Van De Kamp, 021684 CAAGO, AGO 83-616

• Case Date: February 16, 1984
• Court: California

JOHN K. VAN DE KAMP Attorney General JOHN T. MURPHY Deputy Attorney General AGO 83-616 No. 83-616 California Attorney General Opinion Office of the Attorney General State of California February 16, 1984          G. B. CRAIG, DIRECTOR, DIVISION OF LAW ENFORCEMENT, CALIFORNIA DEPARTMENT OF JUSTICE, requests an opinion on the following question:          Is a person previously convicted of the crime of unlawful sexual intercourse prohibited by Penal Code section 12021.1 from possessing a firearm capable of being concealed upon the person?          CONCLUSION          A person previously convicted of the crime of unlawful sexual intercourse is not prohibited by Penal Code section 12021.1 from possessing a firearm capable of being concealed upon the person.          ANALYSIS          Subdivision (a) of Penal Code section 12021.1^[1] prohibits any person previously convicted of any of the offenses listed in subdivision (b) of section 12021.1 from owning or having in his possession or under his custody or control "any pistol, revolver, or other firearm capable of being concealed upon the person. . . ." Among the offenses so enumerated in subdivision (b), each of which is characterized as a "violent offense," is "[r]ape."

         Rape is defined in section 261 (Stats. 1983, ch. 949, § 1) as follows:          "Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:          "(1) Where a person is incapable, because of mental disease, defect, or disorder or because of physical disability, of giving consent, and this is known or reasonably should be known to the person committing the act. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1, (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disease, defect, or disorder or physical disability rendered the alleged victim incapable of giving consent.          "(2) Where it is accomplished against a person's will by means of force or fear of immediate and unlawful bodily injury on the person or another.          "(3) Where a person is prevented from resisting by an intoxicating, narcotic, or anesthetic substance, administered by or with the privity of the accused.          "(4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused.          "(5) Where a person submits under the belief that the person committing the act is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.          "(6) Where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph 'threatening to retaliate' means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death."

         Rape is also defined in section 262 (Stats. 1983, ch. 1193, § 1):

         "(a) Rape of a person who is the spouse of a perpetrator is an act of sexual intercourse accomplished against the will of the spouse by means of force or

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