Thursday, February 12, 2015

People v. Wade (Cal. Ct. App. - Feb. 10, 2015)

The California courts are closed because it's Lincoln's birthday, and the Ninth Circuit (again) has not published anything today.  So it's another lazy California day.  (Thankfully:  It's a sunny 80+ degrees and sunny here in San Diego, and is one of those February days that makes me thankful to be alive -- and in SoCal.)

But just because the California judiciary may be (officially) taking a break doesn't mean I can't tell them that they should take on some extra work.  Which I'll now do:

The California Supreme Court should grant review of this opinion.

I'm not saying that because I believe Justice Kriegler's decision to be necessarily wrong and/or pernicious.  It's just that it's in irreconcilable conflict with an earlier Court of Appeal decision, and the resulting split is jurisprudentially untenable.

Justice Kriegler holds that you illegally carry a firearm "on your person" if the gun is in your backpack.  Hence prison time.  But less than two years ago, Justice Mallano (in an unanimous opinion) held that you're not illegally carrying a knife "on your person" if it's in your backpack.

One of those two opinions, in my view, is wrong.  It's the exact same statutory language.  They're both weapons.  It's inconceivable that the Legislature intended that you be allowed to keep a knife in your backpack but not a gun because the former isn't "on your person" but the latter is.

Most importantly, we need to know what we're allowed to keep in our backpacks.  Whether we spent years in prison shouldn't depend upon what panel we happen to draw in the Court of Appeal or which of these two competing decisions the trial court finds most persuasive.

So the California Supreme Court should take the case up and settle the question.

P.S. - The entire dispute also brought a smile to my face because it reminded me of something my father used to say.  He was fond of retelling the same stories over and over again.  (Whether he knew he was retelling the story to the same audience is an unsettled question.)  One of the classic stories he would often recount related to how law often remained unchanged in Virginia, the state in which he lived and practiced law.  He would often note that the law about concealed weapons in Virginia "still comes from a case about whether a gun in a saddlebag counts."  He always thought that was funny.  He was also right:  there was indeed a case in 1909 about whether a pistol in a saddlebag counted as being carried "about his person" under the statute.  An issue similar to the one the California Court of Appeal is now split.

I thought about my father's oft-retold story when I saw that one of the decisions cited by Justice Kriegler was from Virginia, and related to whether a pistol in a handbag counted as being "on one's person" notwithstanding the "saddlebag rule" established by the Virginia Supreme Court long ago.

The more things change . . . .