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Name: People v. Wade
Case #: B255894
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 02/10/2015
Subsequent History: Review granted 4/29/2015: S224599

Defendant wearing a backpack containing a loaded firearm “carries a loaded firearm on the person” within the meaning of Penal Code section 25850, subdivision (a). Wade was charged with carrying a loaded firearm on his person (Pen. Code, § 25850, subd. (a)). During the preliminary hearing, it was established that Wade was wearing a backpack with a loaded revolver inside. Relying on People v. Pellecer (2013) 215 Cal.App.4th 508 (holding that a knife carried in a backpack is not carried “on the person”), the trial court granted Wade’s Penal Code section 995 motion to dismiss, finding Wade did not carry the firearm on his person. The People appealed. Held: Reversed. Prior to Pellecer, People v. Dunn (1976) 61 Cal.App.3d Supp. 12, interpreted a similar statute (former Pen. Code, § 12025) and held that a defendant who had a firearm in his suitcase at an airport was carrying it “upon his person.” Courts in other states as well as the United States Supreme Court have reached similar conclusions. (See, e.g., Muscarello v. United States (1998) 524 U.S. 125, 130.) The Court of Appeal in this case determined that “the holding in Dunn is consistent with the purpose of the Act, which is to prevent a person from carrying a readily accessible concealed firearm.” Furthermore, Pellecer is distinguishable in two respects. First, the defendant in Pellecer, unlike Wade, was not carrying the backpack, he was leaning against it. Second, Pellecer was interpreting the dirk or dagger statute (former Pen. Code, § 12020) and not the language in the firearm statute (Pen. Code, § 25850, subd. (a)), and the Legislature treats the public possession of dirks and daggers differently than firearms. (Compare former Pen. Code, § 20200 [allowing a knife carried in a sheath to be worn openly] with Pen. Code, § 26350 [prohibiting a firearm from being worn openly in public or a vehicle].)