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Name: In re D.D.
Case #: A140704
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 02/23/2015
Summary

Although minors are prohibited from possessing a concealable firearm, this does not mean a minor’s commission of such offense is automatically punishable as a felony under Penal Code section 25400, subdivision (c)(4). Police approached and questioned D. when they saw him smoking marijuana. They patted him down and found a loaded automatic firearm. A petition charging him with the felonies of carrying a loaded (Pen. Code, § 25850, subd. (a)) concealed (Pen. Code, § 25400, subd. (a)(2)) firearm in public was found true. The juvenile court found the offenses were mandatory felonies. On appeal, D. challenged this finding. Held: Reversed and remanded. Possession of a concealed firearm is punishable as a felony “[i]f the person is not in lawful possession of the firearm or the person is within a class of persons prohibited from possessing or acquiring a firearm pursuant to” specified provisions (Pen. Code, § 25400, subd. (c)(4)). “Lawful possession” means the person who has possession either lawfully owns the gun or has the owner’s permission to possess it (Pen. Code, § 16750). Although minors are prohibited from possessing concealable firearms (Pen. Code, § 29610), there is no express language in sections 25400, subdivision (c)(4) or 16750, subjecting minors to automatic felony punishment for carrying concealable firearms. Section 25400, subdivision (c)(4) declares it a felony for persons subject to specified chapters of the Penal Code to carry concealed weapons, but omits the chapter entitled “Juveniles” that includes section 29610. There is nothing in the legislative history of section 25400 which reflects an intent to render minors in possession of a concealable firearm automatically subject to a felony disposition—this would be inconsistent with section 29700, which provides for either felony or misdemeanor treatment of a minor found to be in possession of a concealable weapon. This same analysis applies to section 25850 (carrying loaded gun in public).