Tuesday, May 10, 2016
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Loaded Gun in Backpack Is Carried ‘On the Person’—S.C.
By KENNETH OFGANG, Staff Writer
Carrying a loaded gun in a backpack strapped to the body is no different from carrying it in the clothes a person is wearing, for purposes of a state law making it illegal to carry a gun “on the person” in a public place, the state Superior Court ruled yesterday.
The justices unanimously upheld a Court of Appeal ruling reinstating the Los Angeles Superior Court case against Steven Wade for violation of Penal Code §25850(a), provides:
“A person is guilty of carrying a loaded firearm when the person carries a loaded firearm on the 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.”
‘Distinction Untenable’
The high court said there was no distinction between a backpack, a fanny pack or other container on the body and clothing that is being worn.
“The distinction is untenable,” Justice Ming Chin wrote. “It would require, for example that we treat differently a gun in a zippered pocket of a pair of cargo pants — which would violate the statute — from a gun in a fanny pack tied around the waist — which would not violate the statute — even though, from the perspective of easy access, the gun at the waist might be closer at hand than the gun in the knee pocket of the cargo pants.”
Prosecutors appealed after Los Angeles Superior Court Judge Clifford Klein dismissed the case under Penal Code §995. Klein held that preliminary hearing testimony, indicating that Wade was carrying an unregistered, loaded revolver in his backpack while police chased him, did not establish cause to believe he had violated the statute.
Knife Ruling Distinguished
The judge cited People v. Pellecer (2013) 215 Cal.App.4th 508, which held that a knife contained in a backpack was not carried “on the person.” The Court of Appeal, however, reversed in an opinion by Justice Sandy Kriegler of Div. Five.
The Superior Court granted review in order to resolve the apparent conflict. Chin yesterday said the cases are distinguishable.
Pellecer, he noted, made a number of points that apply to knives, not guns, including the fact that a knife may be carried in a backpack for any number of legal purposes.
“Pellecer is also factually distinguishable,” the justice wrote. “There, the defendant was merely leaning on the backpack and thus, arguably, had less immediate control over its contents than defendant had in this case, where he was actually wearing the backpack....For these reasons, we disapprove People v. Pellecer…to the extent its analysis is inconsistent with this opinion, although not necessarily its holding.”
Chin also rejected the argument that the rule of lenity required that the defense’s interpretation be accepted. The Legislature’s intent to outlaw the carrying of guns in a backpack attached to the person’s body is clear, he said, noting courts in other states have consistently interpreted similarly worded laws the same way.
Deputy District Attorney Scott D. Collins argued the case for the prosecution in the Supreme Court. Court-appointed attorney David L. Polsky of Connecticut argued for Wade.
The case is People v. Wade, 16 S.O.S. 2325.
Copyright 2016, Metropolitan News Company