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Name: In re M.G.
Case #: A139471
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 08/14/2014
Summary

Although minors may not legally possess a concealable firearm, this does not mean a minor’s possession of a concealed firearm is automatically punishable as a felony under Penal Code section 25400, subdivision (c)(4). During a search of M.G.’s backpack, police found a firearm and bullets. After his motion to suppress was denied, M.G. admitted carrying a concealed firearm in violation of section 25400, subdivision (a)(2), which is a wobbler. On appeal, M.G. argued that the juvenile court erred by declaring the offense a felony. Held: Remanded for further proceedings. 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 weapon or has the permission of the owner to possess it (Pen. Code, § 16750). The appellate court disagreed with the Attorney General’s claim that felony treatment was required because all minors are prohibited from possessing concealable firearms (Pen. Code, § 29610) and this prohibition, read in conjunction with the definition of “lawful possession” rendered the offense a felony once M.G. admitted carrying a concealed weapon. There is no express language in section 25400, subdivision (c)(4) or section 16750 subjecting minors to automatic felony punishment for carrying concealable firearms. Section 25400, subdivision (c)(4) expressly 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. Further, 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. Such an interpretation is also inconsistent with Penal Code section 29700, which provides that the offense of a minor found to be in possession of a concealable weapon shall be punished either as a felony or a misdemeanor. Here, there were no facts to show that M.G. did not have “lawful possession” of the firearm as defined by section 16750, or that he would have been subject to mandatory felony punishment had his offense been committed by an adult.