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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE

In re LAVALLE L., A Person Coming
Under the Juvenile Court Law.
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LAVALLE L.,

                                Defendant and Appellant.
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    Lavalle L. was declared a ward of the court (Welf. & Inst. Code, § 602) [FOOTNOTE 1] because he had brandished a firearm (count I;.Pen. Code, § 417, subd. (a)(2)) and had carried a concealed handgun (count III; Pen. Code, § 12025, subd. (b)). The court also found Lavalle had violated his previously imposed probation. At a dispositional hearing the court ordered Lavalle committed to the custody of the probation department, to be placed at the county's Los Cerros Ranch. We order the finding on count III stricken for insufficient evidence, and modify the dispositional order to specify a maximum period of confinement (§ 726) and to include a calculation of custody credits.

    Kamilah Lewis, Lavalle's ex-girlfriend, saw Lavalle standing across the street. Lavalle called, "Kamilah, look." She looked at him and saw he was holding a handgun at his waist, his hand on the "trigger part" and the barrel pointing to the side. He then put the gun behind his back. Kamilah did not know whether Lavalle put the gun inside his clothing. She walked away. Later that day Lavalle again appeared; although he did not display a gun, this time he threatened her life, saying, "I love you but I've got to kill you."

I

    Penal Code section 12025, subdivision (b) provides that any unlicensed person who "carries, concealed upon his or her person" any concealable firearm is guilty of a misdemeanor. Lavalle contends the evidence was insufficient to show he concealed the handgun on his person; he argues the statute only applies where a weapon is secreted, at least in part, within a person's clothing. The Attorney General argues that by holding the gun close to his body, and then by putting it behind his back, Lavalle "concealed" the gun within the meaning of the statute.

    Lavalle made a special effort to display the gun to Kamilah, and did so in such a way as to avoid unnecessarily drawing the attention of others to it. But one does not conceal a gun simply by neglecting to hold it over one's head or at arm's length. Nor does Lavalle's placing the gun behind his back suffice. There was no evidence that by doing so he concealed the weapon from those standing next to him on the street corner, or that he placed it behind his back preparatory to hiding it within his clothing.

    The Attorney General, quoting from People v. May (1973) 33 Cal.App.3d 888, 891, argues that a person may not "immunize himself from prosecution on a charge of possessing a concealed weapon merely by intentionally or unintentionally permitting an occasional glimpse of the weapon which otherwise would remain concealed from sight." In May, the defendant was carrying a Derringer in his back pants-pocket. The police officer initially saw only a bulge and a bit of silver at the top. When defendant turned his back to the officer and put his hands in the air, the officer looked down into the pocket and saw the gun. (Id., at p. 890.) In contrast to May, there was no evidence in the present case that the gun was "otherwise concealed from sight." While Lavalle was careful to restrict how long Kamilah saw the gun, the evidence was insufficient to prove that he concealed it from others within sight.

    The finding of carrying a concealed weapon is stricken. This does not necessitate a new dispositional hearing, because neither the probation department, in making its recommendations, nor the court, in reaching its disposition, relied on the concealed weapon finding. The basis for the recommendation, which the court stated it would follow, was that Lavalle had displayed the gun to Kamilah in a threatening manner.

Footnote 1: All further statutory references are to the Welfare and Instructions Code unless otherwise specified.