People v. Wade

Filed 2/10/15
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B255894

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BA421048)
v.

STEVEN WADE,

Defendant and Respondent.

APPEAL from an order of the Superior Court of Los Angeles County. Clifford L.
Klein, Judge. Reversed.
Jackie Lacy, District Attorney, Phyllis C. Asayama and Scott D. Collins, Deputy
District Attorneys, for Plaintiff and Appellant.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and
Respondent.
_________________________
 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 (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, 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

1 All statutory references are to the Penal Code, unless otherwise indicated.
2
Cal.App.4th 1525, 1529.)” (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1072.)
“‘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.) 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.) 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.)” (People v. Robinson (2010) 47 Cal.4th 1104, 1138.)

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.)

2 Theearlier version of the Deadly Weapons Control Law is found in former
section 12000 et seq.
3
“[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, citing People v. Hodges (1999) 70
Cal.App.4th 1348, 1357, and People v. Hale (1974) 43 Cal.App.3d 353, 356.)
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), [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; see also People v. Marroquin (1989) 210
Cal.App.3d 77, 80-82 [former §12025 prohibiting carrying a concealed firearm does not
require operability].)
The issue in People v. Dunn (1976) 61 Cal.App.3d Supp. 12 (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

4
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; see also People v. Overturf (1976) 64 Cal.App.3d Supp. 1, 6 [“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 [“‘“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 (Ill. App.Ct. 1961) 178 N.E.2d
402, 404 [handgun in a zippered athletic bag]; State v. Britt (Neb. 1978) 264 N.W.2d 670,
673 [handgun in a gymnasium bag]; Bell v. State (Ga. Ct.App. 1986) 347 S.E.2d 725, 726
[handgun in a zippered shaving kit carried in the defendant’s hand]; Schaaf v.
Commonwealth (Va. 1979) 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

3 The former Appellate Department is now referred to as the Appellate Division.
5
[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 (Ill. App.Ct. 1973) 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 (Or. 1992) 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 (Or. Ct.App. 2002) 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 or placed under the arm, is generally sufficient to
constitute a transgression of the statute”].)
The decision of the United States Supreme Court in Muscarello v. United States
(1998) 524 U.S. 125 reaches the same result as the decisions of the state courts. The
court held that “carries a firearm” is not limited to carrying it on the person. “No one
doubts that one who bears arms on his person ‘carries a weapon.’ But to say that is not to
deny that one may also ‘carry a weapon’ tied to the saddle of a horse or placed in a bag in
a car.” (Id. at p. 130.)

People v. Pellecer

For 37 years, the holding in Dunn, supra, 61 Cal.App.3d Supp. 12, went
unquestioned in California and courts in other states. Dunn’s acceptance ended in 2013
with Pellecer, supra, 215 Cal.App.4th at pages 510-511, which held that the prohibition
against carrying a concealed dirk or dagger on the person in former section 12020 (now
section 213104) did not apply where the defendant was found leaning on a backpack

4Section 21310 provides in pertinent part as follows: “[A]ny person in this state
who carries concealed upon the person any dirk or dagger is punishable by imprisonment
6
containing three knives, because “the knives in his backpack were not carried on his
person.” The trial court in this case concluded it was bound by Pellecer, because in this
case, as in Pellecer, the prohibited weapon was found inside a backpack.
“The ordinary meaning of ‘upon his or her person’ is on the body or in the
clothing worn on the body,” as distinguished from being “on or about the person,”
according to dictionary definitions cited in Pellecer, supra, 215 Cal.App.4th at page 513.
“The knives in defendant’s backpack may have been on or about defendant’s person, but
the statute does not criminalize carrying a dirk or dagger on or about the person, only
carrying a dirk or dagger ‘upon’ the person.” (Ibid.) The Pellecer court emphasized that
the statutory language applies to a defendant “only if he or she ‘[c]arries concealed upon
his or her person any dirk or dagger’” and if the legislature intended to criminalize
carrying a dirk or dagger in a backpack or other container “it could have fully expressed
it by phrasing former subdivision (a)(4) as ‘carries any concealed dirk or dagger.’”
(Ibid.)
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. (Pellecer, supra, 215 Cal.App.4th at
pp. 514-515.) According to the cited legislative history, the amendment was considered
unnecessary because such conduct was not criminal under existing case law. (Id. at p.
515.) Significantly, that purported case law is not cited in either the legislative history, or
in Pellecer.
Pellecer, supra, 215 Cal.App.4th at pages 516-517, rejected the Attorney
General’s5 reliance on Dunn, supra, 61 Cal.App.3d Supp. 12, for the proposition that a
weapon carried in a backpack is carried concealed upon the person. Pellecer criticized

in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of
Section 1170.”

5
The Attorney General did not petition the California Supreme Court for review
of the decision in Pellecer. The instant appeal is brought by the District Attorney of Los
Angeles County.
7
the Dunn court’s citation to People v. Pugach (1964) 255 N.Y.S.2d 833 (Pugach), which
the Pellecer described as a search and seizure case. (Pellecer, supra, at p. 516.) In
determining the legality of the search in Pugach, New York’s highest court affirmatively
described substantive New York law as follows: “The 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’ (Penal Law, § 1897.)” (Pugach, supra, at p. 836.) A
discussion of substantive New York law was required in Pugach to resolve the search and
seizure issue, and we disagree with Pellecer’s unduly narrow reading of the case. As
added criticism of Dunn, the Pellecer court stated that while Pugach may reflect the
intent of the New York Legislature as to the meaning of the statutory phrase “concealed
upon his person,” that “intent cannot be automatically imputed to the California
Legislature” and Dunn did not examine the legislative history of former section 12025
“to determine whether ‘carries concealed upon his persons’ included a container such as
Dunn’s suitcase.” (Id. at pp. 516-517.) But the Dunn court never suggested that Pugach
described California’s legislative intent. The interpretation of a similar statute by a
highly regarded court of another state was persuasive authority that assisted in
interpreting California law.
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).
Furthermore, 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. While “[a] knife carried in a sheath that is worn openly

8
suspended from the waist of the wearer is not concealed within the meaning of Section . .
. 21310” (§ 20200), a firearm may not be worn openly in a public place or in a vehicle (§
26350, subd. (a)(1).) Thus, assuming Pellecer correctly defines the scope of former
section 12020, involving knives, it does not follow that the same interpretation applies to
section 25850, subdivision (a).
Finally, we reject defendant’s reliance on the rule of lenity. The rule of lenity
applies where there is an “egregious ambiguity” as to the meaning of a statute. (People v.
Avery (2002) 27 Cal.4th 49, 58.) Section 25850, subdivision (a), is not egregiously
ambiguous. Courts of this state and other states that have considered the meaning of
similar statutes consistently conclude that a person carrying a concealed firearm in an
object such as a suitcase, purse, or bag, carries the weapon concealed on the person. The
only uncertainty in this area is the result of the decision in Pellecer, which does not
control the interpretation of section 25850, subdivision (a).

DISPOSITION

The order setting aside the charge of violating Penal Code section 25850,
subdivision (a), is reversed.

KRIEGLER, J.

I concur:

MOSK, Acting P. J.

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Goodman, J., Concurring

I fully concur. 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.

GOODMAN, J.

 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.