of sufficient evidence corroborating his accomplice’s testimony and demonstrating

he knew of the firearm’s illegal character. He further alleges instructional error, in that 

the accomplice instruction should have included language specifying that the accomplice 

testimony needs to prove more than defendant’s mere presence or access to the firearm. 

Finally, he asserts the electronic search condition imposed as part of his probation fails 

under Lent. (People v. Lent (1975) 15 Cal.3d 481.) We agree defendant’s electronic 

search condition must be stricken, but otherwise affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

I

The Offense

In early October 2016, Antonio Alanis-Rodriguez volunteered to work on a 

marijuana plantation in Butte County to learn about the emerging market. He arrived on 

October 3 and met employees of the plantation, including defendant, although he did not 

learn any of their names. Alanis-Rodriguez was shown around the 165-acre property, 

which had eight grow sites containing over 490 plants in total. Five of the grow sites

were on the southern portion of the property and three were on the northern portion. 

What appeared to be a main campsite, consisting of multiple trailers outfitted with 

sleeping quarters, was located on the southern side of the property. There was also a 

small building with a trimming machine used for marijuana processing on the north side 

of the property. 

After touring the plantation, Alanis-Rodriguez was told to set up his tent near a 

grow site on the northern side of the property. The site was a third of a mile away from 

the main campsite. Someone asked Alanis-Rodriguez whether he would take on a tent 
3

mate, and then defendant was assigned to bunk with him. Once both men were in the 

tent, somebody gave an AK-47 rifle to defendant through the opening of the tent. AlanisRodriguez expressed discomfort but defendant assured him he would remove the gun 

from the tent and put it in a truck in the morning. Alanis-Rodriguez had never seen a gun 

like the AK-47 before but said it looked like the guns he saw in video games. AlanisRodriguez asked defendant about the job expectations for the next day, and defendant 

told him they were going to water the plants. 

When the men woke up the next morning, defendant put the AK-47 in a nearby 

parked truck as promised, and left the passenger side doors open. 1 The truck was 

registered to Juan Paises-Hernandez. The men walked to another grow site before 

returning to the grow site they had slept near. Upon their return, defendant and AlanisRodriguez saw Butte County Sheriff’s deputies executing a search warrant of the 

marijuana plantation. Officers discovered the AK-47 on the backseat of the truck parked 

at the grow site defendant and Alanis-Rodriguez were assigned to guard. They found 

identifying information of both defendant and Alanis-Rodriguez inside the tent. A search

of defendant did not yield keys to the truck and defendant was never seen driving the 

truck. 

There were tents set up at the other grow sites on the plantation. A shotgun was 

also found on the property but not confiscated because it was a legal firearm. PaisesHernandez’s belongings were found in a trailer at the main campsite. Both defendant and 

Alanis-Rodriguez, along with Paises-Hernandez were arrested. Alanis-Rodriguez pled no 

contest to possession of an AK-47 and testified against defendant. 

1 Alanis-Rodriguez testified all doors to the truck were closed at the time Detective 

James Marshall executed the search warrant, while Detective Marshall testified they were 

open. As we must, we interpret the facts in the light most favorable to the judgment. 

(People v. Brooks (2017) 3 Cal.5th 1, 57.)
4

II

Expert Testimony

Detective Marshall testified as an expert about the marijuana cultivation business. 

It is common for employees on a marijuana plantation to sleep near the grow sites to 

ensure the product is protected. To this extent, it is also common to be armed while 

guarding these sites. In fact, Detective Marshall has come across fully automatic 

weapons at marijuana grow sites at least 75 times in his over 20-year career. It is also 

common for more than one employee to guard a single grow site within a larger 

plantation. 

Detective Marshall believed Paises-Hernandez was in a management position on 

the marijuana plantation. He based this opinion on Paises-Hernandez’s statements and 

the fact that the vehicle being used on the plantation was registered to him. Usually, lowlevel employees do not bring their own vehicles to the site. Further, it appeared PaisesHernandez slept in one of the trailers at the main campsite, which is typical for 

management because the trailers provide better sleeping quarters than a tent. 

Management usually entrusts experienced employees to drive the trucks and possess 

weapons. It is unusual to trust new employees with vehicles or weapons. 

Detective Benjamin Cornelius testified as an expert in firearms. He began his 

testimony by showing the jury a semiautomatic rifle from his own gun collection. He 

explained the difference between semiautomatic and fully automatic firearms. He then 

showed the jury the confiscated AK-47, which had a collapsible stock to make it more 

compact, a flash suppressor to minimize the explosion from the weapon when fired, a 

detachable high-capacity magazine holding 30 rounds, and a three-position selector 

switch. A selector switch usually allows a person to switch the weapon’s setting from 

safety to semiautomatic fire; however, the seized AK-47 allowed a user to switch the 

weapon’s setting from safety to fully automatic fire and also to semiautomatic fire. 
5

Although Detective Cornelius could not tell simply by looking at the AK-47 that it 

was fully automatic, the presence of the three-position selector switch alerted him to the 

possibility. Upon closer inspection, he realized the gun had been modified to have a third 

position allowing for fully automatic fire. He compared the features of the seized AK-47 

to his semiautomatic rifle and noted his semiautomatic rifle was missing the collapsible 

stock, flash suppressor, and large-capacity magazine. 

DISCUSSION

I

Sufficient Independent Evidence Connected Defendant To The Crime,

Thus Corroborating Alanis-Rodriguez’s Testimony

Defendant contends there was insufficient independent evidence connecting him 

to the crime to corroborate Alanis-Rodriguez’s testimony that he was in possession of the 

AK-47, and thus his convictions cannot stand. We disagree. 

“An accomplice’s testimony must be corroborated by independent evidence 

which, without aid or assistance from the accomplice’s testimony, tends to connect the 

defendant with the crime charged. [Citations.] To determine if sufficient corroboration 

exists, we must eliminate the accomplice’s testimony from the case, and examine the 

evidence of other witnesses to determine if there is any inculpatory evidence tending to 

connect the defendant with the offense. [Citations.] ‘[C]orroboration is not sufficient if 

it requires interpretation and direction to be furnished by the accomplice’s testimony to 

give it value. . . .’ [Citation.] It must do more than raise a conjecture or suspicion of 

guilt, however grave. [Citations.] On the other hand, unless a reviewing court 

determines that the corroborating evidence should not have been admitted or that it could 

not reasonably tend to connect a defendant with the commission of a crime, the finding of 

the trier of fact on the issue of corroboration may not be disturbed on appeal.” (People v. 

Falconer (1988) 201 Cal.App.3d 1540, 1543.) 
6

“Although corroborating evidence need only be slight and may be entitled to little 

consideration when standing alone [citations], it is not sufficient to merely connect a 

defendant with the accomplice or other persons participating in the crime. The evidence 

must connect the defendant with the crime, not simply with its perpetrators. [Citations.] 

Likewise, it is insufficient to show mere suspicious circumstances.” (People v. Falconer, 

supra, 201 Cal.App.3d at p. 1543.) The evidence need not corroborate every fact to 

which the accomplice testifies. (People v. Davis (1962) 210 Cal.App.2d 721, 730.) “The 

corroborating evidence is sufficient if, without aid from accomplice testimony, it 

‘ “ ‘tends to connect the defendant with the commission of the offense in such a way as 

reasonably may satisfy a jury that the accomplice is telling the truth.’ ” ’ ” (People v. Vu

(2006) 143 Cal.App.4th 1009, 1022.)

Without Alanis-Rodriguez’s testimony the evidence was that marijuana 

plantations have a hierarchy -- with managers sleeping in comfortable sleeping quarters 

and providing supplies, while lower-level employees guarded the grow sites in tents. 

Paises-Hernandez was a manager at this plantation, evidenced by his belongings in one of 

the trailers and his ownership of the truck. In Detective Marshall’s experience, it is 

common for the guards of grow sites to be armed to protect the plants. This plantation 

likely had that practice considering another weapon was found on the property. 

Defendant shared a tent with Alanis-Rodriguez near a grow site. When Detective 

Marshall arrived at the grow site, there was a truck parked near the tent with both 

passenger side doors open and an AK-47 on the backseat. He encountered only 

defendant and Alanis-Rodriguez at that grow site. 

This evidence was sufficient to corroborate Alanis-Rodriguez’s testimony in that it 

tends to connect defendant to the commission of the offense. (People v. Vu, supra, 143 

Cal.App.4th at p. 1022.) Defendant’s belongings were found in the tent near the grow 

site suggesting he stayed the night and guarded the plants at that grow site. As the expert 

testified, employees who guard grow sites commonly use weapons. And a weapon was 
7

found at this grow site that had assaultive and machine gun characteristics. While the 

weapon was found in a truck registered to someone other than defendant, the truck was 

registered to Paises-Hernandez, a manager of the grow site, who likely provided the truck 

for defendant’s use as a lower-level employee at the grow site, along with the gun. 

Defendant relies on three cases in support of reversal. First, he relies on People v. 

Lloyd (1967) 253 Cal.App.2d 236, 239, which involves a defendant who was convicted 

of unlawful marijuana possession. The drugs were found in a public place (a bar) near 

where the defendant was standing, but there was no evidence of his dominion and control 

other than a statement of an accomplice. (Id. at pp. 238-239, 242.) The court reversed 

the conviction, finding the defendant’s presence near the drugs was insufficient 

independent corroboration to establish the dominion and control element. (Id. at p. 242.) 

Defendant argues his case is like Lloyd because “[t]he corroboration really 

establishes nothing more than appellant’s physical presence at the scene of the crime, in 

the company of another person who himself admitted to possessing the weapon. . . .” But 

defendant was not found in a public place like the defendant in Lloyd, he was found on a 

marijuana plantation guarding a grow site -- a place that has much different customs and 

practices than a public space. As Detective Marshall testified, it is common for 

marijuana plantation workers to use weapons to guard their plants and evidence 

supported an inference this plantation prescribed to that custom. The evidence here 

shows defendant was more than merely present. 

Defendant next relies on People v. Pedroza (2014) 231 Cal.App.4th 635, in which

an accomplice testified that he heard two gun shots, turned and saw Pedroza with a 

revolver pointed at the victim, and then saw a third person (Garivay) shoot the victim 

twice with a shotgun. (Id. at p. 640.) Pedroza, Garivay, and the accomplice drove to 

Garivay’s house (20 minutes away from the crime scene) where Garivay’s girlfriend Lisa 

also lived. (Id. at pp. 639-640.) On appeal from the trial court’s acquittal of Pedroza 

based on its finding there was insufficient corroboration as a matter of law, the Court of 
8

Appeal summarized the corroborating evidence connecting Pedroza to the murder charge 

as follows: “(1) [Pedroza] was in the same gang as the victim and [the accomplice]; 

(2) the gang -- which had over 400 members -- was experiencing frequent in-house 

murders; and (3) at some time after 11:00 p.m., Lisa heard a banging noise at her house; a 

few hours later, between 2:00 and 3:00 a.m., she saw [Pedroza] in her garage, along with 

Garivay, [the accomplice], and [a third person].” (Id. at pp. 643, 647, 651.) The Court of 

Appeal found the corroborating evidence showed nothing more than a general connection 

to the victim and other perpetrators, not to the crime itself. (Id. at p. 651.)

Defendant argues his case is like Pedroza because no evidence corroborated 

Alanis-Rodriguez’s testimony defendant physically possessed the AK-47. However, 

there need not be any evidence corroborating the accomplice’s testimony that defendant 

physically possessed the gun; there need only be evidence that tends to connect defendant 

to the possession of the gun. To this end, Pedroza is distinguishable because the only 

corroborating evidence in that case came from someone who was nowhere near the scene 

of the crime and who saw the defendant hours after the crime was committed. (People v. 

Pedroza, supra, 231 Cal.App.4th at p. 651.) By contrast, the corroborating evidence in 

this case was the physical evidence discovered at the grow site and expert testimony 

regarding the customs and practices of marijuana plantations, all of which tended to show 

defendant possessed an AK-47 and was not merely present near it.

Lastly, defendant points to People v. Szeto (1981) 29 Cal.3d 20, as a case unlike 

his own. There, members of an Asian street gang sought revenge against a rival gang by 

firing guns into a crowded restaurant where rival gang members were believed to be 

eating. (Id. at p. 26.) Several bystanders were killed. (Ibid.) The defendant was 

convicted of being an accessory to a felon for his role in disposing of the weapons. (Id. at 

pp. 24, 26-27.) An accomplice testified that on the morning after the shooting spree, the 

defendant brought the killers food, placed the guns in his car, drove to a spot along San

Francisco Bay, and threw the guns in the water. (Id. at p. 27.)
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The corroborating evidence established: (1) the defendant was a member of the 

Joe Boys gang; (2) Joe Boys was a rival of the Wah Ching and Hop Sing gangs, and the 

rivalry had erupted into warfare; (3) Wah Ching and Hop Sing gang members had killed 

a Joe Boys gang member; (4) the defendant attended the funeral of the fellow gang 

member killed by the rival gangs; (5) on the morning after the restaurant killings, the 

defendant brought food to the house where the killers were staying; and (6) the guns used 

the previous night were inside the house when the defendant brought the food. (People v. 

Szeto, supra, 29 Cal.3d at p. 28.) Our Supreme Court held this testimony established the 

defendant had a motive and the opportunity to aid the killers and therefore was sufficient 

corroboration of the accomplice testimony. (Id. at pp. 28-29 [“Because the corroborating 

evidence does tend to connect defendant with the commission of the crimes of which he 

has been convicted, we must uphold the jury’s verdict”].)

Defendant argues his case is different because, whereas five witnesses 

corroborated the accomplice’s testimony related to the defendant’s personal involvement, 

no evidence corroborated he personally possessed the AK-47. Corroborating evidence 

need only be slight to be sufficient (People v. Falconer, supra, 201 Cal.App.3d at p. 

1543), and nothing in Szeto suggests more than one witness’s corroborating testimony is 

required for that finding. To be sure, no witness, other than Alanis-Rodriguez, saw 

defendant possessing the AK-47. But, as discussed, defendant’s belongings were found 

in the tent near the grow site suggesting he stayed the night and guarded the plants at that 

grow site. Employees who guard grow sites commonly use weapons. And a weapon was 

found at this grow site that had assaultive and machine gun characteristics. Accordingly, 

Alanis-Rodriguez’s testimony was sufficiently corroborated. 

II

Sufficient Evidence Supports Defendant’s Convictions

Defendant contends insufficient evidence supports his convictions because no 

evidence established he knew of the illegal character of the AK-47. We disagree. 
10

The principles governing our assessment of defendant’s challenge to the 

sufficiency of the evidence are well settled. “We ‘ “ ‘must review the whole record in the 

light most favorable to the judgment below to determine whether it discloses substantial 

evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that 

a reasonable trier of fact could find the defendant guilty beyond a reasonable 

doubt. . . .’ ” ’ ‘Substantial evidence includes circumstantial evidence and any reasonable 

inferences drawn from that evidence.’ ” (People v. Brooks, supra, 3 Cal.5th at p. 57.)

A

Possession Of An Assault Weapon

A conviction for possessing an assault weapon requires “knowledge of, or 

negligence in regard to, the facts making possession criminal.” (In re Jorge M. (2000) 23 

Cal.4th 866, 887 [construing Pen. Code,2 § 12280, subd. (b), precursor to § 30605].)3

The prosecution must prove defendant “knew or reasonably should have known the 

firearm possessed the characteristics” of a prohibited assault weapon. (In re Jorge M., at 

p. 887.) One who possesses an assault rifle is not exempt from punishment merely 

because he did not trouble to acquaint himself with the gun’s salient characteristics. (Id. 

at p. 888.) Someone with “substantial and unhindered possession” of the assault weapon 

is expected to know if it is a prohibited model or has features making it prohibited. 

(Ibid.) But “one who was in possession for only a short time, or whose possession was 

merely constructive, and only secondary to that of other joint possessors, may have a 

viable argument for reasonable doubt as to whether he or she either knew or reasonably 

should have known the firearm’s characteristics.” (Ibid.) “[I]n many circumstances a 

2 Undesignated section references are to the Penal Code. 

3 Former section 12280, subdivision (b) was repealed and reenacted without 

substantive change as section 30605. (Stats. 2010, ch. 711, § 4 [repealing § 12280]; 

Stats. 2010, ch. 711, § 6 [adding § 30605].)
11

trier of fact properly could find that a person who knowingly possesses a . . . firearm 

reasonably should have investigated and determined the gun’s characteristics. The 

exceptional cases in which the salient characteristics of the firearm are extraordinarily 

obscure, or the defendant’s possession of the gun was so fleeting or attenuated as not to 

afford an opportunity for examination, would appear to be instances of largely innocent 

possession that . . . the Legislature presumably did not intend to be subject to felony 

punishment.” (Id. at p. 885.)

An AK-47 is an assault weapon. (§ 30510, subd. (a)(1).) The relevant statutory 

provisions also list characteristics to consider when determining whether a firearm is an 

assault weapon. These characteristics include a flash suppressor, a high-capacity 

magazine, a detachable magazine, and a collapsible stock. (§ 30515, subd. (a)(1)(C), (E), 

(a)(2), (a)(4)(A).) 

Given defendant’s relative comfort with the weapon in the tent and the length of 

time he had it there, the jury could have reasonably concluded defendant was not a person 

in possession of the weapon for a short time or whose possession was merely 

constructive; but instead, substantial to the point where he should have inspected the 

weapon to discern its assaultive character. (In re Jorge M., supra, 23 Cal.4th at p. 888.) 

The jury was permitted to view the AK-47, with its detachable high-capacity magazine, 

flash suppressor, and collapsible stock, and compare it to a legal semiautomatic rifle and 

pictures of a legal shotgun also found on the plantation. By this comparison, the jury 

could discern for itself whether defendant reasonably should have known the firearm 

possessed the characteristics of a prohibited assault weapon. An affirmative conclusion 

is supported by Alanis-Rodriguez, who was alarmed by the weapon’s presence and 

thought it looked like something out of a video game. Thus, sufficient evidence supports 

defendant’s conviction for possessing an assault weapon. 
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B

Possession Of A Machine Gun

Section 32625, subdivision (a) provides: “Any person . . . who within this state 

possesses or knowingly transports a machinegun . . . is guilty of a public offense . . . .” 

(Ibid.; 1170, subd. (h)(1).) A machine gun is any weapon that shoots “automatically 

more than one shot, without manual reloading, by a single function of the trigger.” 

(§ 16880.)

In 1953, the Second District, Division Three, interpreted an earlier version of this 

law.4 (People v. Daniels (1953) 118 Cal.App.2d 340.) It concluded “the Machine Gun 

Law” was a strict liability offense. (Id. at p. 343.) The court reasoned, “[i]n view of the 

use of the word ‘knowingly’ as applied to transportation, we think it conclusive that, as 

applied to the possession of a machine gun, the Legislature intended that the mere fact of 

possession should constitute the crime.” (Id. at p. 345.) Because the statute’s language 

was unequivocal, the court saw “a clear legislative determination that society can best be 

protected against the evil of possession by a vigorous application of an inflexible rule. 

No doubt the Legislature felt that possession of a machine gun could hardly be had 

without knowledge that the object was in fact a machine gun; and that, on the other hand, 

there may be innocent, unwitting, inadvertent, or unintended acts of transportation.” 

(Ibid.) 

4 The statute forbid sale, offering for sale, possession or knowing transportation. 

(Stats. 1933, ch. 450, p. 1170, § 2.) The statute has remained substantially the same 

since. It was codified in 1953 after the Daniels decision as section 12220, which was 

then amended several times without relevant change. In 2012, it was renumbered to 

section 32625 as part of the Legislature’s effort to make numerous nonsubstantive 

revisions to the deadly weapons statutes. (§ 16005; Sen. Rules Com., Off. of Sen. Floor 

Analyses, 3d reading analysis of Sen. Bill No. 1080 (2009-2010 Reg. Sess.) as amended 

Apr. 7, 2010.)
13

In 1984, the First District, Division Four, revisited the issue and determined 

possession of a machine gun a strict liability crime. (People v. Corkrean (1984) 152 

Cal.App.3d 35, 38-39.) It thought it a question of statutory construction and rejected the 

defendant’s attempt to analogize the statute to possession of narcotics, where scienter is 

implied. (Id. at p. 38.) It reasoned that in narcotics law, scienter was missing from the 

statutes altogether, thus it could be consistently read into the statutory language. Here, 

scienter is specified for one type of conduct (transport) but not another (possession), 

showing a clear intent to treat these acts differently. (Id. at pp. 38-39.) Further, the 

Legislature knows the law and failed to amend possession of a machine gun to include a 

knowledge requirement despite having amended the statute for other reasons and other 

parts of the statutory scheme to include knowledge requirements. (Id. at pp. 39-40.) 

In 1994, the United States Supreme Court concluded the federal law prohibiting 

possession of a machine gun was not a strict liability offense despite the fact the statute 

was silent regarding mens rea. (Staples v. United States (1994) 511 U.S. 600 [128 

L.Ed.2d 608].) It started with the language of the statute read in light of common law 

principles favoring mens rea. The Supreme Court questioned whether the presumption of 

a mens rea was rebutted by express or implied congressional intent to the contrary. It 

concluded it was not because the statute was silent in that regard. (Id. at pp. 605-606, 

619 [128 L.Ed.2d at pp. 615-616, 624-625].) It then analyzed whether the presumption 

could be rebutted because the statute defined a public welfare offense, concluding it did 

not. (Id. at p. 606-619 [128 L.Ed.2d at pp. 616-624].) 

In 2000, our Supreme Court decided In re Jorge M. after the appellate court’s 

decision to read mens rea into the statute prohibiting possession of an assault weapon. 

(In re Jorge M., supra, 23 Cal.4th at p. 871.) In doing so, the appellate court 

distinguished Corkrean and Daniels as having been decided before Staples and other 

decisions limiting the circumstances when the courts may infer a legislative intent to 

create a strict liability offense. (In re Jorge M. (1998) 66 Cal.App.4th 809, 819-821.) 

Notably, our Supreme Court did not adopt this reasoning, even though it agreed with the 
14

appellate court a knowledge requirement was appropriate.5 Instead, it followed the 

analytical framework announced in Staples. 

First, our Supreme Court determined whether the plain meaning of the assault 

weapon statute expressly or by necessary implication excluded a knowledge requirement. 

It concluded the statute was silent. (In re Jorge M., supra, 23 Cal.4th at p. 872.) It then 

analyzed whether possession of an assault weapon was a public welfare offense, 

concluding it was not. (Id. at pp. 872-877.) In doing so, the court distinguished 

Corkrean and Daniels as dealing with a statute containing language of scienter in its 

prohibition on transportation but not in its prohibition on possession, as opposed to the 

statute at issue which was completely silent. (Id. at p. 878.) In a footnote, our Supreme 

Court cautioned: “Because this case involves only the interpretation of the [Assault 

Weapons Control Act], we have no occasion to address the interpretation of other 

weapons laws. We note, however, that, in addition to potentially significant differences 

in statutory language, there are other important considerations that come into play when a 

court is requested to modify an established judicial interpretation of a statute. (See, e.g., 

Patterson v. McLean Credit Union (1989) 491 U.S. 164, 172-173, [109 S.Ct. 2363, 2370, 

105 L.Ed.2d 132] [noting special force of stare decisis considerations in area of statutory 

interpretation”].) (In re Jorge M., at p. 877, fn. 7.) 

Since Jorge M., our Supreme Court has had occasion to interpret strict liability 

crimes. (See People v. King (2006) 38 Cal.4th 617, 621-628 [weapon possession statute 

required knowledge because silent as to intent and not public welfare offense]; see also In

re Jennings (2004) 34 Cal.4th 254, 268 [finding public welfare offense after concluding 

statute silent regarding mens rea].) Our Supreme Court has not had occasion to interpret 

5 While the appellate court concluded a defendant must know he or she is in 

possession of an assault weapon, our Supreme Court concluded the criminal negligence 

standard of knew or reasonably should have known was appropriate. (In re Jorge M., 

supra, 23 Cal.4th at p. 885.)
15

a statute similar to possession of a machine gun, where a knowledge requirement is 

referenced regarding one act but not the other. 

Given this history, we now return to possession of a machine gun and conclude it 

is a strict liability offense. The reasoning of Daniels and Corkrean rings true in light of 

current case law. Both Staples and Jorge M. concluded the statutes at issue there 

required some form of knowledge because the statutes were silent. (Staples v. United 

States, supra, 511 U.S. at pp. 605-606, 619 [128 L.Ed.2d at pp. 615-616, 624-625]; In re 

Jorge M., supra, 23 Cal.4th at p. 872.) Here, that is not the case -- the statute mentions 

knowledge in relation to transportation and not in relation to possession. (§ 32625, 

subd. (a).) Because the statute contains a knowledge requirement, it is not like the silent 

statutes in Staples and Jorge M., and we can imply a legislative intent through the plain 

meaning of the statute. The Legislature’s selective use of the word knowing in the statute 

should not be ignored by California courts. We agree with the Daniels and Corkrean

courts that the failure to specify scienter for possession of a machine gun, when one was 

specified for transportation, indicates the Legislature intended the crime of possession to 

be accomplished without knowledge.

Further, the language prohibiting possession and transportation of a machine gun 

was enacted in 1933 and determined to define a strict lability offense by its express terms 

in 1953, and again in 1984. (Stats. 1933, ch. 450, p. 1170, § 2; People v. Corkrean, 

supra, 152 Cal.App.3d at pp. 38-39; People v. Daniels, supra, 118 Cal.App.2d at pp. 344-

345.) It then went unchanged for decades after that determination, despite amendments 

to the statute itself and other portions of the Control of Deadly Weapons Act, not to 

mention an overhaul of the entire scheme to ensure statutes imposing criminal penalties 

are easily understandable. (See Corkrean, at p. 39; see also § 32625; Sen. Rules Com., 

Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 1080 (2009-2010 Reg. 

Sess.) as amended Apr. 7, 2010.) The Legislature is presumed to know the law. 

(Corkrean, at pp. 39-40.) Its inaction in amending the possession element of the statute 

in spite of cases concluding it a strict liability offense, leads us to the conclusion it 

intended the crime to be a strict liability offense.
16

We are cognizant that times have changed, and possession of a machine gun is not 

always as obvious as the Daniels court described it. (People v. Daniels, supra, 118 

Cal.App.2d at p. 345.) Given modern advances in weapon technology, it is possible the 

Legislature never envisioned a situation where formally-legal firearms could be internally 

modified without external clues to the modifications, much like the situation in this case. 

Still, the language of the statute combined with its history, persuade us the offense 

remains strict liability. For these reasons, sufficient evidence supports defendant’s 

conviction for possession of a machine gun. 

III

There Was No Instructional Error

During discussions about jury instructions, defense counsel requested the court 

instruct the jury using a special instruction defining possession for the purposes of the 

charged offenses. The special instruction provided: “To possess a firearm means to 

know of its presence, and to take possession and control [of] it. Mere presence near or 

access to the firearm is not enough. [¶] Two or more people can possess a firearm at the 

same time. A person does not have to actually hold or touch something to possess it. It 

is enough if the person has control over it or the right to control it, either personally or 

through another person.” The court denied defendant’s request stating it thought the 

language confusing when compared to the pattern instructions on possession, which 

provided, “[a] person does not have to actually hold or touch something to possess it.” 

Defendant contends the court erred by refusing to instruct the jury with defense 

counsel’s proposed instruction. Specifically, he argues the special instruction was 

required to be part of the instruction on accomplice testimony because, to prove guilt, the 

corroborating independent evidence needed to prove more than the fact that defendant 

was present and had knowledge of the crime. This, however, was not the argument 

defense counsel made in the trial court. Defense counsel offered the special instruction to 

pinpoint the standard required to find he possessed the weapon for the possession 
17

offenses, not as an explanation of the corroborating evidence required to support AlanisRodriguez’s testimony. Defendant does not take issue with the court’s refusal to include 

the special instruction with the possession instructions, and thus has forfeited that claim 

on appeal. (Cal. Rules of Court, rule 8.204(a)(1)(B) [each point must be separately 

headed and supported by argument and authority if available].)

Instead, defendant’s argument on appeal is unrelated to the special instruction. 

Relying on People v. Boyd (1990) 222 Cal.App.3d 541 and In re Michael T. (1978) 

Cal.App.3d 907, he argues the court had a sua sponte duty to instruct as part of the

instruction on accomplice testimony that the independent corroborating evidence needed 

to establish more than his mere presence near and knowledge of the crime. These cases 

do not support defendant’s position because they both stand for the proposition that mere 

presence near and knowledge of the crime is insufficient to amount to aiding and 

abetting, not guilt of the underlying crime. (Boyd, at pp. 556-557; In re Michael T., at 

p. 911.) Here, as defendant concedes, Alanis-Rodriguez was an aider and abettor, thus 

his instructional claim fails. 

IV

The Electronic Search Condition Must Be Stricken

The trial court sentenced defendant to three years of formal probation. As part of 

his conditions of probation, the court imposed special condition 65, which provided: 

“The defendant provides specific consent within the meaning of [section] 1546 to any 

law enforcement agency seeking information provided by the California Electronic 

Communication Protection Act. This includes consent to seize and examine call logs, 

texts and voicemail [sic] messages, photographs and emails, contained on any device or 

cloud or internet connected storage owned, operated, or controlled by the defendant, 

including but not limited to cell phones, computers, computer hard drives, laptops, 
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gaming consoles, mobile devices, tablets, storage media devices, thumb drives, Micro SD 

cards, external hard drives, or any other electronic storage devices, by whatever law 

enforcement agency is seeking the information. The defendant shall also disclose any 

and all passwords, passcodes, password patterns, fingerprints, or other information 

required to gain access into any of the aforementioned devices.” When imposing this 

condition, the court made no comment, and neither did the probation report, as to the 

condition’s applicability to preventing future criminality.6 

Defendant contends the electronic search condition must be stricken for failing to 

comply with Lent and for violating his Fourth and Fifth Amendment rights. The People 

argue defendant forfeited these claims for failing to object at sentencing. Acknowledging 

this possibility, defendant argues his trial counsel was ineffective. 

We exercise our discretion to reach the merits of defendant’s challenge under Lent

(see People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6), and agree the condition must 

be stricken. Given this conclusion, we need not address defendant’s remaining 

contentions. 

Recently, in Ricardo P., our Supreme Court concluded electronic search 

conditions are invalid under Lent because they are not reasonably related to future 

criminality when the record contains no indication a defendant “had used or will use 

electronic devices in connection with . . . illegal activity.” (In re Ricardo P. (2019) 7

Cal.5th 1113, 1116.) There, the juvenile defendant admitted committing two felony 

burglaries and told a probation officer he was not thinking during the crimes and as a 

result stopped smoking marijuana “ ‘because he felt that [it] did not allow him to think 

6 Defendant stated to the probation department that he was offered the job at the 

marijuana plantation through word-of-mouth. Once hired and before being transported to 

the plantation, his phone was confiscated and he did not have access to it. AlanisRodriguez made similar statements during his testimony. 
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clearly.’ ” (Ibid.) The trial court imposed an electronic search condition as a condition of 

probation, reasoning it was necessary to monitor the juvenile’s compliance with the drug 

conditions imposed because minors typically brag about their drug use on the Internet. 

(Id. at pp. 1116-1117.) 

Like in Ricardo P., the electronic search condition satisfies the first two prongs of 

the Lent test in that the condition “ ‘ “has no relationship” ’ to the crime for which 

[defendant] was convicted [citation]; there is no indication that any electronic device was 

involved in the commission of the” weapon possessions and “the electronics search 

condition clearly ‘ “relates to conduct which is not in itself criminal.” ’ ” (In re Ricardo 

P., supra, 7 Cal.5th at p. 1119.) The question is whether the condition “satisfies Lent’s 

third prong -- that is, whether it ‘ “requires or forbids conduct which is not reasonably 

related to future criminality.” ’ ” (Ibid.) We conclude that like Ricardo P., defendant has 

satisfied the third Lent prong and demonstrated the condition is not related to future 

criminality.

Neither the trial court nor the probation report made reference to the purpose the 

electronic search condition served. Further, there is nothing in the record demonstrating 

that electronics were related to defendant’s commission of the crimes or to any prior 

criminal conduct. Given this disconnect, the burden placed on defendant’s privacy is 

substantially disproportionate to any perceived goal and is therefore invalid under Lent

and must be stricken. (In re Ricardo P., supra, 7 Cal.5th at pp. 1128-1129.)

DISPOSITION

The order granting probation is modified by striking the electronic search 

condition. As modified, the order is affirmed. Nothing in this opinion prevents the trial 

court from exercising its discretion, following a noticed hearing, to modify the probation 

terms if presented with additional facts that would tie an electronic search condition to 

defendant’s future criminality as set forth in Ricardo P. (See § 1203.3, subds. (a), (b); 
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People v. Leiva (2013) 56 Cal.4th 498, 505 [order modifying probation based on the 

same facts exceeds the court’s jurisdiction].)

/s/ 

Robie, Acting P. J.

We concur:

/s/ 

Murray, J.

/s/ 

Renner, J.