Wednesday, February 11, 2015
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Firearm in Backpack Is Carried ‘On the Person’—Court of Appeal
By a MetNews Staff Writer
A person carrying a backpack containing a loaded revolver comes under a statute proscribing “carrying a loaded firearm…on the person,” Div. Five of this district’s Court of Appeal held yesterday.
The opinion reinstates the prosecution of a man charged with violating Penal Code §25850(a). The action was dismissed by Los Angeles Superior Court Judge Clifford L. Klein on the basis of People v. Pellecer, 215 Cal.App.4th 508.
In that case, decided by Div. One in 2013, it was held that a knife in a backpack was not carried “on the person.” Then-Presiding Justice Robert Mallano (now retired) wrote:
“If the Legislature had wanted to criminalize possession of a dirk or dagger that is concealed inside a carried container, it could have expressly referred to dirks or daggers inside carried containers or replaced the phrase ‘upon his or her person’ with ‘on or about his or her person.’ The Legislature did not choose any of these alternatives, and for all of the reasons set forth in this opinion, we conclude that ‘upon the person’ does not include a carried or adjacent container, such as the backpack upon which defendant was leaning.”
Opinion By Kreigler
In yesterday’s opinion, Justice Sandy Kriegler differentiated the carrying of a knife from carrying a loaded gun, but made clear he thought Pellecer was wrongly decided. He wrote:
“…Pellecer is distinguishable on two bases. First, the defendant in Pellecer was leaning on his backpack, as opposed to defendant, who wore the backpack containing the revolver while fleeing from the officer. The factual basis for the ‘carries’ aspect of section 25850, subdivision (a), is readily apparent in this case. Second, although not acknowledged by the Pellecer court, concealed knives and firearms represent varying degrees of danger, and the legislature treats the public possession of firearms and knives differently.”
A knife in a sheath may be worn in public, suspended from a person’s waist, Kreigler explained, while a person may not go around in public carrying a gun.
He said that even if the court in Pellecer was right that it’s not a crime to carry a knife in a backpack, the same reasoning does not apply to firearms.
Appellate Department Opinion
The jurist noted that in People v. Dunn, 61 Cal.App.3d Supp. 12, decided in 1976 by what was then the Appellate Department (now “Division”) of the Los Angeles Superior Court, it was held “that the Legislature intended to proscribe the carrying of concealed weapons by both men and women and that a handgun concealed in a suitcase and carried by appellant is sufficiently ‘upon his person’ to constitute” carrying a concealed firearm.
“For 37 years,” Kriegler remarked, “the holding in Dunn…went unquestioned in California and courts in other states. Dunn’s acceptance ended in 2013 with Pellece….”
He went on to say:
“The Pellecer analysis relied heavily on a rejected 1997 amendment to former section 12020, which would have modified the statute to expressly state that it is not unlawful to carry a dirk or dagger in a backpack….According to the cited legislative history, the amendment was considered unnecessary because such conduct was not criminal under existing case law….Significantly, that purported case law is not cited in either the legislative history, or in Pellecer.”
Mallano’s View
In that Div. One case, Mallano said:
“Finding no California authorities on point, the court relied upon a New York Court of Appeals search and seizure case….
“The Dunn court’s reliance upon a New York search and seizure case to determine the intent of California’s Legislature was misplaced. To the extent [the case] may be read as reflecting a determination of the intent of the New York Legislature in enacting the cited statute containing the phrase ‘concealed upon his person,’ the same intent cannot be automatically imputed to the California Legislature.”
Kreigler scoffed:
“The interpretation of a similar statute by a highly regarded court of another state was persuasive authority that assisted in interpreting California law.”
He declared:
“In our view, the holding in Dunn is consistent with the purpose of the Act, which is to prevent a person from carrying a readily accessible concealed firearm. We have no difficulty in concluding that defendant’s immediate access to the revolver within the backpack he wore created the type of clear threat to the general public and the pursuing officer that is prohibited by section 25850, subdivision (a).”
Los Angeles Superior Court Judge Allan J. Goodman, sitting on assignment, said in a concurring opinion:
“I add this statement to emphasize that Wade had immediate and full control of the backpack and of the (loaded) firearm he carried inside it, as demonstrated by both his wearing the backpack and taking it off and discarding it as the officer pursued him. It would have been just as easy for Wade to have opened the backpack and fired the weapon as it would have been for him to have taken the gun from a holster or from a fastened (or unfastened) inside pocket of a jacket he might have been wearing. The element common to all of these circumstances is immediate access to the firearm.”
The case is People v. Wade, B255894.
Deputy District Attorneys Phyllis C. Asayama and Scott D. Collins gained the reversal. Mar Vista attorney Jean Ballantine argued for an affirmance.
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