Opinion Bank # 0-105 (Re: NCJIC 106.4.5.1 [Concealed Weapon In Vehicle: Weapon Must Be Concealed Within The Vehicle].)

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                            No. F014847

        Plaintiff and Respondent,                                              (Super. Ct. No. 42416)

v.

DANNY LEERAY CARDWELL,                                        OPINION

        Defendant and Appellant.
__________________________________/

APPEAL from a judgment of the Superior Court of Kern County, Robert T. Baca, Judge.

Jim Fahey, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Margaret Garnand Venturi and Mary Jane Hamilton, Deputy Attorneys General, for Plaintiff and Respondent.

After a jury trial, appellant was found guilty of possession of cocaine for sale in violation of Health and Safety

II.

    Appellant correctly contends that there is no evidence in the record that his gun was concealed. The gun was found on the passenger side of his truck on the seat itself. The only reference that the gun was concealed is a statement by the trial court that "[exhibit] No. 3, the blue zippered container and its contents -- the gun that's inside, is admitted [into evidence]."

    The parties do not dispute that a gun inside a blue zippered gun case would satisfy the requirements of concealment under Penal Code section 12025, subdivision (a). Appellant contends, however, that there is no evidence that the gun was found inside the blue gun case at the time it was discovered by officers. This contention by appellant is correct.

    The precursor statute to Penal Code section 12025, subdivision (a) was a statute that read:

"'Except as otherwise provided in this act, it shall be unlawful for any person within this state to carry concealed upon his person or within any vehicle which is under his control or direction any pistol, revolver or other firearm capable of being concealed upon the person without having a license to carry such firearm as hereinafter provided in section eight hereof. Any person who violates the provisions of this section shall be guilty of a misdemeanor, and if he has been convicted previously of any felony, or of any crime made punishable by this act, he is guilty of a felony.’" (People v. Frost (1932) 125 Cal.App.Supp. 794, 795.)

    The key language in the early statute was that it was unlawful for someone to carry "concealed upon his person or within any vehicle" a pistol, revolver or other firearm that could be concealed on the person without having a license for such weapon. Penal Code section 12025, subdivision (a) contains substantially similar language as its precursor statute making it illegal for anyone to carry "concealed within any vehicle which is under his or her control or direction" any pistol or other firearm capable of being concealed.

    Early California authorities have found that this language mandates that the weapon must be concealed on a person or in a vehicle before one can be convicted for violating this statute. People v. Commons (1944) 64 Cal.App.2d Supp. 925, 929; People v. Frost, supra, 125 Cal.App.Supp. 794, 795-796.)

    The People strenuously argue that Penal Code section 12026.1, subdivision (a)(1) sets forth the only method for properly transporting a weapon in a vehicle. This statute requires that a firearm be locked inside a vehicle's trunk or in a locked container other than the utility or glove box. The People infer from this statute that any weapon not so transported is being transported illegally. This inference, however, ignores the plain requirement of section 12025, subdivision (a) that a weapon be concealed. Here, there is no evidence of concealment. The People further argue that there is substantial evidence from which the jury could infer the weapon was in fact concealed. The record in the instant case, however, is too ambiguous to support such an inference.

    In short, the People have not cited any authorities that overcome the Frost-Commons requirement that a weapon be concealed for purposes of Penal Code section 12025, subdivision (a). For this reason, appellant's conviction on count III must be reversed. This does not in any way affect appellant's conviction under Penal Code section 12031, subdivision (a) for carrying a loaded firearm in a vehicle on a public street in an incorporated city.

    The reversal does, however, affect the stay pursuant to Penal Code section 654 of the sentence imposed on count IV. It is readily apparent that the stay arose out of the relationship of count IV to count III. The reversal thus removes the basis for the stay. The sentencing court did not expressly state whether, absent the necessity for it being stayed, the sentence on count IV was to be concurrent or consecutive. However, it is clearly implicit from the sentences imposed that the court intended the sentences imposed on all misdemeanor counts, including count IV, be concurrent with count I. We will thus order the section 654 stay of the sentence on count IV removed, and the sentence specifically made concurrent to the sentence imposed on count I.

III.

    Appellant contends that the trial court was unduly prejudiced by a prosecutorial comment to the effect that appellant was not a suitable candidate for probation because he was not willing to accept the fact that he had been found guilty of the charge of possessing drugs for sale. The record, however, indicates this argument did not weigh very heavily upon the trial court. The court immediately noted that this was appellant's first conviction and that he had a great deal of support from friends and family in the community. He had held jobs and had been a productive member of society. The court further found that probation was not a suitable custodial setting for treatment and therefore ordered appellant to CRC because the amount of contraband cocaine in this case was so large that the trial court believed the custodial setting was the proper alternative sentencing. Given the large quantity of cocaine, the trial court denied probation but sentenced appellant to the low term of two years. On October 18, 1990, the court found appellant eligible for CRC, criminal proceedings were suspended, and appellant was committed to the California Rehabilitation Center.

    Appellant's contention that the trial court improperly considered his lack of remorsefulness is not supported by the record. His further argument that the prosecutor's comment was prejudicial under People v. Coleman (1969) 71 Cal.2d 1159 is also unsupported. In Coleman, the defendant was charged with a capital offense. During the penalty phase, the prosecutor argued that the defendant's refusal to make a postconviction admission of guilt warranted imposition of the death penalty. The California Supreme Court condemned as an intolerable dilemma the practice of placing the defendant, once he or she has already testified under oath that he or she is innocent, in the position of having to admit or commit perjury in posttrial proceedings in order to receive a lighter sentence. (Id. at pp. 1168-1169.)

    Coleman is completely inapposite to the instant case. Coleman error occurs in capital cases where a jury is determining which sentence to impose. Here, the trial court was imposing the sentence, not a jury. Presumably, the trial court would not be as passionately swayed by an argument of lack of remorsefulness from a prosecutor as would a jury. More importantly, the trial court did not rely on lack of remorsefulness as a basis for denying appellant probation.

    Appellant's conviction on count III (Pen. Code, § 12025, subd. (a)) is reversed. The sentence imposed on count IV (Pen. Code, § 12031, subd. (a)) is modified to remove the stay thereof pursuant to Penal Code section 654 and further to make the term concurrent to that imposed on count I. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward copies to all appropriate authorities.

Harris, J.

WE CONCUR

Best, P. J.
Dibiaso, J.