Conviction for permitting a person to carry a loaded firearm in a vehicle requires proof that the defendant knew the gun was loaded. Gonzales was convicted of permitting another person to carry a loaded gun in a vehicle (Pen. Code, § 26100, subd. (a)) based on evidence that a 15-year-old boy riding in his car had a loaded pistol. A gang allegation was found true (Pen. Code, § 186.22, subd. (d)). He appealed, challenging the proof of and instruction on the offense. Held: Reversed. Section 26100, subdivision (a) makes it a misdemeanor for a driver to knowingly permit any other person to bring into the vehicle a firearm in violation of section 25850 or Fish and Game Code section 2006; these latter two sections apply only where the gun is loaded. Disagreeing with In re Ramon A. (1995) 40 Cal.App.4th 935 (violation of former section 12034, the predecessor to section 26100, does not require proof the driver knew the gun was loaded), the court concluded that a section 26100 conviction contains an express knowledge element that the gun was loaded. Cases such as Ramon A. preceded the “evolution of [the California Supreme Court’s] mens rea jurisprudence,” i.e., In re Jorge M. (2000) 23 Cal.4th 866 (despite absence of express mens rea requirement, violation of former section 12280, prohibiting possession of assault weapon, requires knowledge of the characteristics of the gun rendering it illegal) and People v. King (2006) 38 Cal.4th 617 (former section 12020, prohibiting possession of short-barreled rifle, requires proof of possessor’s knowledge the gun is illegal). Although the language of section 26100, subdivision (a) is ambiguous as to whether “knowingly” and “permit” apply to the facts necessary to a violation of section 25850, the legislative history supports the court’s conclusion. Even though sufficient evidence was presented to prove that Gonzales knew the gun was loaded, the court prejudicially erred by failing to instruct on the knowledge element, requiring reversal.
The evidence was sufficient to support the gang allegation. The gang allegation required proof that Gonzales committed the substantive offense for the benefit of a gang, with the specific intent to promote or further the gang’s activities (Pen. Code, § 186.22, subd. (d)). Here, the evidence supported a reasonable inference Gonzales intended to assist a fellow gang member in criminal conduct based on the circumstances of the offense and the gang expert testimony.