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Name: Garber v. Superior Court
Case #: B212766
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 05/13/2010
Summary

In the context of Penal Code sections 12025 (carrying concealed firearm in a vehicle) and 12031 (carrying loaded firearm in public place), a vehicle that is used as a “place of residence” is not considered a residence when in transit, and therefore, does not fall within the exemption of Penal Code section 12026, permitting a firearm in a residence. Sorensen, an off-duty firefighter drove to a park to play softball with his friends. While waiting for his friends, he entertained himself by “driving around, playing in the dirt” in the parking lot. Witnesses said he drove at about 50 miles per hour, doing “donuts,” creating a dust storm, and coming close to petitioner’s vehicle. He eventually came to a stop and petitioner exited his vehicle, a van and trailer connected with a trailer hitch, and walked over to Sorenson. According to Sorenson, petitioner had a gun at his side and he became fearful and left. He returned shortly after when his friends had arrived and the police were summoned. A loaded handgun was found in a drawer next to the sink area of the trailer. Petitioner was charged with brandishing, carrying a concealed firearm in a vehicle, and carrying a loaded firearm in a public place. At trial, petitioner testified that he lived in the trailer, and he had driven to the park that day to walk his dog. The court refused to give a “place of residence” instruction and petitioner was convicted of carrying a concealed firearm in a vehicle, and carrying a loaded firearm in a public place. Penal Code section 12026 provides that the firearm prohibition does not apply anywhere within a person’s place of residence. The court observed that the primary purpose of the Weapons Control Law, implemented with the statutes at issue here, is to control the threat to public safety in the indiscriminate possession and carrying about of concealed and loaded weapons, and this purpose would be frustrated by interpreting “place of residence” to include any motor vehicle while “in transit” no matter what use is made thereof when parked on private property. According to the evidence in this case, the trailer was in transit at the time of the incident because it was in a park not used for camping and, by petitioner’s own testimony, he was at the park only temporarily to walk his dog. Consequently, the trailer was not a place of residence at the time of the incident.