People v. Wade

• Decision Date: 09 May 2016
• Docket Number: No. S224599.,S224599.
• Citation: 369 P.3d 546,63 Cal.4th 137,201 Cal.Rptr.3d 876
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Appellant, v. Steven WADE, Defendant and Respondent.

63 Cal.4th 137

369 P.3d 546

201 Cal.Rptr.3d 876

The PEOPLE, Plaintiff and Appellant,

v.Steven WADE, Defendant and Respondent.

No. S224599.

Supreme Court of California

May 9, 2016.

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

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

CHIN, J.

Is a person wearing a backpack that contains a loaded revolver carrying a loaded firearm on the person? We conclude the answer is yes.

I. FACTS AND PROCEDURAL HISTORY

The Court of Appeal opinion authored by Justice Kriegler summarized the facts and procedural history in the superior court: "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." ’ "

The People appealed. Declining to apply Pellecer 's reasoning, the Court of Appeal reversed. It held that a person "wearing a backpack containing a firearm carries the firearm on his or her person."

We granted defendant's petition for review to resolve the apparent conflict between the Court of Appeal opinion of this case and Pellecer, supra, 215 Cal.App.4th 508, 155 Cal.Rptr.3d 477.

II. DISCUSSION

Section 25850, subdivision (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." (Italics added.)

Section 25850 is derived from former section 12031, subdivision (a), enacted in 1967, which made "every person who carries a loaded firearm on his person" guilty of a misdemeanor. (Stats.1967, ch. 960, § 1, p. 2459.) As the Court of Appeal in this case explained, "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). (§ 16000 et seq.) The Act is not intended to substantially 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, subds. (a)-(c).)" (Fn.omitted.)

Defendant concedes that he carried the loaded firearm, but he argues that, because it was in his backpack, it was not on his person. We disagree. The backpack was on his person and, accordingly, anything inside that backpack was also on his person. Case law strongly supports this conclusion.

Two California cases have considered similar questions: Pellecer, supra, 215 Cal.App.4th 508, 155 Cal.Rptr.3d 477, and People v. Dunn (1976) 61 Cal.App.3d Supp. 12, 132 Cal.Rptr. 921 (Dunn ). In Dunn, the defendant had a firearm in his suitcase at an airport. He was convicted of carrying a concealed firearm "upon his person" under former section 12025, subdivision (b) (now § 25400, subd. (a)(2)). Because the firearm was in a suitcase, he contended it was not "upon his person." The court disagreed. Citing the New York Court of Appeals decision in People v. Pugach (1964) 15 N.Y.2d 65, 255 N.Y.S.2d 833, 204 N.E.2d 176 (Pugach ), the court held that "a handgun concealed in a suitcase and carried by appellant is sufficiently ‘upon his person’ to constitute a violation of section 12025." (Dunn, at p. Supp.14, 132 Cal.Rptr. 921.) Pellecer, which we will discuss further below, reached a contrary conclusion regarding knives.

Cases from other states with similar statutory language are similar to Dunn, supra, 61 Cal.App.3d Supp. 12, 132 Cal.Rptr. 921. Indeed, cases postdating Dunn cite that case with approval. Defendant argues that these cases are not persuasive because they did not consider the intent of the California Legislature. It is true that the out-of-state decisions do not specifically consider California legislative intent. But they have persuasive value. "In resolving questions of statutory construction, the decisions of other jurisdictions interpreting similarly worded statutes, although not controlling, can provide valuable insight." (In re Joyner (1989) 48 Cal.3d 487, 492, 256 Cal.Rptr. 785, 769 P.2d 967.)

Pugach, supra, 255 N.Y.S.2d 833, 204 N.E.2d 176, concerned the legality of a frisk leading to the discovery of a concealed firearm. To determine whether the frisk was lawful, the court had to consider whether the defendant had committed the crime of carrying a firearm " ‘concealed upon his person.’ " (Id., 255 N.Y.S.2d 833, 204 N.E.2d at p. 178.) The defendant had carried a briefcase containing a loaded gun. The New York Court of Appeals concluded that the "[t]he loaded firearm concealed in the brief case carried in the hands of the defendant was in the language of the statute ‘concealed upon his person’...." (Ibid. )

In State v. Anfield (1992) 313 Or. 554, 836 P.2d 1337, the defendant carried a black bag containing two loaded pistols. In resolving a search and seizure question, the Oregon Supreme Court held that the defendant had violated a statute proscribing the carrying of a " ‘firearm concealed upon the person.’ " (Id. at p. 1340.) Citing Dunn, supra, 61 Cal.App.3d Supp. 12, 132 Cal.Rptr. 921, and Pugach, supra, 255 N.Y.S.2d 833, 204 N.E.2d 176, the court "agree[d] 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." (Anfield, at p. 1340.) It concluded that " [w]hile defendant held the bag, it and, necessarily, its contents were ‘upon the person’ of defendant." (Ibid. )

Similarly, in State v. Finlay (2002) 179 Or.App. 599, 42 P.3d 326, the defendant carried a firearm (this time unloaded) in a suitcase at an airport. Citing State v. Anfield, supra, 836 P.2d 1337, as well as Dunn, supra, 61 Cal.App.3d Supp. 12, 132 Cal.Rptr. 921, and Pugach, supra, 255 N.Y.S.2d 833, 204 N.E.2d 176, the appellate court held that the defendant had carried a firearm concealed " ‘upon the person.’ " (Finlay, at pp. 328–329.)

A case from Alaska contains the most detailed analysis. (De Nardo v. State (Alaska Ct.App.1991) 819 P.2d 903 (De Nardo ).) In De Nardo, the defendant carried an 11–inch–long knife in a briefcase. The appellate court affirmed his conviction of possessing a deadly weapon that was "concealed on the person." It cited "[c]ase law from around the country [that] 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." (Id. at p. 905.) It recognized that some of the cases it cited came from states with broader statutory language than " ‘on the person,’ " such as " ‘about the person.’ " (Id. at p. 906.) Citing Dunn, supra, 61 Cal.App.3d Supp. 12, 132 Cal.Rptr. 921, and Pugach, supra, 255 N.Y.S.2d 833, 204 N.E.2d 176, it "conclude[d], however, that the phrase ‘on the person’ is broad enough, without the additional word ‘about,’ to encompass weapons concealed either in clothing or in purses, briefcases, or other hand-carried containers." (De Nardo, at p. 906.)

De Nardo recognized the general rule that "when there is a question regarding the construction of a criminal statute, the statute must be construed in favor of the defendant and against the government." (De Nardo, supra, 819 P.2d at p. 907.) But it found the rule did not dictate a contrary result. "[T]his rule of lenity or strict construction comes into play only when, after employing normal methods of statutory construction, the legislature's intent cannot be ascertained or remains ambiguous. [Citations.] We have concluded that the legislature's intent on this issue can be ascertained." (Id. at pp. 907–908.) Accordingly, it held that the "act of carrying a long-bladed knife in a briefcase constituted the concealment of a dangerous weapon ‘on his person’...." (Id. at p. 908.)

The only out-of-state case defendant cites in support of his position is distinguishable. In State v. Humphrey (Okl.Crim.App.1980) 620 P.2d 408, 409, the defendant was convicted of carrying a pistol "on his person." The facts showed that as the defendant started to sit on a couch in the presence of police officers, the "officers observed a .45 caliber automatic pistol lying on the couch where the defendant was about to sit. The defendant was never seen carrying the pistol on his person...." (Ibid. ) Contrasting Oklahoma's statutory language " ‘on his person’ " with broader language used in some states such as " ‘about’ " or " ‘on or about the person,’ " the appellate court found these facts insufficient to support a finding that the pistol was "on his person." (Id. at p. 410.) Those facts, however, are entirely different than those here.

Defendant argues that Dunn, supra, 61 Cal.App.3d Supp. 12, 132 Cal.Rptr. 921, which concerned concealed...