People v. Wade

• Decision Date: 10 February 2015
• Docket Number: B255894
• Citation: 183 Cal.Rptr.3d 714,234 Cal.App.4th 265
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Steven WADE, Defendant and Respondent.

234 Cal.App.4th 265

183 Cal.Rptr.3d 714

The PEOPLE, Plaintiff and Appellant

v.Steven WADE, Defendant and Respondent.

B255894

Court of Appeal, Second District, Division 5, California.

Filed February 10, 2015

Jackie Lacy, District Attorney, Phyllis C. Asayama and Scott D. Collins, Deputy District Attorneys, for Plaintiff and Appellant.

Jean Ballantine, Los Angeles, under appointment by the Court of Appeal, for Defendant and Respondent.

Opinion

KRIEGLER, J.

Defendant Steven Wade was held to answer on a charge of carrying a loaded firearm on his person (Pen.Code, § 25850, subd. (a) ).¹ Preliminary hearing testimony established that defendant was wearing a backpack containing a loaded revolver while being pursued by a police officer. The trial court granted defendant's section 995 motion to dismiss, finding that defendant did not carry the firearm on his person under the reasoning in People v. Pellecer (2013) 215 Cal.App.4th 508, 155 Cal.Rptr.3d 477 (Pellecer ), which held that a knife contained in a backpack is not carried “on the person.”

On appeal by the People, we reverse. A defendant wearing a backpack containing a firearm carries the firearm on his or her person. We decline to apply the reasoning in Pellecer, supra, 215 Cal.App.4th 508, 155 Cal.Rptr.3d 477, to possession of a firearm concealed in a backpack in light of the historical interpretation of “carries a loaded firearm on the person” in California, which is in accord with decisions from other jurisdictions considering language similar to section 25850, subdivision (a).

DISCUSSION

Section 25850, subdivision (a) provides as follows: “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.” The issue presented is whether a person wearing a backpack containing a loaded firearm “carries a loaded firearm on the person.”

Standard of Review

“Insofar as the Penal Code section 995 motion rests on issues of statutory interpretation, our review is de novo. (People v. Superior Court (Ferguson ) (2005) 132 Cal.App.4th 1525, 1529, 34 Cal.Rptr.3d 481.)” (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1072, 103 Cal.Rptr.3d 767, 222 P.3d 214.) “ ‘Under settled canons of statutory construction, in construing a statute we ascertain the Legislature's intent in order to effectuate the law's purpose. (Dyna–Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386–1387 [241 Cal.Rptr. 67, 743 P.2d 1323].) We must look to the statute's words and give them their usual and ordinary meaning. (DaFonte v. Up–Right, Inc. (1992) 2 Cal.4th 593, 601 [7 Cal.Rptr.2d 238, 828 P.2d 140].) The statute's plain meaning controls the court's interpretation unless its words are ambiguous.’ (Green v. State of California (2007) 42 Cal.4th 254, 260 [64 Cal.Rptr.3d 390, 165 P.3d 118].)” (People v. Robinson (2010) 47 Cal.4th 1104, 1138, 104 Cal.Rptr.3d 727, 224 P.3d 55.)

The Relevant Statutes

Section 25850, subdivision (a), is the successor statute to former section 12031, subdivision (a)(1), which was repealed in 2010 as part of the Deadly Weapons Recodification Act of 2010 (The Act).² (§ 16000 et seq.) The Act is not intended to substantively change the law relating to deadly weapons and “is intended to be entirely nonsubstantive in effect.” (§ 16005.) Provisions of the Act are intended to be restatements and continuation of prior statutes in the absence of the appearance of a contrary legislative intent. (§ 16010.) “A judicial decision interpreting a previously existing provision is relevant in interpreting any provision of” the Act, although “the Legislature has not evaluated the correctness of any judicial decision interpreting a provision affected by the act” and it “is not intended to, and does not, reflect any assessment of any judicial decision interpreting any provision affected by the act.” (§ 16020.)

“ ‘ “The general purpose of The Dangerous Weapons[ ] Control Law ( [former] § 12000 et seq.) is to control the threat to public safety in the indiscriminate possession and carrying about of concealed and loaded weapons.” ’ (Garber v. Superior Court (2010) 184 Cal.App.4th 724, 730 .)” (People v. Vaughn (2014) 230 Cal.App.4th 322, 332, 178 Cal.Rptr.3d 595.) “[C]arrying a concealed firearm presents a recognized ‘threat to public order’ ” because immediate access to the firearm impedes others from detecting its presence. (People v. Yarbrough (2008) 169 Cal.App.4th 303, 314, 86 Cal.Rptr.3d 674, citing People v. Hodges (1999) 70 Cal.App.4th 1348, 1357, 83 Cal.Rptr.2d 619, and People v. Hale (1974) 43 Cal.App.3d 353, 356, 117 Cal.Rptr. 697.)

California courts apply this broad legislative purpose in interpreting statutes regulating the possession of firearms. For example, courts have refused to impose an element of operability to statutes regulating firearms use and possession. “The Dangerous Weapons' Control Law ( [former] § 12000 et seq.) provides for various penalties and enhancements for use of firearms. Following the legislature's amendment of Penal Code section 12001, no court has held operability of a firearm to be an element of the Dangerous Weapons' Control Law. Thus Penal Code section 12022, subdivision (a) (enhancing a sentence when a felony is committed while armed), (People v. Nelums (1982) 31 Cal.3d 355 [182 Cal.Rptr. 515, 644 P.2d 201] ), [former] section 12020 (possession of a sawed-off shotgun), (People v. Favalora (1974) 42 Cal.App.3d 988, 991 ), [former] section 12021 (possession of a concealable firearm by an ex-felon), (People v. Thompson (1977) 72 Cal.App.3d 1 ), Penal Code section 12022.5 (enhancement for use of a firearm during commission of a felony), (People v. Jackson [ (1979) ] 92 Cal.App.3d 899 ), and Penal Code section 4574 (possession of a firearm while confined in jail), (People v. Talkington (1983) 140 Cal.App.3d 557 ) all were held not to require operability of the firearm.” (People v. Taylor (1984) 151 Cal.App.3d 432, 437, 199 Cal.Rptr. 6 ; see also People v. Marroquin (1989) 210 Cal.App.3d 77, 80–82, 258 Cal.Rptr. 290 [former § 12025 prohibiting carrying a concealed firearm does not require operability].)

The issue in People v. Dunn (1976) 61 Cal.App.3d Supp. 12, 132 Cal.Rptr. 921 (Dunn ) is indistinguishable from that presented in this case. In Dunn,the defendant had a firearm in his suitcase at the airport, and was convicted of violating former section 12025, which provided as follows: “(b) Any person who carries concealed upon his person any pistol, revolver, or other firearm capable of being concealed upon the person without having a license to carry such firearm ... is guilty of a misdemeanor....” The former Appellate Department³ of the Los Angeles Superior Court rejected the defendant's argument that he did not carry the handgun on his person because it was in a suitcase, as opposed to being carried in a woman's purse, which the defendant conceded would violate the statute. “We hold 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 a violation of [former] section 12025.” (Dunn, supra, at p. 14, 132 Cal.Rptr. 921 ; see also People v. Overturf (1976) 64 Cal.App.3d Supp. 1, 6, 134 Cal.Rptr. 769 [“in the context of statutes concerned with firearms, ‘carry’ or ‘carrying’ has been said to be used in the sense of holding or bearing arms”]; People v. Smith (1946) 72 Cal.App.2d Supp. 875, 878, 164 P.2d 857 [“ ‘ “carries” or the words “to carry,” as used in the statutes defining the offense ..., are used in the sense of to have concealed about the person, or to bear concealed about the person; and it is necessary to a conviction of this offense only that the concealed weapon be so connected with the person that the locomotion of the body would carry with it the weapon as concealed’ ”].)

These California authorities are consistent with decisions in other states interpreting statutes similar to section 25850, subdivision (a). (See De Nardo v. State (Alaska Ct.App.1991) 819 P.2d 903, 908 [De Nardo's act of carrying a long-bladed knife in a briefcase constituted the concealment of a dangerous weapon “ ‘on his person’ ”].) “Case law from around the country supports the proposition that a person who carries a deadly weapon in a purse, a briefcase, or even a paper bag commits the offense of carrying a concealed weapon. (See, e.g., People v. Foster (1961) 32 Ill.App.2d 462, 178 N.E.2d 402, 404 [handgun in a zippered athletic bag]; State v. Britt (1978) 200 Neb. 601, 264 N.W.2d 670, 673 [handgun in a gymnasium bag]; Bell v. State (1986) 179 Ga.App. 790, 347 S.E.2d 725, 726 [handgun in a zippered shaving kit carried in the defendant's hand]; Schaaf v. Commonwealth (1979) 220 Va. 429, 258 S.E.2d 574 [handgun in a purse]; State v. Molins (Fla.Dist.Ct.App.1982) 424 So.2d 29, 30 [handgun in a zippered gun case within a zippered canvas suitcase]; Rogers v. State (Fla.Dist.Ct.App.1976) 336 So.2d 1233, 1234 [handgun in a briefcase]; State v. Straub (Mo.Ct.App.1986) 715 S.W.2d 21, 22 [handgun in a paper bag]; People v. Williams (1973) 15 Ill.App.3d 823, 305 N.E.2d 186, 187 [sawed-off rifle in a paper bag] ).” (De Nardo v. State, supra, at pp. 905–906, fn., omitted; see also State v. Anfield (1992) 313 Or. 554, 836 P.2d 1337, 1340 [agreeing “with the analysis of other courts that have concluded that the language, ‘upon the person,’ includes purses, handbags, bags, and their contents, when they are carried in the manner that defendant was carrying this bag”]; State v. Finlay (2002) 179 Or.App. 599, 42 P.3d 326, 328–329 [suitcase containing firearm at the airport was on the person of the defendant]; 43 A.L.R.2d 492 [“the majority of the cases support the statement that the defendant's carrying of a weapon hidden in a bag, bundle, lunch basket, traveling bag, or other similar article which is held in the hand...