People v. Delong
| Decision Date | 30 September 1970 |
| Docket Number | Cr. 8274 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. James A. DeLONG, Defendant and Appellant. |
William R. Higham, Public Defender, Stuart A. Safine, Deputy Public Defender, Martinez, for appellant.
Thomas C. Lynch, Atty. Gen., Robert R. Granucci, George R. Nock, Deputy Attys. Gen., San Francisco, for respondent.
Paul N. Halvonik, Charles C. Marson, San Francisco, amicus curiae, in support of appellant, American Civil Liberties Union.
The constitutionality of two gun control statutes, Penal Code, section 171e and Penal Code, section 12031, subdivision (c), comes before us in an oblique way. The prosecution in this case was for violation of section 11530 of the Health and Safety Code by possession of marijuana. Appellant was convicted and was granted probation for three years upon conditions of his paying a fine and registering pursuant to relevant statutes. The marijuana was in plain sight when officers opened the trunk of appellant's automobile; wherefore, the legality of the opening is important, and that legality in turn depends on the constitutionality of the statutes mentioned above.
The case was submitted on the municipal court transcript. A campus policeman at Diablo Valley College, using binoculars, saw a group of people gathered about a red automobile. A rifle was taken from the vehicle by appellant and was placed in a brown automobile. The brown vehicle departed. The officer saw two other firearms, which he thought were rifles, in the trunk of the red car. Appellant departed on foot, but returned a half hour later; meanwhile, an officer staked out the stationary red car. A deputy sheriff was sent to the scene. The deputy informed appellant, who was sitting at the wheel of the car, that he had been notified of the presence of rifles in the trunk of the car. Appellant denied the presence of any guns, whereupon the deputy requested appellant to open the trunk. Appellant replied that he did not have a key thereto. The deputy then ordered appellant to exit the vehicle. After appellant had alighted, he dropped a key. The officers opened the trunk with the key for the purpose of determining whether the guns therein were loaded. Discovered in the trunk were a rifle and a shotgun, both of which, upon examination, proved to be unloaded. A quantity of marijuana was in plain view. Appellant was then placed under arrest for possession of marijuana. He had not violated any gun law.
In 1967 the Legislature enacted section 171c of the Penal Code, which in substance makes it a crime (a possible felony) to bring a loaded firearm into or to possess a loaded firearm within the State Capitol, any legislative office, office of the Governor, or other constitutional officer or legislative committee room (none of these is involved in this case), or within or upon the grounds of any public school, the University of California, or state colleges. (Diablo Valley College is a public school.) Exceptions are made for certain officers and licensed persons. (Another section of the Penal Code, § 171d, has to do with loaded firearms at legislators', the Governor's, and the officers' residences.)
In the same year, the Legislature enacted section 12031 of the Penal Code, which makes it a misdemeanor for any person to carry a loaded firearm 'on his 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.' ('Prohibited area' is defined in subdivision (d) of the section as a place where it is unlawful to discharge a weapon.) Exceptions are provided for various kinds of officers, guards, etc. and for certain uses such as upon target ranges, at shooting clubs, and making a lawful arrest; and it is stated that it is not forbidden to have a loaded weapon at one's place of residence or at one's place of business, or under circumstances which cause a person reasonably to believe that the person or the property of himself or another is in immediate danger and that the carrying of the weapon is necessary for the preservation of person or property.
The definitions of a loaded fircarm are different in the statutes affecting the carrying or possession of firearms in the two kinds of places. Penal Code, section 171e, which implements section 171c and section 171d, provides that: 'A firearm shall be deemed loaded for the purposes of Sections 171c and 171d whenever both the firearm and unexpended ammunition capable of being discharged from such firearm are in the immediate possession of the same person.' Penal Code section 12031, subdivision (e) reads: 'A firearm shall be deemed to be loaded for the purposes of this section when there is an unexpended cartridge or shell, consisting of a case which holds a charge of powder and a bullet or shot, in, or attached in any manner to, the firearm, including, but not limited to, in the firing chamber, magazine, or clip thereof attached to the firearm; except that a muzzle-loader firearm shall be deemed to be loaded when it is capped or primed and has a powder charge and ball or shot in the barrel or cylinder.'
The statutes provide that whether or not a firearm is loaded for purpose of enforcing the respective statutes, peace officers are authorized to examine any firearm carried by anyone on his person or in a vehicle and that refusal to allow a peace officer to inspect firearm pursuant to statute constitutes probable cause for arrest for violation of the statute. (Pen.Code, §§ 171e, 12031, subd. (c).)
Although appellant actually was not carrying or in possession of a loaded firearm, he was seen to possess a firearm in a vehicle on the campus of a junior college. Section 171c seems to apply to this case rather than section 12031, because of the precise location of the firearm, namely, on the grounds of a school rather than in a vehicle, in any public place, or on any public street. Since the statutes relating to inspection of the firearms are essentially the same, it is not necessary to discuss the applicability of the one or the other of the statutes. Appellant was not charged with violation of any firearm statute, but with the possession of marijuana.
Respondent suggests that the opening of the trunk by the officers was permissible regardless of the provisions of section 171e, wherefore the constitutionality of that section need not be decided. The argument is that probable cause to believe that the guns were loaded appears from the fact that appellant made two false statements to the officer and the officer knew them to be false. The first was appellant's denial that there were guns in the car, and the second, his saying that he had no key to the car. This gave rise to a reasonable belief, says respondent, that the guns were loaded or were stolen or were the instrumentalities of some crime.
We do not agree with this reasoning. The officers knew of no particular crime in which the guns might have been used, and they did not have probable cause for believing them to have been stolen merely from the fact that some exchange of articles, perhaps for money, had been made. Besides, the deputy sheriff testified that the purpose of opening the trunk was to see if the guns which were there were loaded weapons. Nor does the false statement that there were no guns in the car, as made by appellant, supply sufficient probable cause, apart from the statutes which are to be discussed under the next heading, to believe that the guns were loaded. Appellant's denial of the presence of the guns and also his dropping of the key, although they were evasive actions, would not, we believe, justify opening of the trunk in the absence of these statutes. There is no testimony by the officers that the false statements caused them to believe that the guns were loaded. It may fairly be inferred from all of the testimony that if the appellant had responded truthfully that he had the guns and if the officers had the key, they would have opened the trunk.
On the other hand,...
To continue reading
Request your trial
-
People v. Zonver
...peace officer may enter the vehicle to examine the firearm pursuant to subdivision (e) of section 12031. We follow People v. DeLong (1970) 11 Cal.App.3d 786, 90 Cal.Rptr. 193 and People v. Greer (1980) 110 Cal.App.3d 235, 167 Cal.Rptr. 762 in holding that such a request is not an essential ......
-
Rupf v. Yan
...1280.) 7. Common statutory definitions of "loaded" firearms include loaded and attached magazines or clips. (See People v. Belong (1970) 11 Cal.App.3d 786, 789, 90 Cal.Rptr. 193; People v. Clark (1996) 45 Cal.App.4th 1147, 1152, 53 Cal.Rptr.2d 99; Pen.Code, § ...
-
Nichols v. Harris
...weapon, the officers are not attempting to find some kind of contraband which is unrelated to the gun itself.People v. Delong, 11 Cal.App.3d 786, 791–92, 90 Cal.Rptr. 193 (1970). Accordingly, a person who displays a weapon in public does not have a privacy interest that “society is prepared......
-
Rupf v. Yan
...Code, 1280.) 7. Common statutory definitions of "loaded" firearms include loaded and attached magazines or clips. (See People v. Delong (1970) 11 Cal.App.3d 786, 789; People v. Clark (1996) 45 Cal.App.4th 1147, 1152; Pen. Code, 12031.) ...