People v. Isiah A. (In re Isiah A.)

1

In re ISIAH A., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, v. ISIAH A., Defendant and Appellant.

B328949

California Court of Appeals, Second District, Seventh Division

March 8, 2024

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. PJ54163, David Yaroslavsky, Judge. Reversed.

Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven E. Mercer and Stephanie A. Miyoshi Deputy Attorneys General, for Plaintiff and Respondent.

SEGAL Acting P. J.

Los Angeles Police Department Officers Luis Lopez and Daniel Ramirez were on foot patrol between 10:00 p.m. and 10:30 p.m near an apartment building in an area where members of the Pacoima Van Nuys Boys criminal street gang were known to congregate. The officers hid behind a brick wall of a building and saw Isiah A., who was wearing a black hoodie and red pants, with a group of other teenagers and one adult standing in a parking lot of the apartment building, drinking beer and smoking marijuana. The eight individuals were standing between two cars that were several spaces apart in the parking lot. One young man was sitting on the trunk of one of the cars; a woman was sitting inside the other. Officer Lopez and Officer Ramirez called for backup, and two more officers arrived. Each pair of officers approached the group from a different side of the parking lot so that none of the individuals in the group could run away. The officers told everyone to line up against a wall.

From an area where the group had been standing, the officers confiscated a carton of beer. In a blue jacket near where the young man had been sitting on the trunk of one of the cars the officers found a loaded revolver. And from the ground between the two parked cars, the officers recovered a black school backpack containing a loaded, semi-automatic Polymer 80 "ghost gun" (which Officer Ramirez described as "a gun that you can build yourself" and that "doesn't have a serial number").^[1]Officer Lopez also recovered from the backpack an extended magazine with 26 rounds in it, in addition to a round in the chamber of the gun. The handle and magazine were wrapped in white tape, which is a way to prevent someone from leaving fingerprints on a gun, and the gun had a laser gun light to help the shooter aim at a specific target. The backpack also contained some paperwork, including a document from the Los Angeles Unified School District that stated Isiah's name, age, date of birth, and mother's emergency contact information.

The People filed a petition under Welfare and Institutions Code section 602, alleging Isiah carried a loaded firearm on his person or in a vehicle while in a public place, in violation of Penal Code section 25850, subdivision (a).^[2] (See § 16840, subd. (a) ["a firearm shall be deemed to be 'loaded' whenever both the firearm and the unexpended ammunition capable of being discharged from the firearm are in the immediate possession of the same person"]; People v. Clark (1996) 45 Cal.App.4th 1147, 1153 ["a firearm is 'loaded' when a shell or cartridge has been placed into a position from which it can be fired"].) The People also alleged Isiah was not the recorded or registered owner of the handgun, within the meaning of section 25850, subdivision (c)(6).

The juvenile court found that the People proved beyond a reasonable doubt Isiah had violated section 25850, subdivision (a), but that the People did not prove the allegation under section 25850, subdivision (c)(6). The court found Isiah was a person described by Welfare and Institutions Code section 602 and placed him on probation without wardship for a period not to exceed six months, under Welfare and Institutions Code section 725, subdivision (a).

Isiah argues, the People concede, and we agree substantial evidence did not support the juvenile court's finding he violated section 25850, subdivision (a), because there was no evidence he "carried the firearm on his person as required by" the statute. Where a person is wearing a backpack, "anything inside that backpack was also on his person." (People v. Wade (2016) 63 Cal.4th 137, 140; see People v. Hester (2020) 58 Cal.App.5th 630, 638 [where the defendant is wearing a backpack containing a box cutter, the box cutter is on his person].) On the other hand, where a person is merely leaning against a backpack, the contents of the backpack are not on his person. (Wade, at pp. 145-146; People v. Pellecer (2013) 215 Cal.App.4th 508, 512 [discussed in Wade].) And where a person is "never seen even touching the backpack, much less wearing it," its contents are not in his possession. (People v. Bay (2019) 40 Cal.App.5th 126, 134; see also In re Charles G. (2017) 14 Cal.App.5th 945, 951 [possessing a firearm "is far broader than carrying" a firearm because to "possess a firearm means having actual control, care and management of the firearm," whereas carrying a firearm "means to convey, or transport; and to transfer from one place . . . to another," internal quotation marks omitted].)

There was no evidence Isiah wore, picked up, held, leaned on, or discarded the backpack with the Polymer 80 ghost gun. Isiah was standing near the trunk of one of the cars, and the backpack was near the front of the other car. Neither Officer Lopez nor Officer Ramirez ever saw Isiah touch the backpack or have it in his possession. Indeed, the officers did not see anyone in possession of the backpack, nor, after they detained the individuals, did they see or hear anyone discard anything as the officers approached. To...