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Name: People v. Tapia
Case #: B168657
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 05/31/2005
Subsequent History: rvw. den. 9/7/05

Tapia pointed a firearm at another motorist during a traffic dispute. When police officers went to his residence to investigate, they observed him standing on the sidewalk in front of his residence, where he removed a loaded handgun from his pocket and placed it in a vehicle in the driveway. He was convicted of possession of a firearm in a school zone in violation of Penal Code section 626.9. At trial, he argued that the sidewalk where he had been standing was private property and therefore section 626.9 was inapplicable. The jury was instructed that possession on private property was lawful, but was also instructed that the sidewalk in front of the address was not private property if it was open for public use. On appeal, Tapia contended that the instructions were erroneous and deprived him of the right to present a defense. The appellate court agreed that the second portion of the instruction was erroneous. However, as a matter of law, a sidewalk is not private property within the meaning of the statute, nor did the legislature intend to exclude sidewalks near schools from the statute. Because Tapia’s defense that the sidewalk was private property was not viable, the trial court did not infringe his right to present a defense. Further, even if the sidewalk had constituted private property, Tapia did not fall into the private property exception to the statute because it applies only if the possession occurred on private property and the possession of the firearm is otherwise lawful. Since the sidewalk was readily accessible to and used by the public, possession of the loaded firearm was not otherwise lawful. Finally, Penal Code section 626.9 is not unconstitutionally vague. The property was not of a sort that a reasonable citizen would understand to be private.