PEOPLE v. WADE

Respondent’s Petition for Review

Cal.March 13, 2015

~ $224599 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA,) Appeal No. ) B255894 Plaintiff and Appellant, ) ) Los Angeles No. VS. ) BA421048 ) STEVEN WADE, ) ) Defendant and Respondent. ) ) PETITION FOR REVIEW Petition for Review following Published Opinion of the SecondDistrict Court of Appeal, Div. 5, B255894 Appeal!from the Superior Court, Los Angeles County, BA421048 Hon.Clifford L. Klein, Judge Jean Ballantine, SBN 93675 12405 Venice Boulevard, #139 Los Angeles, CA 90066 Tel. (310) 398-5462 Email: ballantine093675@gmail.com Attorney for Respondent Steven Wade By Appointment of the Court of Appeal Topical Index Table of Authorities Petition for Review Issues Presented for Review Necessity for Review Statementof the Case Statement of Facts Argument I. TheStatute at Issue. I. Relevant Principles of Statutory Construction. A. Effectuate the Purpose of the Law. B. The Statute’s Plain Meaning Controls. C. Avoid Constructions That Render Words Superfluous. D. Where there are True Ambiguities, Resolve Them by Examining Legislative History and the Statutory Scheme as a Whole in an Attemptto Harmonizeits Provisions. E. Resolve Ambiguities in Favor of a Criminal Defendant. If. |The Purpose of the Deadly WeaponsAct in General and of Section 25850(a) in Particular. Topical Index (cont.) A. Section 25850(a) Was Not Enacted asPart of a Comprehensive Legislative Plan with a Broad Statutory Purpose of Outlawing All Public Possession of Firearms. B. Sections 25505 and 25610 are Exemptions Which Relate to Carrying a Concealed Firearm (Chapter 2 of Pen. Code,Part 6,Title 4, §§ 25400-25700), and Do Not Demonstrate a Legislative Plan to Override the Plain Language of the Statutes Prohibiting Carrying a Loaded Firearm (Ch. 3 of Pen. Code,Part 6, Title 4, §§ 25800-16100.) IV. Section 25850(a) is Clear on its Face as Written. “On the Person” is Restrictive Language Which Distinguishes the Conduct Criminalized in Section 25850(a) from Being “Armed” or Carrying a Weapon in a Container. V. “Carries” Should Not Be Liberally Construed to Ignore the Restrictive Modifier, “On the Person.” VI. People v. Dunn (1976) 61 Cal.App.3d Supp. 12, Was Incorrectly Decided. VII. People v. Pellecer (2013) 215 Cal.App.4th 508, While Distinguishable from the Present Case Conclusion Word Count Exhibit A - Opinion Proof of Service -ii- 15 20 23 31 32 32 Table of Authorities Cases Page Bell v. State (1986) 179 Ga.App.790 [347 S.E.2d 725] .............. 27 Briggs v. Eden Council for Hope,etc. (1999) 19 Cal4th 1106........ 12 Burden v. Snowden(1992) 2 Cal.4th 556, 562 ..................04. 12 Burrage v. United States (2014) _U.S.__ [134S.Ct. 881] ............. 8 Cortez v. Purolator Air Filtration Products (2000) 23 Cal.4th 163 ..... 12 DeNardov.State (1991) 819 P.2d 903 ........ 2 eee ee eee 26-29 Dix v. Superior Court (1991) 53 Cal.3d 442 22... eee eee 7 In re Bergen (1923) 61 Cal App. 226 ....... 2.0... cece cee eee 21 In re Jerry R. (1994) 29 Cal App4th 1432 20... 0... eee eee 12 In re Martinez (1978) 86 Cal App.3d 577 2.0.0.0... 0. cee ce eee es 9 Muscarello v. United States (1998) 524 U.S.125 ..............0.080. 22 People v. Arias (2008) 45 Cal 4th 169.000... eeeee6,7 People v. Baker (1968) 69 Cal.2d 44 2.0.2.0...eee7,13 People v. Bland (1995) 10 Cal 4th 991 1.0...eee 15 People v. Castenada (2000) 23 Cal.4th 743 .............. 0.000 eee 6 People v. Coker (2004) 120 Cal App.4th 581 ..................086. 31 People v. Davis (1981) 29 Cal.3d 814 2.0... cee eee eee 8. People v. Douglas (2000) 79 Cal.App.4th 810 ................... 8, 23 People v. Dunn (1976) 61 Cal App.3d Supp.12 ................ 23-25 -ili- Cases People v. People v. People v. Peoplev. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. Peoplev. Peoplev. Table of Authorities (cont.) Page Foster (1961) 32 Ill. App.2d 462 ........ 0.0.2... eee eee 27 Francis (1969) 71 Cal.2d 66,78 2.0.0.0... eee cee eee eee 12 Frawley (2000) 82 Cal.App.4th 784 ................ 7, 18,29 Gohdes (1997) 58 Cal.App.4th 1520 ..................04. 18 Guzman (2005) 35 Cal4th 577 2.0.2.2... eee ee eee 17, 18 Hagedorn (2005) 127 Cal.App.4th 734 ................... 23 Horn (1998) 68 Cal .App4th 408 .....................006. 8 Martinez (1999) 76 CalApp4th 489 .............0...00.. 11 McDonald (2006) 137 Cal-App.4th 521 ............... 18,19 McElroy (1897) 116 Cal. 583 2.0... eee ee ee eee ee 30 Melton (1988) 206 Cal.App.3d 580 ...............0..00005. 9 Mitchell (2012) 209 Cal _App.4th 1364 ................... 30 Nelson (2011) 200 Cal _App-4th 1083 .............. 11, 31,32 Overturf (1976) 64 Cal_App.3d Supp. 1 ................0.. 21 Pellecer (2013) 215 Cal.App.4th 508 ...... 2, 18, 23, 25, 26, 31 Perez (2001) 86 Cal App.4th 675 .. .Lect e eee eee eens 11 Pugach (1964) ISN.Y.2d65 0...eeeee ee 25 Robles (2000) 23 Cal4th 1106 ................ 0.00008. 6,7 Smith (1946) 72 Cal.App.2d Supp. 875 ......... 0.020000. 21 -|V- Table of Authorities (cont.) Cases Page People v. Smith (1992) 9 Cal App.4th 196 ............0.....0..008. 16 People v. Squadere (1978) 88 Cal.App.3d Supp.1 ................. 30 People v. Superior Court (American Standard) (1997) 14 Cal 4th 294 ... 23 People v. Superior Court (Cervantes) (2014) 225 Cal.App.4th 1007 . 16-17 People v. Superior Court (Pomilia) (1991) 235 Cal.App.3d 1464... . 16-17 People v. Vaughn (2014) 230 Cal .App.4th 322 ..................... 10 People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621 .............. 13 People v. Williams (1973) 15 Ill.App.3d 823 ..................000. 27 People v. Yarbrough (2008) 169 Cal. App.4th 303 .................. 16 Rogersv. State (1976) 336 So.2d 1233 2.0.2...ec cee eee eee 27 Security Pacific National Bank v. Wozab (1990) 51 Cal.3d991 ....... 17 State v. Anfield (1992) 313 Ore. 554.....0. 000. cece ce eee eee 29 State v. Britt (1978) 200 Neb. 601 ............ 0.0... ccc cee eee eee 27 State v. Molins (1982) 424 So.2d 29 2.0...ec cc eee eee 27 State v. Straub (1986) 715S.W.2d21 2.0... cece eee 27 State v. Finlay (2002) 179 Ore.App. 599.0... 0.0.00. eee eee eee 29 United States v. Bass (1971) 404 U.S.336 ............. 0.00.00. 23 Wardenv.State Bar (1999) 21 Cal.4th 628 ....................0... 10 Table of Authorities (cont.) Statutes and Court Rules Page California Rules of Court Rule 8.500 ...... ccc ccc cee ee eee teen tee eene 1-3 Code of Civil Procedure Section 1858 2... ccc cee eee ee eee ete eens 17 Penal Code Section 4 .... ccc ccc ccc cece eee eter eee e ee eee nees 6 Section 374.4(C) 22... ccc ccc eee eee ne eee e ee eaee 19 Section 12020(a)(4) 0.0... cece eee cece eee rete ee eens 30 Section 12022(c) .. 02... cece cee eee eee eee tees 15-16 Section 12022.53 2... ccc eee eee eee ences 11 Section 12025 .. 20... 0. ceecee eee eee ee eeaee 24 Section 12026.1(a) 2.0... ccc cece eee ee ce ee terete eee n ees 14 Section 12026.2(b) ....... ccc eee ec eee eee ee eee e eae 14 Section 12031(a)(1) (former) .............0-65 4-6,9, 11, 14,21 Section 16005 2.2...ccc ec ee eee eee eeee 4,10 Section 16010 .. 22... ccccee ne ee tee e tenes 4 Section 16020 ...... 0... ccceeeee eee 5-6, 10 Section 16530 2.0... ccc eee ec ene nee neces 20 Section 16590 ...... 0... ccc ce ce eee eee reece teens 9 Section 25300 ..... ccc cc eee cee eee rece eee renee 9 Section 25400 1.0...cceee cece eet eee eens 9,20 Section 25505 ..........-.008-eee e cece eee e eee enna 13-14 Section 25610 2... cc ccc eee eee eee eeee 13-14 Section 25850 oeee eee eters 1,2,6,9, 11-15 Section 25850(a) ... 2... eee eee eee eee 3-4, 10, 14, 20, 22, 32 Section 29610 .. 2... cc ccc ee cree eee eee e ener eens 20 Vehicle Code Section 23122 2. icc ec cc ec te cee eee eee een enna 30 United States Code 18 U.S.C. § 924(c)(1)(a) ow ec eee ce eee eens 22 -Vi- Table of Authorities (cont.) Constitutions Page California Constitution Article 1,Section 7 2... 0... ecee cette eee 23 United States Constitution Fourteenth Amendment ............. 2.00. c ee eee eee eee 2,23 Other Authorities Attorney General Opinions 51 Ops.Cal. Atty.Gen. 197, 198 (1968) .................0. 11,14 Black’s Law Dictionary (5th ed. 1979), p.983 ...............-200-- 20 Webster’s 3d New Internat. Dict. (1993), p. 1686 ................... 20 -Vii- No. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Court of Appeal No. B255894 Plaintiff and Appellant, vs. STEVEN WADE, BA421048 ) ) ) ) ) ) Superior Court No. ) ) Defendant and Respondent. ) ) PETITION FOR REVIEW After Published Decision of the Court of Appeal, Second Appellate District, Division Five Reversing Judgment in Superior Court No. BA421048 Hon. Clifford L. Klein, Judge To the Honorable Chief Justice, and to the Honorable Associate Justices of the California Supreme Court: Pursuantto rule 8.500, California Rules of Court, defendant-respondent Steven Wade (defendant) seeks review of the published opinion of the Court of Appeal, Second Appellate District, Division Five, filed in appeal number B255894 on February 10, 2015 (Exhibit A hereto), which reverses the judgmentofthe trial court dismissing the case on a finding that defendantdid not carry a firearm on his person within the meaning of Penal Codesection 25850, subdivision (a) as construed in People v. Pellecer (2013) 215 Cal.App.4th 508. The opinion is contrary to federal due processprinciples that it is for the Legislature, and not the courts, to define criminal activity, and established rules of statutory construction that require courts to avoid constructions that render words superfluous and to resolve perceived ambiguities in favor of a criminal defendant. Review is sought pursuantto rule 8.500, subdivision (b)(1), to secure uniformity of decision andto settle the important questions of law presented in this case. ISSUES PRESENTED FOR REVIEW (Rules 8.500 and 8.504) 1. Does the appellate court’s construction of Penal Codesection 25850, subdivision (a) violate federal due process underthe FourteenthAmendment to the United States Constitution, becauseit is for the Legislature, and not the court, to define criminal activity? 2. Does “on the person” as used in Penal Code section 25850, subdivision (a), which criminalizes carrying a loaded firearm “on the person or in a vehicle while in any public place...” mean that the firearm mustbe in direct contact with the person or in the clothing the person is wearing, or does “on the person” have a broader meaning and include a firearm within a container carried by the person, such as a backpack? 2 NECESSITY FOR REVIEW Review is necessary to secure uniformity of decision, and to settle and clarify existing law on the issues stated herein. (California Rules of Court, rule 8.500(b)(1).) STATEMENT OF THE CASE An information filed March 4, 2014 charged Wade in count | with carrying a loaded unregistered handgun onthe person in violation of Penal Code section 25850(a)', a felony. Count 2 charged misdemeanorresisting arrest and ts not at issue herein. (CT 20-21) Wade pleaded not guilty. (CT 24) After the preliminary hearing (CT 1B-18), the trial court granted Wade’s motion to dismiss count |. (CT 1B-18, 42; RT, B3-4) The prosecution appealed. (CT 86-88) STATEMENT OF FACTS The following factual summary is based on the evidence adducedat the preliminary hearing. At 2:45 p.m. on February 2, 2014, LAPD officer Sforzini and his partner were on patrol in a markedpolice car at 55th Street and Normandiein Los Angeles. (CT 3-4) Sforzini saw Wadewalk outof a liquor store. (CT 4) Sforzini had prior contacts with Wade and decided to conduct a consensual 'Further unspecified statutory references are to the Penal Code. 3 encounter with him. (CT 4) As Sforzini exited his patrol car, Wade ran down a nearby alley. Sforzini gave chase, ordering Wadeto stop. (CT 4) Wade was wearing a blue and gray backpack. Ashe ran, he removed the backpack,threw it over a fence, and continued running. (CT 5) Sforzini lost sight of Wade. (CT 14) Theofficers set up a perimeter and called in backup and a canine unit. Aboutan hour later, Wade waslocated and taken into custody. (CT 5-6) Aboutfive minutesafter Sforzini saw Wade throw the backpack, he and his partner retraced their route and recovered a black and gray backpack from the yard of a residence. The backpack’s zipper was halfway open. Inside was an unregistered loaded .38 Smith & Wesson revolver. (CT 6-7, 15) ARGUMENT I. The Statute at Issue. Section 25850(a) makesit unlawful for an individual to carry a loaded firearm “on the personor in a vehicle while in any public place ...” Section 25850 took effect January 1, 2011, as part of the Deadly Weapons Recodification Act(the Act.) (Stats. 2010, ch. 711, effective Jan. 1.2012, see §§ 16000 et seg.) Section 25850(a) is a continuation of former section 12031(a)(1), without substantive change. (§§ 16005, 16010.) Like the present statute, section 12031, subdivision (a)(1) (hereafter, § 12031(a)(1)) madeit unlawful for an individual to carry a loaded firearm “on his or her person or in a vehicle while in a public place.” (Former § 12031(a)(1).) The District Attorney correctly points out that in reorganizing the deadly weaponstatutes in 2010, the Legislature stated in section 16020: “(a) A judicial decision interpreting a previously existing provision is relevant in interpreting any provision of [the 2010 reorganization], which restates and continues that previously existing provision. (AOB 6) However,the District Attorney fails to note that the Legislature also specifically stated in section 16020thatits reorganization of the statutes did not constitute any evaluation or approval of prior judicial decisions interpreting the weaponsstatutes: (b) However, in enacting the Deadly Weapons Recodification Act of 2010, the Legislature has not evaluated the correctness of any judicial decision interpreting a provision affected by the act. (c) The Deadly WeaponsRecodification Act of 2010 is not intended to, and does not, reflect any assessment of any judicial decision interpreting any provision affected bythe act.” (§ 16020, subds. (b) & (c).) The Law Revision Commission Commentsto section 16020,operative January |, 2012, confirm that: Subdivision (a) of Section 16020 makesclear that case law construing a predecessorprovisionis relevantin construing its successor in the Deadly Weapons Recodification Act of 2010. Subdivisions (b) and (c) makeclear that in recodifying formerSection 12000-12809, the Legislature has not taken any 5 position on any case interpreting any of those provisions. [38 Cal.L.Rev.Comm.Reports 217 (2009).] (West’s California Penal Code (2011 ed.), § 16020, Law Revision Commission Comments,p. 1548.) Thus,the Legislature’s recodification of former section 12031(a)(1) at current section 25850 does not demonstrate an approvalof prior or existing judicial practices and interpretations of section 12031(a)(1). II. Relevant Principles of Statutory Construction. A. Effectuate the Purpose of the Law. Penal Codesection 4 states: “The rule of the common law, that penal statutes are to be strictly construed, has no application to this Code. All its provisionsare to be construed accordingto the fair import of their terms, with a view to effect its objects and to promote justice.” B. The Statute’s Plain Meaning Controls. To effectuate the law’s purpose, courts look to the statute’s words and give them their usual and ordinary meaning. The statute’s plain meaning controls the court’s interpretation unless its words are ambiguous. (Peoplev. Arias (2008) 45 Cal.4th 169, 177.) If the language contains no ambiguity, the court presumes the Legislature meant whatit said, and the plain meaning of the statute governs. (People v. Robles (2000) 23 Cal.4th 1106, 1111, citing People v. Castenada (2000) 23 Cal.4th 743, 747.) In this regard, the California Supreme Court has said that it “does not lightly assume drafting error by the Legislature. (People v. Robles, supra, 23 Cal 4th 1106, 1114.) C. Avoid Constructions that Render Words Superfluous. In construing statutory language, courts must avoid a construction which renders the language superfluous or unnecessary. (Dix v. Superior Court (1991) 53 Cal.3d 442, 459; People v. Frawley (2000) 82 Cal.App.4th 784,789.) A statute cannotbe enlarged byinserting or deleting words. “Such a practice makesit impossible for anyoneto rely on the written word of the Legislature and only adds confusion to the already difficult task of drafting statutes.” (People v. Baker (1968) 69 Cal.2d 44, 50.) D. Where there are True Ambiguities, Resolve Them by Examining Legislative History and the Statutory Scheme as a Whole in an Attempt to Harmonizeits Provisions. If statutory language is susceptible of more than one reasonable construction, the court can look tolegislative history in aid of ascertaining legislative intent. (People v. Robles, supra, 23 Cal.4th at 1111.) And if the words in the statute do not, by themselves, provide a reliable indicator of legislative intent, “[s]tatutory ambiguities often may be resolved by examining the context in which the language appears and adoptingthe construction which best serves to harmonize the statute internally and with related statutes.” (People v. Arias, supra, 45 Cal 4th 169, 177.) E. Resolve Ambiguities in Favor ofa Criminal Defendant. Under the “rule of lenity,” when statutory languageis truly ambiguous and there is no extrinsic indicia of legislative intent, courts are required to construe a criminal law “as favorably to the defendantas its language and intent will reasonably permit.” (People v. Horn (1998) 68 Cal.App.4th 408, 419.) “ ‘The defendantis entitled to the benefit of every reasonable doubt, whetherit arise out of a question of fact, or as to the true interpretation of > 99wordsor the construction of language used in a statute.’ (People v. Davis (1981) 29 Cal.3d 814, 828.) This “rule of lenity” is an appropriate “tie- breaker” when there are two equally plausible interpretations of a law thatis truly ambiguous. (People v. Douglas (2000) 79 Cal.App.4th 810, 815.) In Burragev. United States (2014) __U.S.___ [134 S.Ct. 881, 891, L.Ed.3d J, the United States Supreme Court recently applied the rule of lenity, noting that wherelegislators could have written the law in one way, but choseinstead to use more restrictive language, “we cannot give the text a meaning that is different from its ordinary, accepted meaning, and that disfavors the defendant.” Ill. The Purpose of the Deadly WeaponsAct in Generaland of Section 25850(a) in Particular. The overriding general purpose of the Act as a whole is to protect public safety. (People v. Melton (1988) 206 Cal.App.3d 580, 589.) The Act controls both what types of weapons maybepossessed by anyone(see,e.g., § 16590 defining generally prohibited weapons), and the possession of weaponsby certain classes of persons or undercertain conditions (e.g., § 25300, carrying a firearm in public while masked; § 25400, carrying a concealed firearm; § 25850,carrying a firearm on the person or ina vehiclein public). (/n re Martinez (1978) 86 Cal.App.3d 577, 581.) By criminalizing the carrying of a loaded weapon on the person in public in section 25850(a), the Legislature demonstrated its intent to protect the public from individuals having immediate access to a firearm carried directly on the person or in the individual’s clothing. The statutory language is clear and our Legislature knows howto criminalize “possession” or being “armed” with a weapon, as distinguished from carrying a weapon “on the person.” Section 25850(a) and its predecessor, section 12031(a)(1), criminalize only carrying loaded weaponsdirectly on the person or in the person’s clothing. A. Section 25850(a) Was Not Enacted as Partofa Comprehensive Legislative Plan with a Broad Statutory Purpose of Outlawing All Public Possession of Firearms. Thestatute is contained in the “Deadly WeaponsRecodification Act of 2010” (“the Act’), which recodifies the provisions of former Title 2 (commencing with Section 12000) of Part 4 of the Penal Code, which was originally enacted in 1953 as the Dangerous Weapons’ Control Law (former §§ 12000-12520). (See, § 16000; People v. Vaughn (2014) 230 Cal _App.4th 322, 330.) | The 2010 Act specifically did not purport to evaluate the existing statutory provisionsor the case law interpreting them. (§ 16020, subds. (b) & (c).) The Act did not create a new, comprehensiveplan to regulate firearms or to outlaw all public possession of firearms. Rather, the Act was “solely intended to makethe provisions governing control of deadly weapons more user-friendly.” (West’s Pen. Code, § 16005, Law Revision Commission Comments.) Thestatutes within the Act have been amended numeroustimes over the decades, by the addition and amendmentofstatutes as the need is perceived by the Legislature and in response to certain events and the perceived needs of society. (People v. Vaughn, supra, 230 Cal.App.4th 322, 330; Wardenv. State Bar (1999) 21 Cal.4th 628, 644 [“Evils in the same field maybeof different dimensions and proportions, requiring different remedies. 10 Orso the legislature may think. ... Or the reform may take onestep at a time, addressingitself to the phase of the problem which seems most acute to the legislative mind.”]) For example,the statute at issue here, former section 12031 (now § 25850), was enacted by the 1967 Legislature as an urgency measure after membersof the Black Panther organization entered the Assembly Chambers openly carrying in their hands, “ ‘pistols, rifles and at least one sawed-off shotgun,’ all to the great alarm of the members of the Assembly.” (51 Ops.Cal. Atty.Gen. 197, 198 (1968). Other firearms and weaponsstatutes have been added or amendedas the Legislature perceives the necessity. (See, e.g., § 12022.53, added in 1997 in response to a perceived needto treat firearms offenses more harshly than the same crimes committed by other means[People v. Martinez (1999) 76 Cal.App-4th 489, 497-498].) It is true the firearms statutes as a whole serve a legitimate state interest in regulating firearms to increase public safety. (People v. Perez (2001) 86 Cal.App.4th 675,678.) Yet, “identification of the laudable purposeofa statute aloneis insufficient to construe the languageof the statute. “To reason from the evils against whichthe statute is aimed in order to determine the scope of the statute while ignoring the languageitself ... is to elevate substance over 399necessary form. The language... confines and channels its purpose.’” (People 11 v. Nelson (2011) 200 Cal App.4th 1083, 1096, citing Cortez v. Purolator Air Filtration Products (2000) 23 Cal.4th 163, 176,fn.9.) Thus, a legitimatestate interest in controlling firearms does not support the conclusion that the Legislature, in enacting section 25850(a)or any otherstatute in the Act, meant something other than whatit said in thestatute. Statutes are not to be read in isolation, but must be construed with related statutes. (In re Jerry R.(1994) 29 Cal App.4th 1432, 1437.) But where different words or phrases are used in the same connection in different parts of a statute, it is presumed the Legislature intended a different meaning. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1117; and see People v. Francis (1969) 71 Cal.2d 66, 78 [“the Legislature manifestly could have different intents with respect to different sections contained in one chapter’].) The firearms statutes demonstrate the Legislature’s recognition that there is a difference between possessing a firearm, carrying a firearm, and carrying a firearm on the person or in a vehicle. Underestablished principles of statutory construction, wherethe words of the statute are clear, the judiciary may not alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history. (Burden v. Snowden (1992) 2 Cal.4th 556, 562.) Instead, whenever 12 possible,the judiciary mustgive effect to every wordin a statute and avoid a construction making a statutory term surplusage or meaningless. (People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621, 638.) The courts cannot create an offense by enlarging a statute, by inserting or deleting words,or by giving terms false or unusual meanings. (People v. Baker (1968) 69 Cal.2d 44, 50.) B. Sections 25505 and 25610 are Exemptions Which Relate to Carrying a Concealed Firearm (Chapter 2 of Pen. Code, Part 6, Title 4, §§ 25400-25700), and Do Not Demonstrate a Legislative Plan to Override the Plain Language of the Statutes Prohibiting Carrying a Loaded Firearm (Chapter 3 of Pen. Code,Part 6, Title 4, §§ 25800-16100). A broad construction of “on the person or in a vehicle” in section 25850(a), to include weaponsnotcarried either on the person or ina vehicle, is not supported by other statutes. For example, section 25505, exempting firearms “underthis article” which are being transported unloaded,in a locked container, with no deviations in the course of travel, and section 25610, allowing the transportingor carrying of “anypistol, revolver, or other firearm capable of being concealed upon the person” within a motor vehicle either locked in the trunk or in a locked container, or when carried by the person directly to and from any motorvehicle contained within a locked container, are both contained in Part 6, Title 4, Chapter 2, concerning concealed firearms. These specific statutes, contained in Chapter 2, concerning the carrying of concealed firearms, do not demonstrate a legislative plan to ignore the plain 13 language of the statutes contained in Chapter 3, concerning carrying loaded firearms. The Chapter 2 exemptionsdo not show that“on the person”as used in Chapter 3, section 25850(a), should be broadly construed to add words such as “on or about the person”or “on the person or in a container carried by the person.” The variousstatutes within the Act were enacted overtime and address specific needs as addressed by the Legislature. Sections 25505 and 25610 were originally enacted in 1987 as sections 12026.2(b) and 12026.1(a) respectively, and specifically related to concealed firearms then, as they do now. In contrast, section 25850(a) (formerly, § 12031) was enacted 20 years earlier, in 1967, in direct response to Black Panther membersentering the California Assembly Chambers openly carrying firearms in their hands. (51 Ops.Cal. Atty.Gen. 197, 198 (1968).) Sections 25505 and 25610 do not demonstrate a comprehensive,overriding legislative plan that would allow the courts to disregard the specific limiting language foundin the various firearm statutes. 14 IV. Section 25850(a) is Clear on its Face as Written. “On the Person” is Restrictive Language Which Distinguishes the Conduct Criminalized in Section 25850(a) from Being “Armed”or Carrying a Weaponin a Container. “On the person”is restrictive language. It criminalizes having afirearm on the person whereit is instantaneously accessible. By contrast, carrying a firearm in a backpack requires the individual to take the backpackoff, openit, and removethe firearm beforeit is available for use. Our Legislature knows howto criminalize having a weapon available for use as opposedto havingit immediately available for use, i.e., on the person.If the Legislature had meant to proscribe carrying a loaded firearm in a backpack or other container,it could have doneso in several different ways. First, the Legislature could have drafted section 25850(a) to provide that it is unlawful “to be personally armed with a loaded firearm in any public place or to carry a loaded firearm in a vehicle in any public place...” Such language would coveran individual’s carrying of a weaponin a container, as well as the carrying of a loaded firearm in a vehicle. Being “personally armed”hasan established meaning under California statutory law whichis broader than carrying a weapon “on the person,” because being personally armedincludes having the weaponin any place whereit is “available for use.” (People v. Bland (1995) 10 Cal 4th 991,997 [arming under § 12022, subd. (c) “does not require that a defendantutilize a firearm or even carry one on the 15 body.” A defendantis armed within the meaningofthe sentence enhancement statute if the defendant has the specified weapon available for use, either offensively or defensively” (emphasis added)]; People v. Superior Court (Cervantes) (2014) 225 Cal.App.4th 1007, 1012-1013 [under §12022, subd. (c), a person is “personally armed” with a firearm if he has the specified weapon available for use; the statute “does not require that the defendant physically carry the firearm on his or her person” }.) Ourcourts have long recognized a cleardistinction between physically carrying a firearm on the person, which givesthe individual immediate access to the firearm, and otherwise having a firearm available for use. People v. Yarbrough (2008) 169 Cal.App.4th 303, 314 points out that carrying a firearm on the person or in a vehicle permits a person “immediate access to the firearm....” People v. Smith (1992) 9 Cal.App.4th 196, 204,also statesthat the words“personally armed”in section 12022, subdivision (c) do not require that the firearm be physically carried on the defendant’s person. People v. Superior Court (Pomilia) (1991) 235 Cal.App.3d 1464, 1472 holds that with respect to a section 12022, subdivision (c) firearm enhancement, a defendant may have firearms “available for use in offense or defense at the time of his arrest, although noneofthefirearms was on his person.” (Emphasis added.) Pomilia makes clear that the statutory language of being “armed” includesall 16 individuals who have ready access to firearms — such as in a container they carry — and not just individuals who have firearms upon their persons. (Pomilia, supra, 235 Cal.App.3d 1464, 1471.) Most recently, the appellate court in People v. Superior Court (Cervantes) (2014) 225 Cal.App.4th 1007, 1015, stated: “As commonly understood, the state of being furnished or equipped with weaponsis broader than carrying a weapon on one’s person.” Here, if the Legislature intended a similar broad application to all persons with access to a loadedfirearm in public, it would have used the word “armed”instead of “carry on the person.” The Legislature’s choice of words must be given effect. Disregarding a statute’s literal language and inserting additional languageintoa statute is a “drastic tool of construction” to be used only “when it has been obvious that a word or numberhad been erroneously used or omitted.” and that ability is “extraordinarily narrow.” (People v. Guzman (2005) 35 Cal.4th 577, 587.) Inserting additional language into a statute “violate[s] the cardinal rule of statutory construction that courts must not add provisions to statutes. [Citations.} This rule has been codified in California as [Code of Civil Procedure] section 1858, which provides that a court must not ‘insert what has been omitted’ from statute.’ (/bid., citing Security Pacific National Bank v. Wozab (1990) 51 Cal.3d 991, 998, internal quotation marks omitted.) Otherwise, the court risks acting as a super- 17 Legislature by rewriting statutes to find an unexpressedlegislative intent. (People v. Guzman, supra, 35 Cal 4th 577, 586.) To ignore the restrictive language “on the person” would render those words mere surplusage, superfluous or unnecessary, a construction which must be avoided. (People v. Frawley, supra, 82 Cal.App.4th 784,789.) The court cannotcreate an offense by enlarging statute, by inserting or deleting words. (People v. Gohdes (1997) 58 Cal.App.4th 1520, 1526.) The restrictive language demonstrates that by including the phrase “on the person,” the Legislature indicatedits intention that the loaded firearm becarried directly on the individualorin his or her clothing. Second, had the Legislature wished to proscribe the possession of a loaded firearm in a backpack or other container, it could have proscribed carrying a loaded firearm “on about the personorin vehicle in any public place...” (People v. Pellecer, supra, 215 Cal.App.4th 508, 517 [“If the Legislature had wanted to criminalize possession of a dirk or daggerthat is concealed inside a carried container, it could have expressly referred to dirks or daggers inside carried containers or replaced the phrase ‘upon his or her person’ with ‘on or abouthis or her person’”].) “On or about the person”has a broader meaning than “‘on the person.” (Ibid.) In another context, People v. McDonald (2006) 137 Cal.App.4th 521, 18 examinedsection 374.4(c), defining “litter” as objects “ordinarily carried on or aboutthe person,” noting: The common,ordinary meaning of the words “on”and “about” bears out our conclusion. One leading dictionary defines “on”as follows: “la — used as a function word to indicate position in contact with and supported by the top surface of b — used as a function word to indicate positionin or in contact with an outer surface ....” (Webster's 10th New Collegiate Dict. (2001) p. 809,italics added.) The same dictionary defines “about” as “1: in a circle around: on every side of: AROUND a: in the immediate neighborhood of: NEAR b: on or near the personof...” (Id. at 532, fn. 5, emphasis in original and added.) Underthe dictionary definitions cited in McDonald, supra, “on” means touching the surface, and “about” means nearby. Undersuchdefinitions, “on the person”is clearly morerestrictive than “on or about the person.” “On the person”requiresthe firearm to be in direct contact with the person — carried in the defendant’s hands or arms,or in his clothing — while “on or about the person” meansit is nearby, i.e., perhaps in a backpack,briefcase, purse, or other like container. Similarly, dictionary definitions of “person” demonstrate that the usual and ordinary meaningofthe phrase “on the person”is that the firearm must be directly in contact with the person or in clothing the individual is wearing. Among Webster’s many definitions of “person,” the most appropriate is: 19 “[T]he body of a human beingas presented to public view usu[ally] with its appropriate coverings and clothing,” as in “an unlawful search of the [person].” (Webster's 3d New Internat. Dict. (1993) p. 1686.) Black’s Law Dictionary defines “on the person” as: “In common parlance, whenit is said that someonehas anarticle on his person, it means that it is either in contact with his person or is carried in his clothing.” (Black’s Law Dict. (Sth ed. 1979), p. 983.) In addition, sections 25400 and 29610,prohibiting adults and minors from carrying a weapon “capable of being concealed uponthe person,”further demonstrate that “upon the person”is restrictive language requiring that the firearm be in direct contact with the person’s bodyorin his clothing. Section 16530, subdivision (a) defines “firearm capable of being concealed upon the person”as onethathas a barrel “less than 16 inches in length.” In contrast, a firearm that could be carried outside an individual’s clothing, in a container, could be far larger. To carry “on the person” or “upon the person” is more restrictive than merely “to carry”or to carry in a container. Vv. “Carries” Should Not Be Liberally Construed to Ignore the Restrictive Modifier, “On the Person.” The conduct proscribed in section 25850(a)is the carrying of a loaded firearm upon the person. “Upon the person” modifies or limits the meaning of the word “carries.” The prosecution’s argumentthat “carries” should be 20 broadly construed (AOB 10-13) ignorestherestrictive language. At issue here is not “carries”at large, but “carries a firearm on the person.” People v. Overturf(1976) 64 Cal.App.3d Supp. |, cited in the Opinion at p. 5, is inapposite to this case. There, the defendant was charged with illegally carrying a loaded firearm onhis person in public under formersection 12031(a) and argued he was exempted fromliability under subdivision (f) of the statute, which allowed “having”a loadedfirearm at his place of business, a three-building apartment complex he owned and managed. (Overturf, supra, 64 Cal.App.3d Supp. 1, 3.) The defendant carried the firearm out to the driveway wherehefeared three men were tampering with his automobile, and fired it. (/d. at p.4.) The appellate departmentnoted the distinction between “carrying” a weapon and “having”it. Its analysis has no application to the case at bench, which doesnot involve section 12031, subdivision(f), allowing a business ownerto “have” a weapononthe business premises. In re Bergen (1923) 61 Cal.App. 226 and People v. Smith (1946) 72 Cal.App.2d Supp. 875, also cited in the Opinionat p. 5, are also inapposite. These cases examined whether “carry” requires movement of the firearm. Bergen concludedthat “carry” conveys the thought of “going about armed” (61 Cal.App. 226, 228), and Smith concluded a weapon is “carried” if locomotion of the body would carry the weapon with it (72 Cal.App.2d Supp. 21 875, 878). Locomotionis not at issue in the present case. Bergen and Smith add nothing to the analysis whether carrying a weapon “on the person”extends beyondthe person to a weaponcarried in an outside container. The Opinion also appears to misread Muscarello v. UnitedStates (1998) 524 US. 125 [118 S.Ct. 1911, 141 L.Ed.2d 111]. (Opinion, p. 6.) In Muscarello, the high court examined 18 U.S.C. §924(c)(1)(a), imposing a mandatory prison term on any person who “usesorcarries a firearm” during and in relation to a drug trafficking crime,“or who, in furtherance of any such crime, possesses a firearm.” The question before the court was whether the phrase “carries a firearm” was limited to the carrying of firearms on the person. The court held that it was not. (Muscarello, 524 U.S. 125, 126.) Importantly, and quite differently from the case at bench, the statute in Muscarello did not include the modifier, “on the person.” (18 U.S.C. § 924(c)(1)(a).) Thus, the high court concludedthat “neither the statute’s basic purposenorits legislative history support circumscribing the scope of the word ‘carry’ by applying an ‘on the person’ limitation.” (Muscarello, supra, 524 U.S. 125, 132.) Muscarello properly refused to add wordsto the statute that the Legislature had not used. The present case is clearly different. In section 25850(a), our Legislature did circumscribe the scope of the word “carry” by applying an “on 22 the person”limitation. Thestatute is not ambiguous. Butto the extentit could be construed as such, twoestablished principles govern. First, ambiguity concerningthe ambitof criminalstatutes should be resolvedin favoroflenity. (United States v. Bass (1971) 404 US. 336, 347 [92 S.Ct. 515, 30 L.Ed.2d 488]; People v. Douglas (2000) 79 Cal.App.4th 810, 815.) Therule of lenity ensuresthe fair warning required bythe due processclausesof the federal and state constitutions. A failure to applythe rule violates the criminal defendant’s right to due process underthe state and federal constitutions. (U.S. Const., Amend. 14; Ca. Const., Art. 1, § 7; People v. Hagedorn (2005) 127 Cal .App.4th 734, 745-746.) Second, because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, it is for the Legislature, and not the courts, to define criminal activity. (United States v. Bass, supra, 404 U.S.336, 348.) Application ofthis principle is likewise required by federal and state due process. (People v. Superior Court (American Standard) (1997) 14 Cal 4th 294, 313; U.S. Const., Amend.14; Ca. Const., Art. 1, § 7.) VI. People v. Dunn (1976) 61 Cal.App.3d Supp. 12, Was Incorrectly Decided. The trial court herein dismissed the firearms charge on the basis of People v. Pellecer (2013) 215 Cal.App.4th 508, which disapproved of and 23 overruled People v. Dunn, supra, 61 Cal.App.3d Supp. 12. The Opinionherein agrees with Dunn as being“indistinguishable from that presentedin this case.” | (Opinion, p.4.) Defendantdisagrees. In Dunn, the defendant was charged with violating former section 12025(b) which prohibited a person from carrying “upon his person any pistol, revolver, or other firearm capable of being concealed upontheperson....” (Dunn, supra, 61 Cal.App.3d Supp. 12, 13.) The defendant in Dunn tookhissuitcase to the airport, intending to storeit in a locker overnight. The airport x-ray equipment detected a handgun in the suitcase. Dunn’s sole contention on appeal was that the handgun was not concealed uponhis person, because the phrase “upon the person”waslimited to a man’s clothing, exclusive of handbags,attache cases, suitcases, and the like. ({bid.) Curiously, Dunn arguedthat “upon the person” for a woman was something different and would include a woman’spurse or handbag. (dd. at 13-14.) The prosecution argued this would lead to a “bizarre result.” (Jd. at 14.) Without undertaking any analysis of the restrictive phrase, “on the person,” the appellate department of the superior court held that the Legislature intendedto proscribe carrying concealed weaponsby both men and women,and that a “handgun concealedin a suitcase and carried by appellant is sufficiently ‘upon his person’ to constitute a violation of section 12025.” (People v. Dunn, supra, 61 Cal.App.3d Supp.12, 14.) 24 The appellate department in Dunn stated thatit had found no California case on point, and based its decision on a New York search and seizure case, People v. Pugach (1964) 15 N.Y .2d 65 [255 N.Y.S.2d 833, 204 N.E.2d 176]. (People v. Dunn, supra, 61 Cal. App.3d Supp.12, 14.) While the defendantin the New York Pugach case was convicted of carrying a firearm “upon his person,” the issue before the New York appellate court did not involve construction of that phrase or the New York firearm statute in any respect. Rather, Pugach addressed the propriety of the search conducted by police officers after they detained the defendant in the back seat of their squad car and, after frisking him, took from him the closed briefcase which he had onhis lap. After taking the briefcase into the front seat, an officer then unzipped the briefcase and found a pistol. (Pugach, supra, 15 N.Y.2d 65,67-68.) The New York court concluded (over a strongly wordeddissent) that the police officers’ unzipping, opening, and searching the defendant’s briefcase was part of a constitutionally permissible “frisk” incident to detention. (/d. at 69.) The New York court in Pugach did not determine that a statute criminalizing carrying a weapon“on the person”included a weaponcarried in a closed briefcase or similar container. Yet, it was on Pugach’s questionable reasoning and conclusion that the Los Angeles appellate departmentrelied in Dunn,supra. The Court of Appeal in Pellecer, supra, correctly disagreed with 25 Dunn’s conclusion,finding that it was incorrectly decided andthatits reliance on Pugach was misplaced. (Pellecer, supra, 215 Cal.App.4th 508, 516-517.) The Opinionstates that Dunnis consistent with decisions in otherstates interpreting similar statutes. (Opinion, p. 5.) The out-of-state casescitedin the Opinionare not persuasive, for several reasons. In DeNardov. State (Alaska Ct.App.1991) 819 P.2d 903, the Alaska Court of Appeal construeda statute prohibiting knowing possession of “a deadly weapon,other than an ordinary pocketknife, that is concealed on the person.” (/d. at 905.) In DeNardo, law enforcementofficers detained the defendant and asked him to accompanythem to the state troopers’ office, where they observed him remove a long-bladed knife from his jacket and put it in the briefcase he was carrying. The officers seized and searchedthe briefcase. The Alaska appeals court held that the statutory language “on the person” was broad enough, even without the additional word “about,” to encompass “weaponsconcealedeither in clothing or in purses, briefcases, or other hand-carried containers.” (/d. at 906.) This conclusion was based onthree faulty premises: First, the Alaska court in DeNardo cited “case law from around the country”that “a person whocarries a deadly weaponin a purse, a briefcase, or even a paper bag commits the offense of carrying a concealed weapon.” (Id. at 905.) Notably, this was not a finding that case law from around the 26 country construes“on the person”to includeitems carried in containers. In fact, each of the out-of-state cases cited in DeNardo dealt with a statute prohibiting the carrying of a weapon “on oraboutthe person,” nota statute with the morerestrictive language,“on the person.” See, People v. Foster (1961) 32 Ill.App.2d 462 [178 N.Ed.2d 402, 404] [defendantindicted for unlawfully carrying concealedfirearms“on or abouthis person”’]; State v. Britt (1978) 200 Neb. 601, 607-608 [264 N.W.2d 670, 674] [carrying revolverin gym bagfalls within statutory prohibition against carrying concealed weapon “on or about his person”); Bell v. State (1986) 179 Ga.App. 790 [347 S.E.2d 725 ,726-727]|[police officer authorizedto arrest defendant who started to pull a loaded revolver out of his shaving kit instead of providing identification; case did not consider or decide any issue concerning whether firearm was carried on, or on or about the person]; Schaaf v. Commonwealth (1979) 220 Va. 49, 429-430 [258 S.E.2d 574| [statute prohibited carrying weapon “on or about [the] person”]; State v. Molins (1982) 424 So.2d 29, 30 [Fla-App.] [same]; Rogers v. State (1976) 336 So.2d 1233, 1234 |Fla.App.| [same]; State v. Straub (1986) 715 S.W.2d 21 [Mo.App.] [same]; People v. Williams (1973) 15 Il]_App.3d 823, 824-825 [305 N.E.2d 186, 187] [same]. (Opinion,atp. 5.) 27 Asshown,all of the out-of-state cases relied on by the Alaska court in DeNardo andcited in the Opinion construed statutes prohibiting carrying weaponson or about the person. “Onor about the person”is broaderthan the statutory language“on the person”at issue here. The cases thus do not support DeNardo’s conclusion (nor the conclusions of the California court in Dunn and the New Yorkcourt in Pugach) that the phrase “on the person” should be broadly construed and meansthe samething as “on or about the person.” Second, the DeNardo court supported its conclusionby referring to the trial court’s reliance, in a court trial, on a definition from Black’s Law Dictionary. (DeNardo,supra, 819 P.2d 903, 906.) The Alaska appeals court said: “Judge Andersonrelied upon the definition of ‘on the person’ found in Black’s Law Dictionary. See Black’s Law Dictionary, (5th ed. 1979), p. 983. According to Black’s, ‘on the person’ encompassesitems ‘in contact with [the defendant’s] personor... carried in his clothing.” (DeNardo, supra, 819 P.2d 903,904.) Thus, although Black’s Law Dictionary defines “on the person”as encompassing itemsin contact with the personorin his orher clothing, both the trial court and the reviewing court in DeNardo made a leap from itemsin contactwith the person orcarriedin his clothing to items carried in containers that are in contact with the person. Black’s Law Dictionary does notrefer to containers or give that broad definition. Broadening the reach of “on the 28 person”to itemsin containerscarried by the person ignores boththerestrictive statutory language and Black’s definition, and violates the rule of lenity. Third, DeNardo relied on Dunn and Pugach, which construed “on the person”to include containers carried by the person. (DeNardo, supra, 819 P.2d 903, 906.) But, as shown above, Pugach was a search and seizure case which did not construe the New York statute’s language, “on the person,”or make any determination whether that language included a weaponcarried in a closed briefcase or similar container. And, as shown above,the Dunn court’s reliance on Pugach was misplaced. The Oregon casescited in the Opinion (opn., p. 6), State v. Anfield (1992) 313 Ore. 554, 556-557 [836 P.2d 1337] and State v. Finlay (2002) 179 Ore.App. 599, 601-602 [942 P.2d 326], are also unpersuasive. Like DeNardo, these casesalso rely on Dunn and Pugach without undertaking any analysis of the difference between an item that is “upon the person” and one whichis carried in a container. Nor do the Oregon cases undertake a statutory construction analysis, under which the court must avoid rewriting a statute to find an unexpressedlegislative intent or a construction which rendersstatutory language superfluous or unnecessary. (People v. Frawley, supra, 82 Cal App.4th 784, 789.) 29 The Opinion states that “for 37 years, the holding in Dunn[citation] went unquestioned in California and courts in other states.” (Opinion,p. 6.) However,it is notable that Dunn is a superior court appellate division case, since its publication in 1976 no published California decision has cited Dunn with approval, and only two published cases havecited it even in passing:(1) People v. Mitchell (2012) 209 Cal App.4th 1364, rejected a constitutional challenge to Penal Code section 12020(a)(4), prohibiting carryingaconcealed dirk or dagger, and specifically refrained from deciding whether carrying a weapon“uponthe person”is necessarily committed “even whenthe instrument is in some type of carrying container rather than carried directly on the person’s body.” (Mitchell, supra, 209 Cal.App.4th 1364, 1377, fn. 5.) (2) People v. Squadere (1978) 88 Cal.App.3d Supp.| ,another case decided bythe appellate division of the superior court, is the only other published case which cites to Dunn. Squadere examined Vehicle Code section 23 122, providing that “‘no personshall have in his possession on his person, while in a motorvehicle upon a highway,” an open containerof alcoholic beverage. (Squadere, supra, 88 Cal.App.3d Supp. 1, 2.) Relying on People v. McElroy (1897) 116 Cal. 583, the court in Squadere held that an open container in the car in which appellant wasriding wasnot “on his person” becauseit was not “connected to the person of the defendant”as required by the language “on his person.” Both 30 Squadere and McElroydeclined to give “on the person”the broad construction of “on the person” adopted by the Opinion. VII. People v. Pellecer (2013) 215 Cal.App.4th 508, While Distinguishable from the Present Case on its Facts, Correctly Rejected and Overruled Dunn. As shown above, Dunn was incorrectly decided. That Pellecer is distinguishable on its facts (Opinion, pp. 8-9) does not changethat. First, the Opinion distinguishes Pellecer onthebasis that in that case, the defendant was merely adjacent to and leaning on the subject backpack, whereas in this case the defendant was wearing the backpack. (Opinion,p. 8.) However, as the facts show, the defendant here was not detained with a backpack onhis back, immediately followed bya search revealing a firearm. Thefirearm wasfoundlaterin the backpack, which was unzipped andlocated in a residential yard. (CT 6-7, 15) Second,the Opinion distinguishes Pellecer on groundsthat concealed knives and firearms represent varying degrees of danger; therefore the statutory language “upon the person” can be read differently in the statute involving knives . (Opinion, pp. 8-9.) There is no reason to construe “on the person”anydifferently in section 25850. Similar statutes should be construed in light of one another. (People v. Nelson,supra, 200 Cal.App.4th 1083, 1099; People v. Coker (2004) 120 Cal.App.4th 581,588.) Because the Legislature 31 has employed the sameprecise term, “on the person”in similar statutes which are similarly aimedat controlling carrying weaponsin public, use of the term in section 25850 cannot be squared with an argumentor conclusionthat the languagecan simply be ignored becausefirearmsrepresent a varying degree of danger. (Nelson, supra, 200 Cal.App.4th at 1099.) CONCLUSION The limiting language“on the person”in section 25850(a) should not be ignored andthe statute should not be rewritten by the Court of Appeal. Defendant requests that review be grantedto correctthis error. Dated: February 19, 2015 Chet Dobleafeie a Ballantine,‘SBN 93675 ._ppointed Counsel for Defendant-Respondent Steven Wade. CERTIFICATE OF WORD COUNT I certify that the word count for Respondent’s Petition for Review herein is 7,439 words, as counted by the WordPerfect computer program which wasused to producethisbrief. a | . Tyan ( LLbienteeca “~ vallantine, Attorney for Respondent. 32 Filed 2/10/15 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATEDISTRICT DIVISION FIVE THE PEOPLE, B255894 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BA421048) v. STEVEN WADE, Defendant and Respondent. APPEALfrom an orderofthe Superior Court ofLos Angeles County. C lifford L. Klein, Judge. Reversed. Jackie Lacy, District Attorney, Phyllis C. Asayama and Scott D. Collins, Deputy District Attorneys, for Plaintiff and Appellant. Jean Ballantine, under appointment by the Court of Appeal , for Defendant and Respondent. Exhibit A - Court of Appeal Opinion, B255894 Defendant Steven Wadewasheld to answer on a chargeofcarrying a loaded firearm onhis person (Pen. Code, § 25850,subd.(a)).! Preliminary hearing testimony established that defendant was wearing a backpack containing a loaded revolver while being pursued by a police officer. Thetrial court granted defendant’s section 995 motion to dismiss, finding that defendantdid notcarry the firearm on his person under the reasoning in People v. Pellecer (2013) 215 Cal.App.4th 508 (Pellecer), which heldthat a knife contained in a backpackis not carried “on the person.” On appealby the People, we reverse. A defendant wearing a backpack containing a firearm carries the firearm on his or her person. We decline to apply the reasoning in Pellecer, supra, 215 Cal.App.4th 508, to possession ofa firearm concealedin a backpack in light of the historical interpretation of “carries a loaded firearm on the person”in California, which is in accord with decisions from other jurisdictions considering languagesimilar to section 25850, subdivision (a). DISCUSSION Section 25850, subdivision (a) provides as follows: “A personis guilty of carrying a loadedfirearm whentheperson carries a loaded firearm on the person or in a vehicle while in any public place or on any public street.” The issue presented is whether a person wearing a backpack containinga loadedfirearm “carries a loaded firearm on the person.” Standard of Review “Insofar as the Penal Codesection 995 motion rests on issues of statutory interpretation, our review is de novo. (Peoplev. Superior Court (Ferguson) (2005) 132 | All statutory referencesare to the Penal Code, unless otherwise indicated. 2 Cal.App.4th 1525, 1529.)” (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1072.) “Under settled canonsof statutory construction, in construing a statute we ascertain the Legislature’s intent in orderto effectuate the law’s purpose. (Dyna—Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387.) We mustlook to the statute’s wordsandgive them their usual and ordinary meaning. (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601.) The statute’s plain meaningcontrols the court’s interpretation unless its words are ambiguous.” (Green v. State ofCalifornia (2007) 42 Cal.4th 254, 260.)” (People v. Robinson (2010) 47 Cal.4th 1104, 1138.) The Relevant Statutes Section 25850, subdivision (a), is the successor statute to former section 12031, subdivision (a)(1), which wasrepealed in 2010 as part of the Deadly Weapons Recodification Act of 2010 (The Act).2 (§ 16000et seq.) The Actis not intended to substantively change the law relating to deadly weaponsand “is intendedtobeentirely nonsubstantive in effect.” (§ 16005.) Provisions of the Actare intended to be restatements and continuation ofprior statutes in the absence of the appearance ofa contrary legislative intent. (§ 16010.) “A judicial decision interpreting a previously existing provision is relevant in interpreting any provision of”the Act, althoug h“the Legislature has not evaluated the correctness of any judicial decision interpreting a provision affected by the act”andit “is not intended to, and does not, reflect any assessmentof any judicial decision interpreting any provision affected by the act.” (§ 16020.) “ reliance on Dunn,supra, 61 Cal.App.3d Supp.12, for the proposition that a weaponcarried in a backpackis carried concealed upon the person. Pellecer criticized in a county jail not exceeding one year or imprisonmentpursuantto subdivision (h) of Section 1170.” 5 The Attorney General did not petition the California Supreme Court for review of the decision in Pellecer. The instant appeal is broughtby the District Attorney of Los Angeles County. the Dunn court’s citation to People v. Pugach (1964) 255 N.Y.S.2d 833 (Pugach), which the Pellecer describedas a search andseizure case. (Pellecer, supra, at p. 516.) In determiningthelegality of the search in Pugach, New York’s highest court affirmatively described substantive New York law as follows: “The loaded firearm concealed in the brief case carried in the hands ofthe defendant wasin the languageofthe statute ‘concealed upon his person’ (Penal Law, § 1897.)” (Pugach, supra, at p. 836.) A discussion of substantive New York law wasrequired in Pugachto resolve the search and seizure issue, and wedisagree with Pellecer’s unduly narrow readingofthe case. As addedcriticism ofDunn, the Pellecer court stated that while Pugach mayreflect the intent of the New YorkLegislature as to the meaningofthe statutory phrase “concealed uponhis person,”that“intent cannotbe automatically imputedto the California Legislature” and Dunn did not examinethelegislative history of former section 12025 “to determine whether‘carries concealed uponhis persons’ included a container such as Dunn’ssuitcase.” (/d. at pp. 516-517.) But the Dunn court never suggested that Pugach described California’s legislative intent. The interpretation of a similar statute by a highly regarded court of another state was persuasive authority that assisted in interpreting California law. In our view,the holding in Dunnis consistent with the purpose ofthe Act, which is to prevent a person from carryinga readily accessible concealed firearm. We have no difficulty in concluding that defendant’s immediate access to the revolver within the backpack he worecreated the typeofclearthreat to the general public and the pursuing officer that is prohibited by section 25850, subdivision (a). Furthermore, Pellecer is distinguishable on two bases. First, the defendantin Pellecer wasleaning on his backpack, as opposed to defendant, who wore the backpack containing the revolver while fleeing from the officer. The factualbasis for the “carries” aspect of section 25850, subdivision(a), is readily apparentin this case. Second, although not acknowledged by the Pellecer court, concealed knives and firearms represent varying degrees of danger, andthe legislature treats the public possession of firearms and knivesdifferently. While “(a] knife carried in a sheath that is worn openly 8 suspendedfrom the waist of the wearer is not concealed within the meaning of Section . . . 21310” (§ 20200), a firearm may not be worn openly in a public place or in a vehicle (§ 26350, subd. (a)(1).) Thus, assuming Pellecer correctly defines the scope of former section 12020, involving knives, it does not follow that the sameinterpretation applies to section 25850, subdivision (a). Finally, we reject defendant’s reliance on the rule oflenity. Therule oflenity applies wherethere is an “egregious ambiguity”as to the meaning of a statute. (People v. Avery (2002) 27 Cal.4th 49, 58.) Section 25850, subdivision (a), is not egregiously ambiguous. Courts ofthis state and other states that have consideredthe meaning of similar statutes consistently concludethat a person carrying a concealedfirearm in an object suchas a suitcase, purse, or bag, carries the weapon concealed on the person. The only uncertainty in this area is the result of the decision in Pellecer, which does not control the interpretation of section 25850, subdivision(a). DISPOSITION Theordersetting aside the charge ofviolating Penal Code section 25850, subdivision(a), is reversed. KRIEGLER,J. I concur: MOSK,ActingP.J. Goodman,J., Concurring I fully concur. I add this statement to emphasize that Wade had immediate and full control of the backpack andofthe (loaded) firearm he carried inside it, as demonstrated by both his wearing the backpack and takingit off and discardingit as the officer pursued him. It would have beenjust as easy for Wade to have openedthe backpackandfired the weaponasit would have been for him to have taken the gun from a holster or from a fastened (or unfastened)inside pocket ofa jacket he might have been wearing. The element commonto all of these circumstancesis immediate access to the firearm. GOODMAN,J.* ae Judge of the Los Angeles Superior Court, assigned by the ChiefJustice pursuantto article VI, section 6 of the California Constitution. PROOF OF SERVICE I, Jean Ballantine, declare and say that: - Iam employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business addressis 12405 Venice Boulevard, #139, Los Angeles, CA 90066. On February 19, 2015 I served the foregoing document described as PETITION FOR REVIEWonthe interested parties in this action by placing a true copy thereofenclosedin a sealed envelope,postage prepaid, first class mail, with the U.S. Postal Service, addressed as follows: CAP-LA Clerk, Los Angeles Superior Court Attention: Richard Lennon,Esq. For: Hon. Clifford L. Klein, Judge 520 S. Grand Avenue, Fourth Floor 210 West Temple Street Los Angeles, CA 90071 Los Angeles, CA 90012 Los Angeles District Attorney Steven Wade Attention: Scott D. Collins (addressonfile) 320 West Temple Street, Suite 540 Los Angeles, CA 90012 Office of the Public Defender DPDShelan Y. Joseph 210 West Temple Street, 19th Floor Los Angles, CA 90012 AND BY ELECTRONIC SERVICEon the same date from my email address, ballantine093675@ gmail com,to: CLERK, COURT OF APPEAL, 2ND Appellate District, Div. 5, @ www.courts.ca.gov. I declare, under penalty of perjury, that the foregoing is true and c orrect. Executed February 19,2015 at Los Angeles, California. Nae aabu Zee | Jean Ballantine