IF A LOADED GUN IS IN A BACKPACK, IS IT BEING CARRIED “ON A PERSON?”
On May 9, 2016, the California Supreme Court held, in People v. Wade, that if a person is wearing a backpack which contains a loaded gun, he/she is carrying a loaded gun “on the person” in violation of Penal Code Section 25850(a).
Facts
The defendant was wearing a backpack containing a loaded revolver while being pursued by a police officer. He was charged with carrying a loaded firearm on his person. 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.’”
The People appealed; the Court of Appeal declined to apply Pellecer’s reasoning, and reversed. It held that a person “wearing a backpack containing a firearm carries the firearm on his or her person.” The Supreme Court granted defendant’s petition for review to resolve the apparent conflict between the Court of Appeal opinion of this case and Pellecer.
Court Discussion
The Supreme Court stated that, “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.”
“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.’” (Emphasis added.)
“Two California cases have considered similar questions: Pellecer and People v. Dunn (1976) 61 Cal.App.3d Supp. 12 (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) 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.”
“Defendant argues that [out of state] 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 a case from Oregon, State v. Anfield (Or. 1992) 836 P.2d 1337, the defendant carried a black bag containing two loaded pistols. The Anfield 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.’ It concluded that ‘[w]hile defendant held the bag, it and, necessarily, its contents were ‘upon the person’ of the defendant.”
The court discusses other out of state decisions including a case from Alaska, DeNardo v. State, (1991) 819 P.2d 903, in which 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.”
The court stated that “[c]ase 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.”
Wade “agrees that carrying a loaded firearm in clothing would violate Section 25850, but he distinguishes a gun in clothing from a gun in a container. The distinction is untenable. 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.”
The trial court relied on People v. Pellecer which held that a knife contained in a backpack is not carried on the person, but that case can be distinguished from Wade.
“In that case, the defendant was seen ‘leaning on a closed backpack’ that contained three knives. He was convicted of carrying a dirk or dagger concealed ‘upon his or her person’ under former Section 12020, subdivision (a)(4) (now § 21310). The Court of Appeal reversed the conviction, finding that ‘defendant did not violate the statute because the knives in his backpack were not carried on his person.’”
However, the Supreme Court found that Pellecer was factually distinguishable. “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. (W)e disapprove People v. Pellecer, to the extent its analysis is inconsistent with this opinion, although not necessarily its holding.”
HOW THIS AFFECTS YOUR AGENCY
This is a fairly fact specific case dealing with possessing a loaded gun when it is not actually “on the person” as we normally think of that.
As noted, however, if it is in a container, whether it is a suitcase, purse, or bag, being held by the defendant, the courts have ruled that, then, the person carried the firearm “on his person.”
In the instant case, what was significant to the court was the fact that the gun was in a backpack which the defendant was wearing. That distinguished it from the Pellecer case where the defendant was not wearing the backpack, but merely leaning against it. Each case would need to be based on the specific facts involved.
As always, when dealing with legal issues it is imperative to seek out and secure advice and guidance from your agency’s designated legal advisor.
If you wish to discuss this case in greater detail, please feel free to contact me at (714) 446 -1400 or via email at mjm@jones-mayer.com.
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