Metropolitan News-Enterprise


Friday, September 3, 2004


Page 1


C.A.: Firearm Ban Applies Only Where Shooting Is Illegal


By DAVID WATSON, Staff Writer


Conviction under a Penal Code provision criminalizing carrying a loaded firearm in public requires evidence the arrest took place in a city or another area where discharging firearms is banned, the Third District Court of Appeal ruled yesterday.

The court overturned the convictions of James Edward Knight for possession of a controlled substance with a firearm, transportation of a controlled substance, possession of a controlled substance, having a concealed firearm in a vehicle, and carrying a loaded firearm, the last allegedly in violation of Penal Code Sec. 12031(a)(1). Prosecutors failed to establish that Knight was either in the city of La Canada in El Dorado County or in an unincorporated area in which firing the weapon would be illegal, Justice Ronald Robie said.

Robie, whose opinion was joined by Justices Vance W. Raye and M. Kathleen Butz, said the other convictions also required reversal since the evidence to support them was turned up in a search incident to Knight’s arrest for the violation of Sec. 12031(a)(1).

Knight’s trial attorney argued that a conviction under that section requires proof that the defendant was in one of the locations specified in the statute. But El Dorado Superior Court Judge Daniel B. Proud agreed with prosecutors that the statute covered any public place.

Not so, Robie said.

The statute provides:

“A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.”

Subsection (f) of the law defines a “prohibited area” as “any place where it is unlawful to discharge a weapon.” Sheriff’s deputies testified at Knight’s trial that they did not know whether the area where the defendant was arrested was in La Canada or not, and did not know of any ordinance that banned firing weapons in unincorporated parts of the county.

Robie conceded that the section, with its absence of punctuation, was “not a model of clarity,” but said the interpretation for which prosecutors argued would “require that we ignore and give no effect to the language in the statute ‘in any public place’ which is repeated prior to the clause ‘in a prohibited area of unincorporated territory.’”

He declared:

“Absolutely no evidence was presented at the suppression hearing that the place or street where defendant possessed the loaded firearm was in an incorporated city or a prohibited area of an unincorporated territory as required to violate section 12031, subdivision (a)(1). Nor was there any evidence that the officers were under a reasonable mistake of fact that the place or street was in an incorporated city or a prohibited area of an unincorporated territory.”

Such evidence was necessary under the express terms of the statute, Robie declared. He noted that an attorney general’s opinion issued in 1968, shortly after the law was enacted, reached the same conclusion, stating that the section “does not prohibit the carrying of a rifle or shotgun with unexpended shells or cartridges in the magazine on a public road in an unincorporated area where there are no local ordinances or other laws or regulations prohibiting the discharge of firearms.”

Since the deputies lacked probable cause to arrest Knight, the evidence they seized from the search they conducted of him after the arrest should have been suppressed, Robie said.

The case is People v. Knight, C045858.


Copyright 2004, Metropolitan News Company