Filed 10/8/26 P. v. Hedegard CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H052868
(Monterey County
Plaintiff and Respondent, Super. Ct. No. 24CR002063)
v.
JUDD ANDER HEDEGARD,
Defendant and Appellant.
After his motion to dismiss gun charges under the Second Amendment was denied,
defendant Judd Ander Hedegard1 was convicted by jury on two misdemeanor counts of
carrying a loaded firearm in a vehicle in public. (Pen. Code, § 25850, subd. (a);
unspecified statutory references are to this Code.)2 Evidence at trial established that
defendant lived in the vehicle. Based on that evidence, defense counsel moved for
acquittal under an exemption allowing otherwise lawful possession of a loaded weapon
“at the person’s place of residence, including any temporary residence or campsite.”
(Pen. Code, § 26055.) The trial court denied the motion, ruling the exemption did not
1
Defendant informs us in his opening brief that he uses the chosen first name
“Zane,” which also appears in the record. We refer to him here by the legal name under
which he was prosecuted, intending no disrespect. Similarly, we adopt the pronouns used
in the record and in defendant’s appellate briefs.
2
Because one count was initially charged as a felony based on an allegation that
defendant was not the gun’s registered owner (see § 25850, subd. (c)(6)), this is
considered a “felony case” over which this court has appellate jurisdiction
notwithstanding reduction of the felony charge to a misdemeanor before trial. (Cal. Rules
of Court, rule 8.304(a)(2).)
apply where defendant’s car was parked on a public street at the time of his arrest. On
appeal, defendant challenges the trial court’s rulings on the motion to dismiss and motion
for acquittal. He also makes numerous arguments concerning the validity of his
convictions under the United States Constitution and California law.
As we will explain, we conclude defendant’s prosecution was constitutional and
his convictions supported by sufficient evidence. We also conclude defendant was not
entitled to a jury instruction on the section 26055 residence exemption. And even
assuming defendant was entitled to a jury instruction on the self-defense exemption under
section 26045, we find no prejudice from its absence and will therefore affirm the
judgment.
I. TRIAL COURT PROCEEDINGS
A. PRELIMINARY HEARING AND MOTION TO DISMISS
At the preliminary hearing, an officer testified to finding two loaded guns in
defendant’s car during a “welfare check.” Defendant was planning to attend a support
group meeting, where he expected to encounter another meeting attendee who had
allegedly threatened him in the past. He contacted police and waited for the officer to
arrive for “basically a civil standby in case there was another person there that he was
fearful of.”
Defendant moved to dismiss the charges under the Second Amendment, asserting
that section 25850 was facially unconstitutional. Attached to the motion as an exhibit
were sales records purporting to show that defendant was the legal owner of both guns.
After learning that a different panel of this court had rejected a facial constitutional
challenge to section 25850 in In re T.F.-G. (2023) 94 Cal.App.5th 893, defense counsel
made the additional argument that the statute was unconstitutional as applied to defendant
because he lived in his car and carried the guns for self-defense.
The trial court denied the motion to dismiss, citing New York State Rifle & Pistol
Assn., Inc. v. Bruen (2022) 597 U.S. 1 (Bruen)—which the court said “made clear that
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nothing in its analysis should be interpreted to suggest the unconstitutionality of the 43
states that had ‘shall issue’ licensing regimes under which a general desire for self-
defense is sufficient to obtain a [concealed carry] permit.” The court reasoned that if a
state “may enforce a licensing regime,” it “may also impose penalties for
noncompliance” and “it follows that there are citizens who may constitutionally be
subject to sanctions for the unlicensed carrying of a firearm.” Rejecting defendant’s as-
applied challenge, the court found no evidence of “any immediate need for self-defense”
and observed that California’s permissible “ ‘shall issue’ licensing regime” would
collapse if “any person could subjugate the licensing requirement by claiming self-
defense for the need of a firearm.” The court also acknowledged defendant’s “assertion
that he was residing in the vehicle” but concluded that “does not obviate the legitimate
need of the State in prohibiting persons from carrying a loaded firearm in a public place
or a public street without a valid concealed weapons permit or license.”
B. TRIAL EVIDENCE
Around 6:30 p.m. on March 7, 2024, defendant called police to request a “civil
standby” for a meeting he planned to attend at a church. The dispatcher told a responding
officer that “the caller stated that there was somebody possibly stalking him and that he
wanted a civil standby so that he didn’t have to shoot this other unknown person.”
Officers responded and found defendant inside his car, a Toyota Prius, which was parked
on a public street near the church.
Defendant complied when he was asked to step out of the car. He told the officers
that he had a loaded pistol “secured in a bag” between the front seats of his car, and
acknowledged he did not “yet” have a license to carry a concealed weapon. When asked
whether he had any other guns, defendant replied, “Just the one.” When asked if there
was any extra ammunition in the car, he said he thought it was “all in storage” and added
that he lived in the car. An officer testified that the car was “full of boxes” and “bags of
clothing.” The officer said it “looked like” defendant “was living out of his car.”
3
Officers searched the car and found two loaded guns: a Glock 17 in the center
console and a Glock 27 in a storage compartment on the driver’s side door. They also
found ammunition in the trunk. The officers then arrested defendant. During the
booking process, defendant provided a post office box as his address.
C. MOTION FOR ACQUITTAL
At the close of the prosecution’s case, defendant moved for acquittal based on the
section 26055 residence exemption. Defense counsel argued that defendant was “living
in the vehicle” and there was “no testimony that the vehicle was operational, that it drove
anywhere, that it drove to that location” or “that the vehicle could not be parked there.”
Counsel also cited the rule of lenity as a basis for granting the motion. Opposing the
motion, the prosecutor contrasted “a living van that is capable of allowing for amenities
and appliances” with defendant’s Toyota Prius. The prosecutor argued defendant was not
using the car “for residential purposes” at the time of his arrest but was instead “parked
on the side of the road, about to attend a meeting.”
The trial court denied the motion based on People v. Foley (1983) 149 Cal.App.3d
Supp. 33 (Foley) and Garber v. Superior Court (2010) 184 Cal.App.4th 724 (Garber),
two cases finding a former version of the residence exemption inapplicable to vehicles
that were not being used for residential purposes at the time of the offenses. The trial
court stated in part: “Here, there is evidence that Mr. Hedegard did have his vehicle
parked on a public street at the time of the alleged offense. There’s at least circumstantial
evidence that he drove the vehicle to a meeting and to that public place. For those
reasons, the Court does find that the evidence before the Court is sufficient to sustain a
conviction of such offenses on appeal, and for those reasons, that motion is denied.”
D. JURY INSTRUCTIONS AND VERDICT
Defendant asked the court to instruct the jury on the residence exemption. The
trial court indicated its possible willingness to do so, with the addition of language stating
that “a vehicle that is driving or is on a public street or thoroughfare is not considered a
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temporary residence, regardless of whether that vehicle has the capacity to function or
does function as a home or temporary home.” Defense counsel objected to the added
language, the prosecutor objected to the instruction in its entirety, and the court
ultimately declined to give any instruction on the exemption. The jury found defendant
guilty on both misdemeanor counts.
II. DISCUSSION
A. CONSTITUTIONALITY OF SECTION 25850 AS APPLIED
On appeal, defendant no longer contends section 25850 violates the Second
Amendment on its face. Defendant nonetheless argues the trial court erred in denying his
motion to dismiss because section 25850 is unconstitutional as applied to him. He also
asserts the trial evidence was insufficient to establish a constitutionally prosecutable
offense.
“An as applied challenge may seek [] relief from a specific application of a
facially valid statute or ordinance to an individual or class of individuals who are under
allegedly impermissible present restraint or disability as a result of the manner or
circumstances in which the statute or ordinance has been applied,” and “contemplates
analysis of the facts of a particular case or cases to determine the circumstances in which
the statute or ordinance has been applied and to consider whether in those particular
circumstances the application deprived the individual to whom it was applied of a
protected right.” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084.) “When a
criminal defendant claims that a facially valid statute or ordinance has been applied in a
constitutionally impermissible manner to the defendant, the court evaluates the propriety
of the application on a case-by-case basis to determine whether to relieve the defendant
of the sanction.” (Ibid.) The statute is presumed to be constitutional and “must be upheld
unless its unconstitutionality ‘clearly, positively and unmistakably appears.’ ” (Hale v.
Morgan (1978) 22 Cal.3d 388, 404.)
5
In District of Columbia v. Heller (2008) 554 U.S. 570, 630, the United States
Supreme Court held a requirement “that firearms in the home be rendered and kept
inoperable at all times … makes it impossible for citizens to use them for the core lawful
purpose of self-defense and is hence unconstitutional.” Heller did not address the
constitutionality of a separate law requiring a license to carry a handgun, whether inside
or outside the home. (Id. at pp. 575, 630–631.) In Bruen, the Supreme Court recognized
“an individual’s right to carry a handgun for self-defense outside the home.” (Bruen,
supra, 597 U.S. at p. 10.) That Second Amendment right remains “subject to certain
reasonable, well-defined restrictions.” (Id. at p. 70.) Justice Kavanaugh stressed in a
concurring opinion, necessary to the majority holding, that the decision “does not prohibit
States from imposing licensing requirements for carrying a handgun for self-defense. In
particular, the Court’s decision does not affect the existing licensing regimes—known as
‘shall-issue’ regimes—that are employed in 43 States. [¶] … [¶] Those shall-issue
regimes may require a license applicant to undergo fingerprinting, a background check, a
mental health records check, and training in firearms handling and in laws regarding the
use of force, among other possible requirements.” (Id. at pp. 79–80 (conc. opn. of
Kavanaugh, J.).) But “because any permitting scheme can be put toward abusive ends,”
the Supreme Court left open the possibility of “constitutional challenges to shall-issue
regimes where, for example, lengthy wait times in processing license applications or
exorbitant fees deny ordinary citizens their right to public carry.” (Id. at p. 38, fn. 9.)
Although section 25850 makes it a crime to carry a loaded firearm in public,
section 26010 exempts from prosecution for that offense anyone licensed to carry a
concealed weapon. Without alleging that he attempted to obtain a license or was
prevented from obtaining one for any specific reason, defendant asserts that “the Second
Amendment requires a licensing exemption for public carry of a loaded handgun when
one reasonably anticipates a threat of violence and cannot first obtain a license.”
(Capitalization omitted.) We need not consider whether defendant accurately describes
6
the scope of the Second Amendment right to bear arms; even assuming he does, reversal
is not required on this record.
Both parties ask us to treat the motion to dismiss as a motion to set aside the
information under section 995, which “allows a defendant to challenge an information
based on the sufficiency of the record made before the magistrate at the preliminary
hearing.” (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1071–1072.) In reviewing
the denial of a section 995 motion, we “ ‘in effect disregard[] the ruling of the superior
court and directly review[] the determination of the magistrate holding the defendant to
answer.’ ” (Id. at p. 1072.) We review issues of law de novo, “draw all reasonable
inferences in favor of the information” and determine whether “ ‘a reasonable person
could harbor a strong suspicion of the defendant’s guilt’ ” based on the preliminary
hearing evidence. (Ibid.) Here, the preliminary hearing evidence established that police
found two loaded guns in defendant’s car after he requested a “civil standby” because he
anticipated encountering a person he said he was “fearful of” due to past threats. Based
on defendant’s possession of multiple loaded guns (when nothing about his request for
assistance suggested one gun would be insufficient), a reasonable person could strongly
suspect that his possession of two guns was not consistent with a reasonably anticipated
threat of violence.
Nor was the evidence presented at trial insufficient to prove defendant committed
a constitutionally prosecutable offense. Defendant urges us to independently review the
record, as courts have done in criminal cases involving conduct arguably protected by the
First Amendment. “Independent review is not the equivalent of de novo review ‘in
which a reviewing court makes an original appraisal of all the evidence to decide whether
or not it believes’ the outcome should have been different” but requires “ ‘ “ ‘an
independent examination of the whole record’ ” ’ ” (“including a review of the
constitutionally relevant facts ‘ “de novo, independently of any previous
determinations” ’ ”) “to determine whether the facts satisfy the rule of law.” (In re
7
George T. (2004) 33 Cal.4th 620, 634.) Assuming without deciding that independent
review is appropriate in the Second Amendment context generally and under the
particular circumstances presented here, we conclude the facts satisfy the law even as
defined by defendant. Where defendant told police he had only one gun, but two loaded
guns were found in his car, the evidence strongly supports an inference that he was not
carrying the guns for a reason that would be constitutionally protected under his
interpretation of the Second Amendment.
We note defendant does not challenge California’s concealed carry licensing
scheme itself, and there was no evidence presented at the preliminary hearing or at trial to
support the assertion that he had no “practical ability to obtain a license” under the
circumstances. Defendant has not shown that his prosecution or conviction under
section 25850 was unconstitutional.
B. APPLICABILITY OF SECTION 26045 SELF-DEFENSE EXEMPTION
Section 26045, subdivision (a) exempts from prosecution for the relevant offense
“the carrying of any loaded firearm, under circumstances where it would otherwise be
lawful, by a person who reasonably believes that any person or the property of any person
is in immediate, grave danger and that the carrying of the weapon is necessary for the
preservation of that person or property.” For purposes of the self-defense exemption,
“ ‘immediate’ means the brief interval before and after the local law enforcement agency,
when reasonably possible, has been notified of the danger and before the arrival of its
assistance.” (§ 26045, subd. (c).) Defendant did not raise the exemption in the trial
court, and the jury was not instructed about it. On appeal, defendant contends the court
had a sua sponte duty to instruct on the self-defense exemption because it was supported
by substantial evidence. He also contends retrial must be barred because the evidence is
insufficient to prove beyond a reasonable doubt that the exemption does not apply.
Assuming without deciding that an instruction on the self-defense exemption was
8
required, we see no prejudice on this record and conclude the verdict is supported by
sufficient evidence.
“ ‘ “It is settled that in criminal cases, even in the absence of a request, a trial court
must instruct on general principles of law relevant to the issues raised by the
evidence” ’ ”and “ ‘ “necessary for the jury's understanding of the case.” ’ ” (People v.
Brooks (2017) 3 Cal.5th 1, 73.) “It is also well settled that this duty to instruct extends to
defenses ‘if it appears … the defendant is relying on such a defense, or if there is
substantial evidence supportive of such a defense and the defense is not inconsistent with
the defendant's theory of the case.’ ” (Ibid.) Although defendant did not actually argue
self-defense at trial, we see no inconsistency between that defense and defendant’s theory
of the case, nor does the Attorney General identify any. An instruction on the self-
defense exemption was thus required if, and only if, there was substantial evidence to
support it. In considering whether the evidence supported giving the instruction, we do
not “ ‘determine the credibility of the defense evidence, but only whether “there was
evidence which, if believed by the jury, was sufficient to raise a reasonable doubt” ’ ” as
to the defendant’s guilt. (People v. Mentch (2008) 45 Cal.4th 274, 288.)
We acknowledge the evidence here which, if believed by the jury, could have
supported an element necessary to acquittal on self-defense grounds. According to what
the dispatcher told an officer after defendant contacted police, defendant had “stated that
there was somebody possibly stalking him and that he wanted a civil standby so that he
didn’t have to shoot this other unknown person.” When officers responded, defendant
told them he had a single loaded gun in his car. Defendant’s choice to contact police and
his statements that he might “have to shoot” someone who was “possibly stalking him”
could, if believed, point to defendant’s subjective belief that he was in “immediate, grave
danger” such that he believed carrying a loaded gun was necessary for self-defense.
(§ 26045, subd. (a).) Beyond defendant’s own statements, there was little evidence as to
whether that belief was objectively reasonable under the circumstances. But we need not
9
decide whether an instruction on the self-defense exemption was required because, even
assuming it was, a failure to give the instruction was not prejudicial.
The parties agree that prejudice should be determined under the standard
applicable to violations of state law, such that reversal would be appropriate only if “the
court, ‘after an examination of the entire cause, including the evidence,’ is of the
‘opinion’ that it is reasonably probable that a result more favorable to the appealing party
would have been reached in the absence of the error.” (People v. Watson (1956)
46 Cal.2d 818, 836.) Applying that undisputed standard, we see no prejudice to
defendant on this record. The jury was instructed that it could find defendant guilty only
if he “knew that he was carrying a firearm” under CALCRIM No. 2530, and the
prosecutor addressed that point in closing argument. In finding defendant guilty on both
counts, the jury necessarily found he knowingly carried both guns, and it necessarily
disbelieved the implication in defendant’s statement to police that he knew of only one
gun in the car. We therefore see no reasonable probability that a self-defense instruction
would have led the jury to (1) credit defendant’s statement as an expression of subjective
belief in the need for self-defense and (2) conclude that the uncorroborated belief was
objectively reasonable where defendant knowingly carried multiple loaded guns but told
police about only one when asked. The jury was entitled to disbelieve defendant’s
statements to police, which constituted the only evidence to support a self-defense
argument.
C. APPLICABILITY OF SECTION 26055 RESIDENCE EXEMPTION
Defendant contends the trial court should have granted his motion for acquittal
based on the section 26055 residence exemption, and should have instructed the jury on
that exemption. He also argues the evidence is insufficient to prove the exemption does
not apply. We review de novo the issue of whether, on the undisputed facts presented,
defendant’s car constitutes a “place of residence” as that term is used in section 26055.
“ ‘ “As in any case involving statutory interpretation, our fundamental task here is to
10
determine the Legislature’s intent so as to effectuate the law’s purpose.” ’ ” (People v.
Scott (2014) 58 Cal.4th 1415, 1421.) “ ‘ “We begin by examining the statute’s words,
giving them a plain and commonsense meaning.” ’ ” (Ibid.) “[W]e consider the
language of the entire scheme and related statutes, harmonizing the terms when possible.”
(Riverside County Sheriff’s Dept. v. Stiglitz (2014) 60 Cal.4th 624, 632; see People v.
Gonzalez (2014) 60 Cal.4th 533, 537.)
Section 25850, subdivision (a) penalizes carrying a loaded gun “on the person or
in a vehicle while in any public place or on any public street” in a prohibited area.
Against that backdrop, section 26055 provides: “Nothing in Section 25850 shall prevent
any person from having a loaded weapon, if it is otherwise lawful, at the person’s place
of residence, including any temporary residence or campsite.” We begin by noting that
section 25850 expressly prohibits carrying a loaded gun “in a vehicle … on any public
street” whereas section 26055 refers to a “place of residence, including any temporary
residence or campsite.” It is not clear from the language of the statute itself that a car
parked on a public street would qualify as a “place of residence,” even where that term is
defined to include “any temporary residence or campsite” and a person is living in the
car.
In Foley and Garber, the two cases relied on by the trial court in denying the
motion for acquittal, courts considered whether a substantively identical exemption in
former section 12031, subdivision (l) could be applied to motor vehicles. Foley involved
a van “driving very slowly” and then stopping on a public street for the driver to engage
in conversation with a suspected prostitute. (Foley, supra, 149 Cal.App.3d Supp. at
p. 35.) When police investigated, they found loaded guns in the van. (Id. at p. 36.) The
driver asserted the residence exemption applied because he lived in the van, which was
registered with the Department of Motor Vehicles as a motor home. (Id. at pp. 36–37.)
The Superior Court’s appellate division disagreed, reasoning: “The primary purpose of
the Weapons Control Law is to control the threat to public safety in the indiscriminate
11
possession and carrying about of concealed and loaded weapons. We hold that that
purpose would be frustrated by interpreting ‘place of residence’ to include any motor
vehicle while ‘in transit’ no matter what use is made thereof when parked on private
property. We find this to be a practical, common sense construction of the relevant
statutes.” (Id. at p. 39.)
The Foley court continued: “Defendant’s house car or van, as with any house car
or van, has two essential functions: (1) to serve as a means of transportation or a motor
vehicle whenever on a public street or public property or in transit, and (2) the capability
to function as a ‘home’ or ‘place of residence’ when legally upon private property and
being utilized as a ‘place of residence.’ In our day of ultra mobility, one may consider
his jet airplane his ‘place of residence’ if he so desires, but when the plane is airborne, he
is subject to FAA rules and regulations, just as he is subject to airport regulations when
based at an airport; one may consider his yacht his ‘place of residence,’ but he is subject
to maritime laws when upon the sea, and to harbor regulations when berthed; and one
may consider his house car or van his home or ‘place of residence,’ but when he drives
his car or van on the public streets or highways or causes said car or van to be thereupon
while he is present, he is subject to arrest and successful prosecution for possession of
concealed or loaded firearms should he be arrested with those items discovered in his car
or van under circumstances similar to those before us.” (Foley, supra, 149 Cal.App.3d
Supp. at p. 39.)
Garber involved a van and trailer parked in the parking lot of a public park, which
closed at 10:30 p.m. (Garber, supra, 184 Cal.App.4th at p. 726.) The occupant of the
vehicle, who said he lived in the trailer, acknowledged traveling to the park around
5:00 p.m. to walk his dog. (Id. at 728.) After he was involved in an incident in the
parking lot between 6:30 and 6:45 p.m., police found a loaded gun in the trailer. (Id. at
pp. 726–727.) The Court of Appeal concluded Garber was not entitled to an instruction
on the residence exemption where he “did not use his mobilehome exclusively as a place
12
of residence” but had instead driven it to the park to walk his dog. (Id. at p. 737.)
Because “Garber was not using his mobilehome for residential purposes” at the time of
the alleged offenses, the court held, “he was not entitled to have the jury instructed on a
‘place of residence’ defense.” (Id. at p. 726.)
We acknowledge the circumstances presented here differ from those presented in
Foley and Garber. Unlike in Foley, defendant was not seen driving the vehicle in which
he assertedly lived—and unlike in Garber, there was no other evidence establishing that
he had done so in the recent past or would need to do so in the near future. But this case
does resemble Foley in that, at the time guns were found in the vehicle, it was stopped on
a public street. We are persuaded by the Foley court’s analysis that given the
Legislature’s overarching purpose in banning the carrying of loaded guns in public, and
specifically including vehicles on public streets, it presumably did not intend to exempt
from prosecution the carrying of loaded guns in certain vehicles on public streets simply
because those vehicles are also used for other purposes. That defendant’s car was not
engaged in active travel here need not change the result, as the Foley court observed in
stating that airplanes would be “subject to airport regulations” while grounded and yachts
“to harbor regulations when berthed” just as a motor vehicle would be subject to
applicable regulations while parked on a public street.3 (Foley, supra, 149 Cal.App.3d
Supp. at p. 39.) We note that the language of the residence exemption has not changed
since Foley was decided more than 40 years ago (although the exemption has since been
moved to a new section of the Penal Code) and that our interpretation of the exemption is
consistent with Garber, the most recent published opinion to address the issue.
Defendant’s reliance on the rule of lenity and the canon of constitutional doubt
does not change our analysis. The rule of lenity, which generally requires ambiguity in a
3
We need not and do not consider whether the residence exemption might apply
if defendant’s car had been parked in a “public place” other than the “public street” at
issue here. (See § 25850, subd. (a).)
13
criminal statute to be resolved in a defendant’s favor, “ ‘ “does not apply every time there
are two or more reasonable interpretations of a penal statute” ’ ” but “ ‘ “only if the court
can do no more than guess what the legislative body intended; there must be an egregious
ambiguity and uncertainty to justify invoking the rule.” ’ ” (People v. Reynoza (2024)
15 Cal.5th 982, 1012.) In other words, “although true ambiguities are resolved in a
defendant’s favor, an appellate court should not strain to interpret a penal statute in [a]
defendant’s favor if it can fairly discern a contrary legislative intent” as we have
discerned here. (People v. Avery (2002) 27 Cal.4th 49, 58.) Similarly, the canon of
constitutional doubt provides “ ‘ “that a court, when faced with an ambiguous statute that
raises serious constitutional questions, should endeavor to construe the statute in a
manner which avoids any doubt concerning its validity.” ’ ” (People v. Leiva (2013)
56 Cal.4th 498, 506–507.) Defendant urges us to interpret section 26055 in his favor to
avoid a possible conflict with the Second Amendment. But “ ‘ “avoidance of a difficulty
will not be pressed to the point of disingenuous evasion.” ’ ” (People v. Gutierrez (2014)
58 Cal.4th 1354, 1373.) Here, our interpretation of section 26055 does not raise serious
constitutional questions under the Second Amendment because it does not preclude those
who obtain a concealed carry license from exercising their constitutional right to carry a
gun for self-defense.
D. SUFFICIENCY OF EVIDENCE THAT GUNS WERE LOADED FIREARMS
The jury was instructed that a firearm “is any device designed to be used as a
weapon, from which a projectile is expelled or discharged through a barrel by the force of
any explosion or other form of combustion.” The jury was further instructed: “As used
here, a firearm is loaded if there is an unexpended cartridge or shell in the firing chamber
or in either a magazine or clip attached to the firearm. An unexpended cartridge or shell
consists of a case that holds a charge of powder and a bullet or shot.” Defendant
contends the evidence was insufficient to prove the guns found in his car were loaded
firearms under those definitions.
14
Officers found two guns in defendant’s car: one in the center console and one in
the driver’s side door. An officer first testified to finding a loaded Glock 27 in the center
console, and said he was able to distinguish “actual” and “functioning” firearms from
“imitation” or “replica” firearms based on his training and experience over a 26-year
career. The same officer was later recalled and testified it was a Glock 17, not a Glock
27, he had found in the center console of defendant’s car. Defendant notes the officer
never specifically testified that the Glock 17 was loaded or functional. But the jury was
entitled to credit the officer’s testimony that he simply misspoke when he initially
described the gun he found as a “Glock 27” and treat his testimony about that gun as
accurately describing the Glock 17 that he found in the center console.
Another officer found a Glock 27 in a storage compartment on the driver’s side
door, after a police dog trained to detect firearms and ammunition “alerted on” that
location. The officer testified that the gun “had a loaded magazine to capacity with nine
rounds and one round that was in the chamber” and further explained: “So when I say
loaded, the magazine that goes into the gun had nine rounds inside of it, so it had nine
rounds in the magazine. And when I say one round in the chamber, that means with one
round in the slide with the ability to immediately shoot. So one loaded bullet with nine
extra rounds in the gun.” The officer said he was able to distinguish between a “real
operating firearm” and an “imitation firearm” based on his training and experience. He
also testified to finding “an assortment of magazines and ammunition” after the police
dog “gave a strong positive alert to the rear trunk space of the vehicle.” Some of that
ammunition matched the Glock 27. Viewed as a whole, the evidence was sufficient for a
jury to find the Glock 27 was a “loaded firearm” as that term is used in section 25850.
III. DISPOSITION
The judgment is affirmed.
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____________________________________
Grover, Acting P. J.
WE CONCUR:
____________________________
Lie, J.
____________________________
Chung, J.*
H052868
People v Hedegard
__________________
*Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.