Firearms/Explosives/Weapons
Category > Firearms/Explosives/Weapons
Updated 3/5/2024Evidence did not support the firearm possession finding where there was no evidence of dominion and control by the minor. Evidence was insufficient to support the juvenile court’s finding that the minor possessed a concealed firearm. The only evidence tying the minor to the gun used in the present shooting was that he had once touched it, and he was in the car when his friend fired it. But proximity or access to the gun does not support possession. Likewise, the fact that he held a gun in his Facebook profile and spoke about his desire to buy a gun did not support the finding. Without evidence that he exercised dominion and control of the gun used in the shooting the evidence was insufficient to support the finding.id: 26803
The evidence was insufficient to support defendant’s conviction for carrying a concealed dirk or dagger where he was found with a Swiss army knife with a blade open.Defendant was convicted of carrying a concealed dirk or dagger in violation of Penal Code section 21310 based on his possession of a Swiss army knife with one of the blades fully extended. However, there was no substantial evidence showing the open blade of the knife was “locked into position” with the meaning of section 16470 (defining dirk or dagger) because the knife could be closed simply by folding the blade into the handle. id: 24742
Testimony that defendant carried a pistol was insufficient to support his conviction for assault with a semiautomatic firearm.The victim testified the men who entered his house were armed with “pistols.” This was insufficient to support his conviction under Penal Code section 245, subd.(b) for assault with a semiautomatic firearm. id: 24469
The trial court prejudicially erred by failing to instruct knowledge that the firearm is loaded is an element of the offense of allowing a passenger in a vehicle to carry a loaded firearm. Defendant was convicted of permitting a person to carry a loaded firearm in a vehicle under Penal Code section 26100, subd.(a). The provision requires proof that defendant knew the gun was loaded. Although the prosecution presented sufficient evidence to prove that element, the trial court prejudicially erred by failing to instruct that the prosecution was required to prove that fact.id: 23949
Defendant did not violate the statute prohibiting the carrying of a concealed dirk or dagger because the knives were found in his backpack and not on his person.The evidence was insufficient to support defendant’s conviction for carrying a concealed dirk or dagger on his person in violation of former Penal Code section 12020, subd. (a)(4) because the knives he possessed were inside of his backpack and thus, not on his person.id: 23154
Evidence did not support the possession of a switchblade conviction where the minor’s knife did not open automatically with a wrist flip. The minor was found to have possessed a switchblade in violation of Penal Code section 653K (now codified at section 17235). However, the knife the minor possessed was not a switchblade within the meaning of the statute as it had a thumb stud that prevented it from opening absent pressure to the stud. The evidence did not support the finding. id: 22980
The section 12031(a)(c) gang allegation requires proof of felonious conduct other than the gun possession underlying the section 12031(a)(1) charge even though the section 12031(a)(1) conduct can support multiple offense allegations. The juvenile court found the minor violated Penal Code section 12031(a)(1) - carrying a loaded firearm in a vehicle. The section 12031,subd. (a)(2)(c) gang allegation elevates the otherwise misdemeanor offense to a felony. The offense must be reduced to a misdemeanor because the prosecution failed to prove defendant engaged in “felonious criminal conduct” for purposes of the gang allegation as that requirement refers to felonious conduct distinct from the underlying misdemeanor gun possession.id: 22297
Defendant did not constructively possess the gun found in the motel room under the codefendant’s mattress. Defendant was convicted of being a felon in possession of a firearm along with the Penal Code section 186.22, subd.(b) gang allegation and the section 186.22, subd.(a) gang participation offense. However, evidence did not support the gun possession conviction which was based on a theory of constructive possession, where the defendant and a gang member were partying with prostitutes in a motel room, and the gun was located under the codefendant’s mattress. The evidence, including the testimony of the gang expert, did not show defendant had a right to control the firearm. The gang enhancement and substantive offenses were also reversed because they were based on the firearm possession charge.id: 22201
A defendant’s continuous possession of a single firearm does not permit multiple punishment.Defendant argued the trial court erred by imposing consecutive sentences for the three firearm possession convictions. Because he had continuous possession of the firearm, section 654 required that imposition of sentencing be stayed on two of the possession counts.id: 21683
Supreme Court strikes down D.C. ban on the possession of firearms.The District of Columbia banned the carrying of unregistered firearms, and registration of firearms was prohibited. After finding that the Second Amendment protects an individual right to bear arms, the Supreme Court, in a 5-4 opinion authored by Justice Scalia, held that the District’s ban on handguns violated the Second Amendment to the extent that it prohibited the possession of a firearm in the home for self-defense. The Court also struck down a District law requiring that any lawful firearm in the home be disassembled or protected by a trigger lock. Justices Stevens and Beryer filed dissenting opinions.id: 21429
Supreme Court holds that Second Amendment protects individual right to own firearms.The Second Amendment provides, “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” In a 5-4 opinion written by Justice Scalia, the Supreme Court held that the Second Amendment protects an individual right to possess a firearm unconnected with service in the militia, and to use that firearm for traditionally lawful purposes, such as for self-defense in the home. The Court said, however, that the Second Amendment does not protect a right to keep and bear any weapon whatsoever, in any manner whatsoever, or for any purpose. In particular, the Court explained, the Second Amendment does not foreclose bans on the possession of firearms by felons or the mentally ill or in schools or government buildings or laws imposing conditions or qualifications on the commercial sale of firearms. Justice Stevens and Justice Breyer filed dissenting opinions.id: 21428
Defendant could not be convicted twice of violating section 12031 for possessing the same firearm.Defendant was convicted of possession of a loaded firearm while a member of a gang (Penal Code section 12031, subd.(a)(2)(c)) and possession of a loaded firearm for which he was not the registered owner (section 12031, subd.(a)(2)(f).) However, section 12031 (a)(2) is a penalty provision applicable to violations of section 12031, subd.(a)(1). Only one of the convictions was
proper.id: 21066
A box cutter does not constitute a weapon within the meaning of section 626.10.Penal Code section 626.10 prohibits students from bringing or possessing a deadly weapon on school grounds. A box cutter does not constitute a "razor with an unguarded blade" and therefore a weapon within the meaning of section 626.10, subd.(a).id: 18007
Defendant could only be charged with one count of brandishing for each incident regardless of how many people were present.At two separate times, the minor waived a sharp instrument in a threatening manner. Each time, two people were present. The four convictions for violating Penal Code section 417, subd.(a)(1) were improper as he could only be charged and convicted of one count of brandishing a deadly weapon in connection with each incident (for a total of two counts) no matter how many people were present and witnessed his actions.id: 18771
Court erred in finding a rifle was an AK series assault weapon under the AWCA since it was not on the Attorney General's published list.The trial court erred in declaring that defendant's rifle was an AK series assault weapon under Penal Code section 12276, subd.(a)(1)(A) (enacted as part of the Assault Weapons Control Act of 1989) since it had not been identified as such in the identification guide published by the Attorney General. The court lacked the authority to declare that the rifle in question was similar to one of the listed weapons, thus satisfying the test for a "series" weapon stated in section 12276, subd.(e).id: 14892
In a prosecution for possession of a "short-barreled rifle" under section 12020, subd.(a)(1), the prosecution was required to prove that defendant knew of the rifle's shortness.Penal Code section 12020, subd.(a)(1) prohibits the possession of a variety of weapons. The provision is not a "public welfare offense" and the prosecution must prove the possessor's knowledge of the weapon's illegal characteristics. Moreover, where as here, the prohibited weapon is a "short-barreled rifle" - in this case a rifle that had been altered to reduce
its length to less than 26 inches - the prosecution need only establish the defendant's knowledge of the shortness of the rifle, not its precise dimensions.id: 19062
Instruction on carrying a sharp instrument in prison failed to require that the instrument actually be sharp. Defendant was convicted of carrying a “sharp instrument” while in custody pursuant to Penal Code section 4502. The court instructed that “a sharp instrument is an instrument that can be used to inflict injury and that is not necessary for the inmate to have in his possession.” The instruction was erroneous since it allowed the jury to conclude the instrument in question did not have to be sharp, as that term is commonly used. The error was prejudicial where the prosecutor focused on that instruction during closing argument.id: 20841
A conviction of possession of live ammunition requires evidence that the bullets are in fact live. The evidence was insufficient to support the minor's conviction for possessing live ammunition under Penal Code section 12101, subd.(b)(1) where there was no testimony showing the rounds taken from the gun were live. There was no testimony that the
bullets were inspected or test fired. The only testimony showed that the bullets that were in the gun were removed for booking purposes. There was no testimony that removal of the bullets was
necessary for safety purposes.id: 19164
A person who possesses three kinds of ammunition at once commits a single violation of possession of live ammunition by a minor. Defendant committed only a single violation of Penal Code section 12101, subd.(d) by simultaneously possessing three
different kinds of ammunition.id: 19333
The trial court erred by imposing full term consecutive offenses for criminal threats and possession of a weapon in custody.Defendant was convicted of making criminal threats against a jail guard (Penal Code section 422) and possession of a weapon in
custody (section 4502). The trial court ordered full term consecutive sentences. However, while section 4502 requires that the defendant be sentenced consecutively as that count, the law did not provide for full term consecutive sentencing. The sentence on one count had to be imposed as a subordinate term.id: 19861
The standard workout glove containing sand was not a sandbox within the meaning of section 12020, subd.(a)(1).Defendant battered the victim with a standard weighted workout glove containing sand in the palm area. He was convicted of possession of a dangerous weapon under Penal Code section 12020, subd.(a)(1). However, the workout glove is not within the list of weapons prohibited by the last clause of section 12020, subd.(a)(1), which derives from the Dangerous Weapons Control Law of 1923.id: 20094
Brandishing a loaded firearm under section 417, subd.(b) requires proof that the offense took place at a day care center or similar facility.Defendant was improperly convicted of two counts of exhibiting a loaded firearm in violation of Penal Code section 417, subd.(b). The trial court failed to instruct on the element that the offense took place at a day care center or similar facility. However, instead of reversing the convictions, the court reduced them to misdemeanor counts under section 417, subd. (a)(2) which were supported by the evidence.id: 17681
It is logically inconsistent to inflict great bodily injury and use a gun "in the commission" of the offense of carrying a concealed firearm in a vehicle.Defendant was convicted of carrying a concealed firearm in his car. The jury thereafter found true the enhancement allegations that he personally used a firearm and inflicted great bodily injury in connection with the charge. However, it is logically inconsistent to inflict great bodily injury and use a gun "in the commission" of the offense of carrying a concealed firearm in a vehicle. The true findings on the allegations were stricken.id: 17666
The police lacked probable cause to arrest defendant for violating section 12031 since there was no showing the weapon was possessed in an incorporated city or a prohibited area of an unincorporated territory.The police lacked probable cause to arrest defendant for possessing a loaded firearm in a public place under Penal Code section 12031. The provision only criminalizes such possession if it occurs in an incorporated city or in a prohibited area of an unincorporated territory. Defendant was stopped in the Cameron Park area which is in an unincorporated part of El Dorado County. There was no showing that the stop occurred in a prohibited area in an unincorporated territory and no evidence that the police acted under a reasonable mistake of fact on this point. The evidence seized after the arrest should have been suppressed.id: 18090
To establish the elements of section 186.22, in order to elevate weapon possession to a felony, the prosecution must prove felonious conduct distinct from the otherwise misdemeanor gun possession.Penal Code section 12031,subd. (a)(1) identifies a misdemeanor offense of carrying a loaded firearm in public. Subdivision (a)(2)(c) elevates the offense to a felony if committed by "an active participant in a criminal street gang" as defined in section 186.22, subd.(a) In order to establish the elements of section 186.22, among other things the prosecution must prove the charged gang member willfully promoted, furthered or assisted members of his gang in felonious criminal conduct of carrying a loaded firearm in public or carrying a concealed weapon on his person. This applies to the substantive charge under section 186.22, subd.(a) as well as the gun offense.id: 19911
To avoid an equal protection violation section 12021, subdivision (c) must be extended to all those who committed qualifying misdemeanors at a time when the offenses were not listed in section 12021(c) and thus did not subject them to a firearms prohibition.Penal Code section 12021 prohibits any person convicted of a specified misdemeanor from possessing a firearm. Defendant was convicted in 1992 of spousal abuse and at that time the offense was not one of the listed misdemeanors supporting a violation of section 12021, subdivision (c). In 1993, the statute was amended to include spousal abuse. Defendant, unlike persons who committed misdemeanors prior to January 1, 1991, could not seek a modification or elimination of the weapons prohibition. However, the court determined this to be an equal protection violation in that section 12021, subdivision (c) denied the opportunity for relief to post-1991 misdemeanants who suffered qualifying convictions at a time when the convictions did not subject them to the firearms prohibition because the misdemeanors of which they were convicted had not yet been added to the statute.id: 9538
Bread knife with no sharp edges, no stabbing point, no handguards, and no stiff blade was not a dirk or dagger as a matter of law.Defendant was convicted of possession of a concealed dirk or dagger pursuant to Penal Code section 12020, subdivision (a). The knife in question was a common bread knife. It had one dull serrated edge and one blunt edge. The blade was eight inches long and the wooden handle about four inches. There were no handguards to prevent the wielder's hand from slipping onto the blade if it was used to stab. The blade itself flexed noticeably when the point was applied to an object. The court erred in denying defendant's motion to exclude the knife from evidence on the basis the knife was not a dirk or dagger as a matter of law.id: 10642
A pellet gun is not a firearm for purposes of assault with a firearm or unlawfully exhibiting a firearm in an angry manner.Appellant argued the court erred in finding the pellet gun he used was a firearm for purposes of assault with a firearm (Penal Code section 245, subdivision (a)(2)) and unlawfully exhibiting a firearm in an angry manner (section 417, subdivision (a)(2)). A pellet gun, which operates by use of compressed air, is not a firearm under these provisions because it does not propel a shot through explosive means.id: 10635
Simple possession of a destructive device is a lesser included offense of reckless or malicious possession.Defendant was convicted of reckless or malicious possession of a destructive device under Penal Code section 12303.2. The court erred in refusing to instruct on simple possession of a destructive device (section 12303) as a lesser included offense. The error was harmless as the jury rejected the lesser offense by their finding true the special circumstance allegation of bomb murder.id: 10672
Court's comments showed it misunderstood that willful discharge of firearm provision requires proof of an intent to fire the weapon.The minor was found to have violated Penal Code section 246.3 - willful discharge of a firearm in a grossly negligent manner. When defense counsel asked the minor if he believed the gun was loaded, the trial court stated that was immaterial to a finding of gross negligence. However, because the statute prohibits willfully discharging a firearm, proof of an intent to fire the weapon was required. The finding that appellant violated section 246.3 was reversed.id: 10647
Firearm use enhancement was improperly added to defendant's conviction of posssession of a short-barreled shotgun.Defendant was convicted of possession of a short-barreled shotgun under Penal Code section 12020, subdivision (a). The court added a three year enhancement under section 12022.5, subdivision (a) for use of the firearm in the commission of the crime as defendant used the weapon to strike the victim on the head. However, the enhancement did not apply as defendant's use of the weapon as a club in no way furthered the crime of possession.id: 10654
Late registration of assault weapons does not provide an affirmative defense to possession charges but may assist in reducing the offense to an infraction.Defendant was convicted of possession of two assault weapons in violation of Penal Code section 12280, subdivision (b). He argued reversal of the conviction was required because the court erred in excluding evidence that he registered the weapons. The court excluded the evidence because the registration occurred after the forgiveness period established in section 12285, subdivision (f). However, the evidence should have been considered for the limited purpose of determining whether the offenses were punishable as infractions. Appellant may not have established all of the conditions for having a first time offense punished as an infraction. Therefore, the case was remanded for the limited purpose of determining whether the offenses may be reduced to infractions.id: 10660
In determining whether a knife has a blade longer than 2-1/2 inches for purposes of section 626.10, subdivision (a) only the sharpened portion should be measured.Penal Code section 626.10, subdivision (a), outlaws possession on a school campus of a knife having a blade longer than 2-1/2 inches. In determining whether a knife has a blade longer than 2-1/2 inches, only the sharpened portion should be measured and not the entire metal portion of the knife as urged by the prosecutor.id: 10656
Explosion of destructive device causing injury provision requires injury to someone other than defendant.Defendant was convicted of explosion of a destructive device pursuant to Penal Code section 12309. However, the conviction was reversed because the only bodily injury inflicted was to himself and section 12309 requires the infliction of injury upon another person.id: 10653
Shotgun was not loaded as a matter of law where there was no shell in the firing chamber.Defendant was convicted of possession of methamphetamine while armed with a loaded, operable firearm in violation of Health and Safety Code section 11370.1, subdivision (a). The shotgun was a single-shot shotgun. When it was seized it did not have a shell in the firing chamber. There were, however, three shells located in a covered compartment at the rear of the shotgun's stock. It was not possible to fire a shell from that location and a shell would have to be placed by hand in the chamber before it could be fired. As a matter of law, the shotgun was not loaded within the meaning of section 11370.1.id: 10671
Court erred in denying defendant's request to admit the prior misdemeanor convictions and thereby withhold the nature of the conviction from the jury.A defendant charged with possession of a firearm after the conviction of prior specified misdemeanors (Penal code section 12021, subdivision (c)(1)) may admit he or she has suffered one or more prior convictions within the meaning of that section and thereby withhold the nature, but not the fact, of the convictions from the jury.id: 10646
An ordinary hunting knife was not a dirk or dagger under the applicable statutory definition.An ordinary hunting knife is not a knife or other instrument . . . primarily designed, constructed, or altered to be a stabbing instrument designed to inflict great bodily injury or death, as provided in Penal Code section 12020, subdivision (c)(24).id: 10637
The device defendant carried required assembly to be used as a knife and therefore was not a dirk or dagger within the meaning of the statute.Defendant was convicted of carrying a concealed dirk or dagger in violation of Penal Code section 12020, subdivision (a). The statute proscribes only instruments capable of ready use as a stabbing weapon. The device defendant carried required some degree of assembly to be used as a knife and was not so capable.id: 15550
Folding knife was not a "dirk" or "dagger" where the blade was not exposed and locked into position.Evidence was insufficient to establish the knife recovered in the search was a "dirk or dagger" within the meaning of Penal Code section 12020, subdivision (e). Under a recent amendment to the provision, folding knives and pocket knives only fit the definition of a "dirk or dagger" if the blade of such knife is exposed and locked into position. There was no evidence in the present case that the blade of the folding knife in defendants's pocket was exposed and locked into position - as opposed to being closed and retracted into its handle.id: 15537
Conviction of possession of a dirk or dagger requires proof that the defendant knew the device was a weapon and carried it for that purpose.Possession of a concealed dirk or dagger as defined in the 1995 amendment is not the sort of public welfare or regulatory offense for which strict criminal liability is imposed. The prosecution must prove that a defendant charged with a violation of Penal Code section 12020, subdivision (a) knew that he or she possessed a device "capable of ready use as a stabbing weapon that may inflict great bodily injury or death" and carried it for use as a weapon. The court erred in instructing that defendant's intent was irrelevant.id: 15530
Court had a sua sponte duty to define "dangerous fireworks" in a prosecution for illegal possession of such fireworks.The trial court had a sua sponte duty to define the term "dangerous fireworks" when it instructed the jury on the elements of the crime of illegally possessing dangerous fireworks in violation of Penal Code section 12677. The term has a technical meaning peculiar to the law. However, the error in failing to so instruct was harmless under the Chapman standard where the closing argument of defense counsel impliedly conceded that the fireworks were dangerous.id: 15532
Intoxicated driver was not in the "immediate personal possession" of a weapon where the gun was in a pouch on the passenger side of an unlocked toolbox in the bed of the pickup truck.Health and Safety Code section 11550, subdivision (e) imposes an additional penalty for anyone under the influence of specified controlled substances while in the "immediate personal possession" of a loaded, operable firearm. The provision did not apply in the instant case where the firearm was inside a pouch on the passenger side of an unlocked toolbox in the bed of a pickup truck defendant was driving.id: 15542
Evidence did not support conviction of possession of a flechette dart since the tail fins were less than 5/16th of an inch long.Defendant was convicted under Penal Code section 12020(c)(6). However, there was no substantial evidence that the items he possessed met the statutory definition of a flechette dart in that the tail fins were not 5/16 of an inch long. The word "approximately" in the statute applies only to the overall dart length, not to the tail fin measurement.id: 14893
Under section 654, exhibiting a firearm in the presence of several officers may only be punished once.Defendant exhibited a firearm in a threatening manner in the immediate presence of several peace officers in violation of Penal Code section 417, subd.(c). However, under Penal Code section 654, only a single punishment was proper regardless of the number of officers present. The crime listed in section 417, subd.(c), by its definition is not committed upon an officer, but only in the presence of an officer. The multiple victim exception to section 654 requires multiple victims, not multiple observers. Only when the exhibition of the firearm becomes an assault do the observers become victims, and the single act warrants multiple punishment.id: 14896
Court erred in failing to instruct the jury that to be guilty of possessing a cane sword, a person must know the cane actually conceals a weapon.Defendant was convicted of possession of a cane sword under Penal Code section 12020, subd. (a). This is not a strict liability offense. The trial court erred in failing to instruct the jury that, to be guilty of possessing a cane sword, a person must know the cane actually conceals a sword.id: 16565
Statutory prohibition of possession of a "razor with an unguarded blade" does not encompass possession of a razor blade alone.Penal Code section 626.10, subd.(a), prohibits possession of "a razor with an unguarded blade." Since the evidence established that the defendant possessed a "razor blade" alone rather than a "razor with an unguarded blade," the juvenile court's finding that he violated section 626.10, subd.(a) was reversed.id: 14895
Unique object which resembled a cassette tape but had various pull-out features including a locking knife did not fit the statutory definition of a "dirk or dagger."Evidence was insufficient to support defendant's conviction for possession of a concealed dirk or dagger under Penal Code section 12020, subd.(a). The object he possessed was unique and resembled an audio cassette tape. However, much like a swiss-army knife it had various gadget options including a magnifying glass, tweezers, plastic toothpick, can opener, and a knife which could be locked into position. The knife can only be extracted by manual manipulation using both hands. It did not fall within the statutory definition of "dirk or dagger."id: 14897
Possession of a silencer requires proof the defendant knew of the characteristics which make it illegal.Defendant was convicted of possession of a silencer for firearms under Penal Code section 12520. In order to be convicted of this offense the prosecution must prove the defendant knew or should have known about the specific characteristics of the item which make its possession illegal. The failure to instruct on this element was harmless under the <i>Chapman</i> test where the evidence showed the defendant knew the weapon had a silencer.id: 14894
Weapon possession appeal was not moot where the underlying prior conviction was subsequently rendered invalid.Defendant was convicted of Penal Code 12021.1, possession of a firearm by a person previously convicted of a violent offense. The charge was based on defendant's membership in a class of persons who are unable to legally possess firearms, and thus, the subsequent invalidity of the underlying prior conviction did not render his appeal moot.id: 10677
Court committed prejudicial error in instructing that possession of a weapon with defaced serial numbers creates the presumption that the possessor defaced the number.The trial court committed reversible error by instructing the jury that possession of a weapon with obliterated serial numbers creates the presumption that the possessor defaced the numbers. A presumption must not undermine the fact finder's responsibility to find the ultimate facts beyond a reasonable doubt, based on evidence adduced by the state.id: 10644
In a prosecution for possessing an unregistered assault weapon, the prosecution must prove defendant knew or should have known the firearm possessed the characteristics bringing it within the law.Possession of an assault weapon in violation of Penal Code section 12280, subd.(b) is not a strict liability offense. However, actual knowledge of the firearm's prohibited characteristics is not required. Instead, a conviction is obtainable upon proof of negligent failure to know, as well as actual knowledge of the weapon's salient characteristics. The prosecution must prove a defendant charged with possession an unregistered assault weapon knew or reasonably should have known the characteristics of the weapon bringing it within the registration requirements of the provision.id: 15539
Updated 3/6/2024Evidence supported the conviction of carrying a dirk or dagger where defendant possessed a knife that was wrapped in paper.Substantial evidence supported the jury’s finding that defendant’s knife was a dirk or dagger for purposes of Penal Code section 21310, even though it was wrapped in paper to prevent it from cutting someone. The knife was stainless steel with a fixed four inch blade, a sharpened edge, a pointed tip and defendant carried it for protection. Evidence showed it was capable of ready use as stabbing weapon.id: 26533
Updated 3/6/2024Possession of dirk statute was not unconstitutionally vague. Defendant was convicted of possessing a concealed dirk under Penal Code section 16470. The statute is not unconstitutionally vague. The term “may” in the statute (“may inflict great bodily injury”) is definite enough to put defendant on notice of the prohibited conduct. The knowledge element is also sufficiently definite to provide a standard for prosecution of the offense.id: 26658
Updated 3/6/2024A gang expert’s testimony about the gang’s predicate offenses does not violate Sanchez.A gang expert’s testimony about gang enhancement predicate offenses does not violate People v. Sanchez (2016) 63 Cal.4th 665, so long as the predicate offenses do not involve the defendant or people involved in the defendant’s case. Such predicate offenses are chapters in a gang’s biography and constitute historical background information, not case-specific information.id: 26659
Updated 3/4/2024Minor found to have committed felony sexual battery was properly subject to the prohibition on possessing firearms.The minor was found to have committed felony sexual battery. He argued the ban on possessing firearms did not apply to him because Penal Code section 29805 applies only to adults with misdemeanor convictions and section 29805 permits a firearm restriction for juveniles only when the court declares a violation of section 243.4 to be a misdemeanor. However, the minor was subject to the statutory firearms prohibition even though his offense was a felony.id: 27564
Updated 3/4/2024California’s gun licensing law was not unconstitutional under Bruen as any potentially offending provisions were severable.Defendant argued California’s handgun licensing scheme was unconstitutional under New York State Rifle & Pistol Assn. v. Bruen (2022) 142 S.Ct.2111. Assuming there were problems with the “good cause” for issuing a license clause, and the “good moral character” clause, those portions were severable from the remainder of the licensing statute and the law was unconstitutional.id: 28137
Updated 2/26/2024Evidence supported weapon possession based on defendant’s constructive possession of the backpack found in his car.Substantial evidence supported the defendant’s convictions for possession of the pistol and ammunition because the jury could reasonably infer defendant had constructive possession of the backpack found near the center console in the car he was driving.id: 26412
Updated 2/26/2024Statute proscribing possession of a concealed dirk was not unconstitutionally vague.The statute defining a “dirk,” Penal Code section 16470, is not unconstitutionally vague as the phrase “may inflict great bodily injury” is definite enough to put defendant on notice of the type of instrument that is prohibited. The knowledge element, defendant’s conduct must demonstrate probable cause to show he knew the instrument could be used to stab, was also sufficiently definite to provide a standard for police enforcement.id: 26415
Updated 2/23/2024Possession of a machine gun is a strict liability offense.Defendant argued the evidence was insufficient to support his conviction for possession of a machine gun in violation of Penal Code section 32625(a) because there was no evidence showing that he knew it was illegal to possess the weapon. However, possession of a machine gun is a strict liability offense.id: 26779
Updated 2/23/2024Defendant was improperly convicted of three counts of possessing a concealed firearm in a vehicle.Defendant was convicted of three counts of violating Penal Code section 25400, for carrying a concealed firearm on his person after a felony conviction (section 25400 (a)(2)), carrying a concealed and stolen firearm in a vehicle (section 25400 (a)(1)), and carrying a concealed and loaded firearm in a vehicle by someone other than the registered owner (section 2544 (a)(1)(C)(6). However, the counts describe alternate ways of committing the same offense - possessing a concealed firearm in a vehicle. Only one conviction was proper and the court struck the other two.id: 26908
Updated 2/7/2024Evidence supported defendant’s conviction for possessing a gun while on probation even though the courts don’t set the probation conditions in Pennsylvania.Defendant was convicted of possessing a firearm in violation of an express condition of probation under Penal Code section 29815. He argued the evidence was insufficient to support his conviction because there had been no court order preventing him from possessing a firearm since, in Pennsylvania, the probation department rather than the court sets the probation conditions. However, section 29815 does not require a court order and the evidence supported the conviction.id: 27232
Updated 2/7/2024A nonfolding box cutter qualified as a dirk or dagger under section 21310.Evidence that defendant was carrying a closed, nonfolding box cutter without an exposed blade was sufficient to support his conviction for carrying a concealed dirk or dagger under Penal Code section 21310.id: 27134
Updated 2/4/2024Bruen did not render California’s gun carrying licensing statutes violative of the Second Amendment.Defendant argued that New York Rifle and Pistol Assn., v. Bruen (2022) 142 S.Ct. 2111, rendered California’s general gun carrying licensing statutes (Penal Code sections 26150, 26155) unconstitutional. Bruen only struck down the provision mandating proof of need beyond self-defense, and this would not invalidate the entire statutory scheme. In any event, defendant lacked standing to raise the challenges as the record did not show he applied for, and was denied, a license to possess the gun in question.id: 27643
Updated 2/4/2024Evidence was insufficient to support the conviction for possessing drugs while armed where the rifle was found inside of a bag in the bed of a truck and not available for immediate use.Police stopped defendant while he was driving a pickup truck, and found a rifle inside of a bag in the open bed of the truck. Evidence was insufficient to support his conviction for possessing methamphetamine while armed with a loaded firearm because the firearm was not available for his immediate use.id: 27372
Updated 2/3/2024Defendant was properly convicted of both possession and manufacturing of assault weapons. Possession of assault weapons is not a lesser included offense of unlawfully manufacturing an assault weapon under Penal Code section 30600. Convictions for both offenses were proper. id: 27515
Updated 2/3/2024Possession of an assault weapon provision does not violate the Second Amendment following Bruen.Defendant was convicted of several offenses including possession of an assault weapon under Penal Code section 30605. Contrary to defendant’s argument, that provision does not violate the Second Amendment following New York State Rifle and Pistol Association, Inc. v. Bruen (2022) 213 L. Ed. 2d 387.id: 27862
Updated 2/2/2024Law prohibiting the possession by a felon does not violate the Second Amendment after Bruen.California’s law prohibiting the possession of firearms and ammunition by a felon (Penal Code sections 29800(a)(1) and 30305(a)(1)) are not facially invalid under the Second Amendment following New York State Rifle and Pistol Association, inc. v. Bruen (2022) 142 S.Ct. 2111.id: 27868
Updated 2/2/2024Felon in possession of a firearm law is not unconstitutional following Bruen.Penal Code section 29800(a)(1), which makes it illegal for a felon to possess a firearm does not violate the Second Amendment following New York State Rifle and Pistol Association Inc. v. Bruen (2022) 142 S.Ct 2111.id: 27884
Updated 2/1/2024Provision prohibiting the possession of a controlled substance while armed does not violate the Second Amendment.Defendant was convicted of possession of a controlled substance while armed under Health and Safety Code section 11370.1. Contrary to defendant’s claim, that provision does not violate the Second Amendment by restricting a nonviolent offender’s right to possess firearms.id: 27933
Updated 1/31/2024Section 25400 is not unconstitutional after Bruen.Defendant was charged with illegally carrying a concealed firearm in her vehicle in violation of Penal Code section 25400. Contrary to her claim and the trial court’s finding, that provision is not unconstitutional under New York State Rifle and Pistol Assn. v. Bruen (2022) 142 S. at. 2111.id: 28062
Evidence supported the court’s order prohibiting firearms for defendant following a suicide attempt and section 5150 treatment.After defendant was taken into custody for a psychiatric evaluation and treated for 72 hours pursuant to Welfare and Institutions Code section 5150, she was banned from possessing or purchasing firearms for five years pursuant to section 8103, subd. (f). She petitioned to lift the prohibition but the trial court found by a preponderance of the evidence that she would not be able to use guns safely. The trial court’s denial of her request was an appealable order and the preponderance standard was constitutional. The court’s order was supported by evidence of a mental health disorder that led to an attempted suicide.id: 24959
The trial court did not err by instructing the prosecution was not required to prove defendant intended to use the billy club as a weapon. Defendant was convicted of possessing a billy club in violation of Penal Code section 22210. The trial court did not err by instructing the jury that the charge did not require the prosecution to prove defendant intended to use the club as a weapon.id: 25515
Defendant’s possession of a mini sledgehammer supported the conviction for possessing a “billy” and the gang enhancement was supported by the expert’s opinion that defendant possessed the hammer to benefit a street gang.Defendant’s possession of a mini sledgehammer supported his conviction for possession of a “billy” under Penal Code section 22210. The evidence also supported the jury’s finding that the hammer was possessed as a weapon rather than a lawful purpose where it was readily accessible under the car seat and defendant had recently admitted to using another ordinary harmless object, a crowbar, to retaliate against someone. The evidence also supported the gang enhancement as to that possession charge where the expert concluded defendant possessed the sledgehammer to benefit the gang. id: 25496
Carrying a concealed firearm provision was not preempted by statute prohibiting a minor from possessing a firearm capable of being concealed on his person.The minor argued reversal was required for the finding that he carried a concealed firearm in violation of Penal Code section 25400 because the statute was preempted by a more specific statute that targets minors, section 29610, which the court found he also violated. However, the statutes prohibit different conduct and the court properly found the minor violated both.id: 25337
A person wearing a backpack that contains a loaded revolver is carrying a loaded firearm “on the person.”Penal Code section 25850, subd.(a) prohibits a person from carrying a loaded firearm on his person. A person wearing a backpack that contains a loaded revolver is carrying a loaded firearm on the person for purposes of section 25850.id: 24686
Section 12025, subd.(b)(3) was properly alleged as a strike prior even though the state didn’t prove the gang participation involved was a felony.The complaint alleged that defendant had a prior felony conviction under Penal Code section 12025, subd.(b)(3) which involves carrying a concealed firearm by a person who was an active participant in a gang under section 186.22, subd.(a). The latter offense is a wobbler and defendant argued that because it had not been proven to be a felony, the offense did not constitute a strike prior. However, active gang participation is a felony unless charged as, or later reduced to a felony, which did not happen here. Section 12025 subd.(b)(3) was adequately alleged to be a felony violation. id: 23817
For purposes of unlicensed gun sale statute, the prosecution was not required to prove defendant knew the person he bought the gun from was unlicensed.Defendant was convicted of unlawfully transferring a firearm in violation of former Penal Code section 12072, subd.(d). The provision applied to the sale of a weapon between two parties, neither of whom was a licensed gun dealer. Contrary to the defendant’s claim, the prosecution was not required to prove defendant knew or should have known the other party to the transaction was unlicensed.id: 23828
A person carries a loaded firearm “on his person” where the gun is carried in his backpack.A person wearing a backpack containing a loaded firearm “carries a loaded firearm on the person” for purposes of Penal Code section 25850, subd.(a).id: 24005
California’s ban on short barreled shotguns does not violate the Second Amendment. Defendant was convicted of possession of a short barreled shotgun under former Penal Code section 12020. Contrary to his claim, California’s ban on shotguns with an overall length of less than 26 inches does not violate the Second Amendment or equal protection.id: 23631
The juvenile court erred by finding the minor’s gun possession to be a felony absent proof that he was not the owner or had permission to use it. The juvenile court erred by finding the minor’s offense of carrying a concealed firearm was a felony absent evidence that he was not the lawful owner, did not have the owner’s possession, or did not have lawful authority to possess the weapon.id: 23722
Statute prohibiting possession of body armor by a felon was not vague as applied to defendant who possessed a bullet proof vest.Defendant was convicted of possession of body armor by a convicted felony in violation of former Penal Code section 12370, subd. (a). Contrary to defendant’s claim, the statute was not unconstitutionally vague as applied to him because it was reasonable to infer that defendant knew his possession of a bullet proof vest was a crime.id: 23399
A person convicted of misdemeanor battery against his wife may be prohibited from buying a firearm.Title 18 U.S.C. 922(g)(9) prohibits the possession of firearms by those convicted of a misdemeanor crime of domestic violence. Battery under Penal Code section 942 has, as an element, the use of physical force, and therefore falls within the restrictions of section 922(g)(9). id: 23343
The ban on specified semi-automatic assault weapons does not violate the Second Amendment.Penal Code section 12280's ban on the possession of an AK series semi-automatic rifle by a private citizen in his home did not violate the Second Amendment under District of Columbia v. Heller.id: 23368
Terms “nonlocking folding knife” and “locked into position” for concealed dirk or dagger statute were not unconstitutionally vague. Defendant was convicted of carrying a concealed dirk or dagger in violation of Penal Code section 21310. Contrary to his claim, the provision defining dirk or dagger is not unconstitutionally vague for failing to define “nonlocking folding knife” or “locked into position.” The terms were sufficiently definite to put defendant on notice of the violation. Moreover, the terms “locked into position” and “nonlocking knife” were not inherently contradictory.id: 23557
Evidence didn’t support the conviction for carrying a concealed dirk or dagger since the open blade of a Swiss Army knife can’t be “locked into position.”The evidence was insufficient to support defendant’s conviction for carrying a concealed dirk or dagger because the open blade of a Swiss Army knife can’t be “locked into position” for purposes of the statute. id: 23558
Defendant who carried a modified baseball bat for protection was properly convicted of possessing a “billy.”Defendant was convicted of possessing a dangerous weapon, specifically a “billy” in violation of former Penal Code section 12020, subd.(a). He argued the modified baseball bat he possessed did not constitute a “billy” which has been defined as a “short stick with one end loaded.” However, it was a weapon and defendant admitted that he carried it for protection. Two officers testified the bat was a billy. And the trial court did not err by failing to instruct that a billy was a short object. Finally, defendant had no Second Amendment right under Heller to possess the weapon since he carried it in his car rather than having it at home.id: 23133
The trial court did not err in failing to instruct on the specific intent needed to conceal a dirk or dagger.Defendant was convicted of carrying a dirk or dagger in violation of former Penal Code section 12020, subd.(a)(4). He argued the trial court erred by failing to instruct sua sponte that intent to conceal is an element of the offense. However, the offense is established if the prosecution proves the defendant intentionally and knowingly committed the proscribed act of carrying a concealed dirk or dagger, and no further proof concerning intent is required. id: 22876
Statute prohibiting the carrying of a concealed dirk or dagger did not violate the Second Amendment under Heller. Defendant was convicted of carrying a concealed dirk or dagger under former Penal Code section 12020, subd.(a)(4). He argued the statute was unconstitutional facially and as applied following District of Columbia v. Heller (2008) 554 U.S. 570. However, the ban serves an important governmental interest allowing people to protect themselves from exposure to surprise attacks from strangers. And even though he might not have posed an immediate threat, the statute still serves an important interest.id: 22875
Defendant was properly convicted of attempted assault weapon activity and possession where he was caught assembling an AK-47 from a kit he purchased off the Internet.Defendant was caught making an AK-47 semiautomatic assault weapon from a kit. He was convicted of attempted unlawful assault weapon activity and attempted possession of an assault weapon (Penal Code sections 664 and former section 12280(a)(1)(b).) He argued that he could not convicted until the AK-47 was fully assembled and operable but failed to distinguish between a violation of the two provisions and the attempted violation of the statutes.id: 23042
Weapon possession could be used to establish a violation of the gang participation if it was independently punishable under another provision.When possession of a firearm is independently punishable as a felony under some other statutory provision, such as convicted felon in possession of a firearm here, that possession may be used as the felonious criminal conduct necessary to establish a violation of Penal Code section 186.22, subd.(a) for active participation in a gang. Having established probable cause to believe defendant violated that provision, the otherwise misdemeanor offenses of carrying a concealed firearm in public (section 12025, subd.(a)) and possessing a loaded firearm in public (section 12031, subd.(a)) could also be charged as felonies.id: 22914
There was no equal protection violation in punishing false bomb possession as a felony and false WMD possession as a misdemeanor. Defendant was convicted of the felony of maliciously placing a false bomb with the intent to cause fear under Penal Code section 148.1, subd.(d). His sentence also included a three strikes life term. He argued the felony provision denied him equal protection when compared to a different statute, section 11418.1 which makes it a misdemeanor to place a false weapon of mass destruction with the intent to cause fear in others. However, the Legislature could have determined under the rational basis test that a legitimate distinction existed where the public is likely aware of objects that look like bombs and are almost certain to cause disorder unlike WMD’s which include a vast array of chemicals and biological substances as well as radioactive and mechanical devices. id: 22827
Provision prohibiting weapon possession by a person convicted of certain misdemeanors does not violate the Second Amendment or equal protection principles.Defendant was convicted of the unlawful possession of firearms by a person convicted of specified misdemeanors pursuant to Penal Code section 12021, subd.(c)(1). That provision does not violate the Second Amendment under District of Columbia v. Heller (2008) 554 U.S. 570, even though Heller provided the government could prohibit felons from possessing firearms. Moreover, the provision did not violate equal protection principles even though other states may not have similar laws. id: 22097
Defendant’s conviction for carrying a concealed weapon in a vehicle did not violate his Second Amendment rights.Defendant’s conviction for unlawfully carrying a concealed firearm in a vehicle (Penal Code section 12025, subd.(a)(11)) did not violate his Second Amendment right to bear arms under Heller. That he was required to obtain a permit did not mean that he was deprived of an alternate means of exercising his right to bear arms. id: 22259
The trial court did not err in finding a prior conviction of brandishing a hammer, with a hate crime enhancement, qualified as a serious felony for strikes purposes.The trial court did not err in finding a prior conviction of brandishing a hammer, with a hate crime enhancement, qualified as a serious felony as defined by Penal Code section 1192.7, subd,(c)((23) because the conduct that made the prior conviction a felony (interfering with the victim’s civil rights) differed from the conduct that made the prior conviction a serious felony (personally using a deadly or dangerous weapon).id: 22134
The bicycle footrest found in the minor’s pocket did not fall within the definition of “metal knuckles” under Penal Code section 12020, subd.(c)(7).A cylindrical object like the bicycle footrest in this case was not a device”worn... in or on the hand” under the definition of “metal knuckles” provided in section 12020, subd.(c)(7). id: 21399
A defendant may be punished for possessing both a firearm and ammunition where the ammunition is not in the firearm.Defendant argued he could not be punished for both possessing a firearm and possessing ammunition. However, where the ammunition is not in the firearm, separate punishments may be imposed. id: 21681
Felon possessing a weapon was separate from possessing methamphetamine while armed for section 654 purposes.Defendant was convicted of being a felon in possession of methamphetamine while armed with a loaded operable firearm. He argued the sentence for the first offense should have been stayed under Penal Code section 654. However, because the offenses involved distinct dangers, separate acts and separate intents, the felon in possession of a firearm offense was separate from possession of methamphetamine while armed.id: 21564
Defendant was not entitled to have the jury instructed on the “place of residence” defense to gun possession charges where he was using his trailer as a vehicle rather than a residence.Defendant was convicted of carrying a concealed firearm in a vehicle and carrying a loaded firearm in a public place in violation of Penal Code sections 12025 and 12031. He argued the trial court erred by not instructing the jury on the “place of residence” exemptions to those provisions because he lived in his trailer. However, at the time of the offenses, he was using the trailer as a vehicle in a public place and was not using it for residential purposes.id: 21567
Carrying a loaded firearm in public is not necessarily included in the offense of carrying a concealed firearm. Defendant was convicted of carrying a concealed firearm in violation of Penal Code section 12025, subd.(b)(6) and carrying a loaded firearm in a public place pursuant to section 12031, subd.(a)(2)(F). His convictions for both offenses were proper where the latter was not necessarily included in the former because the public place requirement does not apply to the former.id: 21493
The trial court erred by imposing sentences for both firearm and ammunition possession.Defendant was convicted of unlawful firearm possession as well as possession of ammunition. The trial court erred in failing to stay imposition of the ammunition count under Penal Code section 654 because it was either loaded into or fired from the gun, and there was no evidence of a multiple objective.id: 21361
The minor violated the possession of a switchblade statute where he possessed the knife in a private residence.Police discovered a switchblade in the minor’s pocket during a search conducted at a private residence. He argues that he did not violate Penal Code section 653k because he was not in a public place at the time the knife was found. However, the statute is violated any time a person carries a switchblade knife on his or her person, regardless of where the possession occurs. id: 21287
16 year-old defendant’s firearm possession convictions did not violate the Second Amendment under Heller.Defendant’s conviction of possession of a firearm by a minor with a record in violation of Penal Code section 12021, subd.(e) does not violate his Second Amendment rights as described in District of Columbia v. Heller (2008) 554 U.S. ___, because the state has the right to regulate the possession of firearms for juveniles. Likewise, his conviction of possession of a loaded firearm under section 12031, subd.(a) is also constitutional under Heller.id: 21118
Possession of an assault weapon in California remains unlawful and is not protected by the Second Amendment following Heller. Possession of an assault weapon in California remains unlawful and is not protected by the Second Amendment following Heller. id: 21000
A sidewalk on an easement granted to a public entity is not private property for purposes of possession of a firearm in a school zone.Defendant was convicted of possession of a firearm in a school zone under Penal Code section 626.9. Subdivision (c)(1) of the provision provides an exception where the gun possession occurs on private property that is not part of the school grounds. Contrary to defendant's argument at trial, a sidewalk on an easement of way granted to a public entity did not qualify as private property within the meaning of section 626.9, subd. (c)(1). Moreover, the provision was not unconstitutionally vague as any property interest owned by the defendant was not the type a reasonable citizen would understand to be private.id: 18578
A “multi-tool” with a one inch blade that locked into place was a prohibited weapon under section 626.10, subd.(a). The minor was found to have possessed a weapon on school grounds. He argued the “multi-tool” he possessed was not a weapon prohibited by Penal Code section 626.10, subd.(a). However, even though the blade was only an inch long, it locked into place and therefore could be used as a knife. Moreover, that the tool had other legitimate functions did not exclude it as a weapon for the present purpose.id: 20840
The styrofoam cup with flammable liquid and a wick qualified as a destructive device for purposes of section 1203.2. Defendant argued the evidence was insufficient to support the conviction of possession of a destructive device because the styrofoam devices were not destructive devices within the meaning of Penal Code section 1203.02. However, even though the devices he constructed were not designed to be thrown or explode, they qualified as destructive devices containing a flammable liquid with a wick capable of being ignited. Contrary to defendant’s claim, the cups did not have to be breakable containers to qualify under section 1203.2, and the trial court was not required to define “breakable” for the jury. id: 20782
The minor’s possession of a box cutter on school grounds violated Penal Code section 626.10, subd.(a).The evidence supported the finding that the minor possessed a weapon on school grounds in violation of Penal Code section 626.10, subd.(a). Contrary to the minor’s claim, a box cutter falls within the purview of the provision as “a razor with an unguarded blade.”id: 20721
The trial court did not direct a verdict by instructing that for purposes of section 12031, a driveway may be a public place when it is accessible to the public, and the instruction did not violate the Second Amendment under Heller.Defendant was convicted of carrying a loaded firearm in a public place in violation of Penal Code section 12031, subd.(a)(1). He argued the trial court erred in responding to a jury inquiry during deliberations by suggesting that a private driveway may be a public place for purposes of section 12021 if it was accessible to the public. However, the court’s response did not constitute a directed verdict on the public place element because the instruction left the jury with the task of deciding whether defendant was on the driveway and whether the driveway was reasonably accessible to the public. Moreover, the court’s definition of “public place” did not violate the Second Amendment as defined in District of Columbia v. Heller (2008) 128 S.Ct. 2783. id: 20709
Statutes prohibiting the carrying of a concealed weapon and carrying a loaded firearm in public do not violate the Second Amendment as described in Heller.Defendant was convicted of three firearm-related offenses, including possession of a firearm by a person prohibited from possessing a gun.(Penal Code section 122021, subd.(c)(1)), carrying a concealed firearm (section 12025, subd.(a)(2)), and carrying a loaded firearm in a public place (section 1203). Contrary to defendant’s claims, offenses do not fall within the protection of the Second Amendment as recently described in District of Columbia v. Heller (2008) 128 S.Ct. 2783.id: 20708
Carrying a concealed firearm provision does not violate the Second Amendment under Heller where the offense took place on residential “private” property.Defendant was convicted of carrying a concealed firearm in violation of Penal Code section 12025, subd.(a)(2). He argued that provision violates the Second Amendment principles articulated in District of Columbia v. Heller (2008) 128 S.Ct. 2783, where it is enforced against a defendant who carried a concealed weapon on residential property that was fully accessible to the public. However, section 12025 did not violate the Second Amendment as defined in Heller on its face or as applied to defendant’s circumstances. id: 20707
Defendant who, after being arrested, lied to the booking officer about having a weapon, “voluntarily” entered the jail with a weapon in violation of section 4574.Defendant was arrested and lied to the booking officer by denying that she had a weapon. She violated Penal Code section 4574 by entering the jail with a weapon. She argued that she did not “voluntarily” enter the jail as required by the statute because she was arrested and therefore entered “involuntarily.” However, in this situation, she voluntarily entered the jail with a weapon. id: 20289
Folding knife that opened with a flick of the wrist qualified as a switchblade under section 653k.The minor argued that evidence was insufficient to support possession of a switchblade under Penal Code section 653k because the resistance device referenced in the statute had worn away and no longer worked. However, the folding knife that opened with a flick of the wrist qualified as a switchblade.id: 20369
Evidence supported the juvenile court’s finding that the bicycle footrest found in the minor’s back pocket qualified as “metal knuckles” under section 12020, subd.(a). The minor argued there was insufficient evidence to support the juvenile court’s finding that the bicycle footrest found in his possession fit within the statutory definition of “metal knuckles” within the meaning or Penal Code section 12020, subd.(a). However, even though the object may not be “worn” on the hand, it fits the statutory definition because when held in the had it increases the force of a punch. Moreover, the juvenile court could reasonably have concluded the minor intended it as a weapon where he carried it in his back pocket, and there was not another footrest attached to the opposite side of his bicycle.id: 20567
A switchblade in the closed position can be a dirk or dagger concealed on the person under section 12020.A switchblade knife as defined in Penal Code section 653k can also be a dirk or dagger concealed on the person as defined in section 12020, even if it is concealed in the closed position.id: 20566
The trial court did not err in ordering the confiscation of firearms of a defendant being detained for mental health treatment who had threatened to kill himself. Defendant's firearm collection was confiscated when he was detained for mental health treatment under Welfare and Institutions Code section 5150. Substantial evidence supported the trial court's findings that defendant would not be likely to use the guns in a sage and lawful manner (section 8103) and that return of the guns would result in a danger to defendant or others, where he had recently threatened to kill himself.id: 20235
Officer's testimony sufficed to prove the shotgun shell was live ammunition under section 12101, subd.(b)(1).The minor was found to have possessed a concealable firearm within the meaning of Penal Code section 12101, subd.(a)(1) and live ammunition in violation of section 12101, subd.(b)(1). He argued the evidence did not support the allegation that the shotgun shell taken from the gun was "live." However, the police officer's testimony was direct evidence that the round was live and supported the conviction.id: 20202
The trial court did not err in failing to instruct on section 246.3 as a lesser included offense of section 246 where the evidence showed defendant committed both offenses or neither. Grossly negligent discharge of a gun under Penal Code section 246.3 is a lesser included offense of firing a gun at an inhabited dwelling under section 246, but the failure to instruct on the former was not error where the evidence showed he was guilty of both crimes or neither.id: 19882
Carrying a loaded gun in public becomes a felony under section 12031(a)(2)(c) when a defendant commits the gang offense described in section 186.22(a).Penal Code section 12031, subd. (a)(2)(c), elevates to a felony the offense of carrying a loaded firearm in public when committed by an active participant in a criminal street gang as defined in section 186.22, subd.(a). However, section 186.22, subd.(a) does not define the phrase "active participant in a street gang." Instead, that provision defines a substantive gang offense. Thus carrying a loaded firearm in public becomes a felony under section 12031, subd.(a)(2)(c) when a defendant satisfies the elements of the offense described in section 186.22, subd.(a).id: 15529
"Maliciously" for purposes of provision dealing with exploding a destructive device does not mean "with the intent to kill".Defendant was convicted of explosion of a destructive device causing bodily injury (Penal Code section 12309) and explosion of a destructive device causing death (section 12310). He argued that in defining maliciously (every person who willfully and maliciously explodes any destructive device . . .) the court instructed: the words 'malice' and 'maliciously' mean a wish to vex, annoy or injure another person, or an intent to do a wrongful act. Defendant argued the instruction was erroneous because in context maliciously means with intent to kill. However, the instruction given was proper.id: 10678
Negligent discharge of a firearm is not necessarily included in firing at an inhabited dwelling.It is possible to shoot at an inhabited dwelling within the
meaning of Penal Code section 246 without negligently discharging a firearm within the meaning of section 246.3. Therefore, the latter is not a lesser included offense of the former.id: 19838
Possession of "keepsake" bullets that may not have been live ammunition supported defendant's conviction of possession of ammunition. No weapons were found in defendant's house but the officer who searched the house found bullets he said looked like "keepsakes." Whether they were live ammunition or not, the items were bullets or cartridges within the meaning of Penal code section 12316, subd.(b)(1).id: 19506
Trial court erred by "merging" 10 counts of possessing large capacity weapon magazines into one count where the evidence supported multiple counts. Defendant was charged with 10 counts of possessing large capacity magazines in violation of Penal Code section 12020, subd.(a)(2). The trial court erred by dismissing nine counts, after merging all ten counts into one. Because the multiple counts were specifically authorized by statute, the court's
ruling was erroneous.id: 19485
A wallet with metal spikes qualified as metal knuckles for purposes of section 12020.Evidence supported the finding that the minor possessed metal knuckles in violation of Penal Code section 12020, subds. (a)(1) and (c)(7). The minor argued the object in question was a wallet with "decorative" metal spikes, and there was no evidence he knew it could be used as a weapon. However, the wallet contained no money, cards or photographs. The minor knew he possessed it and knew of the spikes which were positioned to protrude between the fingers if the wallet was held in a clinched fist. A reasonable trier of fact could find he knew
the object could be used as a weapon.id: 19206
The street gang firearm statutes do not require proof that the firearm possession occurred in connection with defendant's gang participation. Defendant argued the statutes defining the street gang firearm offenses (Penal Code section 12025(b)(3) - concealed firearm, and section 12031(a)(2)(C) - loaded firearm) require proof that his possession of the firearm occurred in connection with his active gang participation. However, the statutes do not
require a showing that the firearm possession was connected to the underlying gang participation. id: 19131
Former CALJIC No. 12.52 adequately conveyed that to be armed with a firearm under Health and Safety Code section 11370.1 one must have knowledge that the gun is available for use.Defendant was charged with possession of methamphetamine while armed with a firearm in violation of Health and Safety Code section 11370.1. The instruction that to be guilty, defendant must "knowingly" have a firearm available for immediate offensive or defensive use. However, the instructional language implicitly included the element of knowledge, and there was no reasonable likelihood the jurors could have misunderstood.
id: 18803
Evidence supported the finding that the minor possessed an assault rifle where he passed the gun back and forth to his friends and the gun was easily identifiable as an assault rifle.A minor was found to have possessed an assault weapon within the meaning of Penal Code section 12280, subd.(b). His control and actual possession of the weapon was established by testimony that he passed the weapon around to other minors who then passed it back to him. Moreover, the weapon was readily identifiable as an assault rifle and the fact that he possessed and pointed it supported the finding that he knew or should have known it was a prohibited assault rifle.id: 17985
The trial court did not prejudicially err in failing to give a knowledge instruction regarding a count of possession of a short-barreled shotgun.Defendant was convicted of possession of a short-barreled shotgun under Penal Code section 12020, subd.(a). He argued the court should have given a knowledge instruction on that charge. While the law is unsettled over whether a knowledge requirement should be read into section 12020, subd.(a), any error in failing to instruct on the issue was harmless where there was no doubt defendant knew he possessed a short barreled shotgun.
id: 17885
Trial court erred in finding a peace officer convicted of simple battery was eligible for relief from the 10 year firearm prohibition.Defendant, a San Bernardino County deputy sheriff, was convicted of misdemeanor battery under Penal Code section 242, in an off-duty incident. At sentencing, he sought relief from the 10 year firearm prohibition described in Penal Code section 12021, subd.(c)(1). The prosecution appealed the court's ruling that defendant was eligible for relief. Section 12021(c)(2) allows relief from the prohibition for defendants convicted of domestic violence under sections 273.5 and 273.6, and stalking under section 646.9. Defendant argued relief should be available since section 242 is a lesser included offense of section 273. However, the Legislature declined to add that provision to the list of exceptions. Moreover, allowing relief to the three enumerated offenses is not an arbitrary classification in violation of equal protection principles since the Legislature could conclude peace officers who engage in criminal behavior toward strangers may be more culpable than officers who commit crimes in a dysfunctional domestic relationship. Finally, defendant could not challenge the fact that the same conduct can lead to charges under section 273.5 or section 242, because in defendant's case the conviction did not arise from a battery on a domestic partner.id: 17764
Defendant was properly convicted of possessing an incendiary device with an intent to torch his own property.Defendant was convicted of possessing an incendiary device in violation of Penal Code section 453, subd.(a). He argued that one cannot be convicted under that provision for having an incendiary device with an intent to torch one's own property. However, section 453 does not require an intent to affect the property of another.id: 17778
Defendant was subject to multiple convictions for his possession of many explosive devices at the same time and place. Defendant was convicted of 54 counts of possessing "any explosive" in a public location under Penal Code 12 3.2 and 54 counts of possessing "any explosive" with the intent to injure under section 1203.3. The sentencing judge dismissed all but one conviction for each offense relying on a case suggesting the term "any" was ambiguous and the ambiguity should be resolved in defendant's favor. However, the court found the word "any" as used in section 1203.2 and 12303.3 defines the unit of possession in singular terms. A person is therefore subject to multiple convictions under each statute when he or she possesses more than one unlawful item of the same kind at the same time and place.id: 17631
Minor violated section prohibiting exhibition of an imitation firearm even where it was a bystander who experienced the apprehension or fear.Penal Code section 417.4 prohibits exhibiting an imitation firearm against another in such a way as to cause a reasonable person apprehension or fear of bodily harm. Contrary to the minor's claim, the statute applies even where the apprehension or fear is experienced by a bystander.id: 16888
Carrying a concealed firearm in a vehicle under section 12025, subd.(a)(3) does not require proof that defendant brought the gun into the car.Defendant was convicted of carrying a concealed firearm in a vehicle while an occupant of the vehicle pursuant to Penal Code section 12025, subd. (a)(3). He violated the statute by concealing the gun between the seats. Contrary to defendant's claim, the prosecution was not required to prove that he initially brought the gun into the car.id: 16779
Bicycle chain with a lock may constitute a "slungshot" under section 12020, subd.(a) if defendant carried it as a weapon.A bicycle lock on a chain may be a "slungshot" within the meaning of Penal Code section 12020, subd.(a), if the evidence proves the defendant carried it as a weapon.id: 16465
Possession of metal knuckles is a general intent offense.Defendant was convicted of possession of metal knuckles in violation of Penal Code section 12020, subd.(a)(1). He argued the trial court improperly applied a general intent standard in finding him guilty and that the prosecution should have been forced to prove he specifically intended to use the metal knuckles for an improper purpose. However, the trial court properly applied the general intent standard, and defendant's intended use of the instrument was neither an element of the offense nor a defense.id: 16474
Evidence supports possession of a firearm within a school zone if a portion of the car is within 1000 feet of a school.Defendant was convicted of possession of a firearm within a school zone. (Penal Code section 626.9.) He argued the court misinstructed the jury on what constitutes possession within a school zone. However, the trial court correctly told the jury to determine if the evidence supported a finding that a portion of the defendant's car was within 1,000 feet of the school and he possessed a gun.id: 15536
In a case of weapon possession in jail the court properly instructed that a deadly weapon has a "reasonable potential" rather than a "reasonable likelihood" of causing harm.Defendant was convicted of possession of a deadly weapon in county jail. The court did not err in defining a "deadly weapon" as an item that has a "reasonable potential" of being used in a manner that would cause death or great bodily injury.id: 15538
Pit bulls were deadly weapons for purposes of resisting arrest statute.Defendant was convicted of exhibiting a deadly weapon in order to prevent arrest in violation of Penal Code section 417.8. The deadly weapons were pit bulls. Contrary to the defendant's claim, the pit bulls were properly characterized as deadly weapons where they were in an extremely agitated state (prompted by defendant's actions) and reacted to what they perceived to be intruders on their property who threatened the safety of the owners.id: 15543
Possession of a firearm by a minor is a wobbler.The defense argued that possession by a minor of a firearm under Penal Code section 12101, subdivision (a)(1) is a misdemeanor absent a qualifying prior conviction. However, the offense is a wobbler punishable either as a felony or a misdemeanor.id: 15544
Prison inmate charged with weapon possession was not entitled to an instruction regarding temporary possession for purposes of disposal.Defendant was charged with possession of a weapon in violation of Penal Code section 4502. He argued the trial court erred in refusing his proposed jury instruction regarding temporary possession of a weapon for purposes of disposal. However, the weapon here was a razor blade with an inmate-manufactured holder. The sole purpose of such a weapon is to inflict injury on another. It could not be "innocently possessed" or picked up out of curiosity. The trial court properly rejected the requested instruction.id: 15545
Provision prohibiting certain minors from carrying firearms before they turn 30 does not require an express finding of fitness in the prior offense.Penal Code section 12021, subdivision (e), prohibits the possession of firearms by certain juveniles until they reach the age of 30. One element of the offense is a finding in a prior case that the defendant was a fit and proper subject to be dealt with under juvenile court law. However, the statute does not require an express finding of fitness.id: 15546
Reference in expungement order to concealable firearms did not permit defendant to possess a nonconcealable firearm without violating section 12021.The trial erred in holding that because an express reference to concealable firearms in Penal Code section 1203.4, one who has obtained a dismissal of a prior conviction under that statute may possess nonconcealable firearms without violating Penal Code section 12021.id: 15547
Simultaneous possession of three similar weapons in prison results in a single conviction.Defendant was convicted of three counts of unlawful possession of a weapon while in state prison pursuant to Penal Code section 4502, subdivision (a). However, under that provision, only one conviction was proper where defendant possessed three weapons of the same type at the same time.id: 15549
The intent to use the concealed instrument as a stabbing weapon is not an element of the crime of carrying a concealed dirk or dagger.The unlawful carrying of a concealed dirk or dagger under Penal Code section 12020 is not a specific intent crime that imposes a sua sponte duty to instruct with CALJIC 12.42.id: 15551
To be guilty of the unlawful use of a tear gas weapon, it is unnecessary the weapon be either loaded or operable.Defendant argued the trial court erred when it failed to instruct the jury that to be guilty of the use of a tear gas weapon, it was necessary the weapon contain tear gas and be operable. However, it is not an element of Penal Code section 12403.7, that the tear gas weapon be loaded or operable. This interpretation of the law does not make it unclear or vague.id: 15552
Brandishing a firearm is not a lesser included offense to assault with a firearm.An assault with a firearm may be committed without the defendant brandishing a firearm. Therefore, brandishing is not a lesser included offense of assault with a firearm, and the trial court did not err in failing to so instruct.id: 15528
Counsel's decision to concede the "dirk or dagger" intent issue was reasonable in light of evidence of defendant's prior stabbing incident which could have been introduced by the prosecution.Possession of a dirk or dagger under Penal Code section 12020, subdivision (c)(24), as amended in 1995, must be interpreted to include an element of intent to use the instrument as a weapon. Defense counsel did not render ineffective assistance of counsel by not raising the issue of intent and conceding the knives met the definition of dirk or dagger because counsel was concerned that would allow the prosecution to present devastating evidence of a prior incident in which appellant stabbed someone and was convicted of assault with a deadly weapon. The trial court erred in failing to instruct sua sponte on the necessary intent. However, the error was harmless where there was no possibility the court's failure affected the result.id: 15531
Defendant who secreted ammunition in her person was properly convicted of bringing explosives into the jail.Defendant was convicted of bringing explosives into the jail pursuant to Penal Code section 4574. She argued the evidence did not support the conviction because there was no showing that the ammunition secreted in her vagina was an "explosive" as defined in the relevant provisions. However, the expert testified the ammunition found on defendant consisted of "live rounds" and he had no reason to believe they were not explosive in nature. This was sufficient to support the conviction.id: 15534
The pellet gun was, as a matter of law, a deadly weapon within the meaning of Penal Code section 275.The testimony demonstrated that defendant's pellet gun in normal operating condition would expel pellets at speeds in excess of those required to penetrate a significant distance into muscle tissue or to enter an eyeball, and thus it was easily capable of inflicting significant injury. The pellet gun was, as a matter of law, a deadly weapon within the meaning of Penal Code section 275.id: 15341
Concealed weapon statute was not vague and applied to defendant who had a gun in an unlocked case in his back seat.Penal Code section 12025, subdivision (a) prohibits the carrying of a concealed weapon. Defendant argued the provision is vague because it does not define "concealed." However, if a firearm is transported in a vehicle in such a manner as to be invisible unless its carrying case is opened, it is concealed in the ordinary and usual meaning of the term. Moreover, there was evidence of concealment where the gun could not be seen from outside the car.id: 15263
The term "sharp instrument" in statute prohibiting weapons by prisoners, is not unconstitutionally vague.Penal Code section 4502, subd.(a) prohibits the possession of weapons by inmates. Defendant argued the term "sharp instrument" which was listed with other weapons, violates due process because it is unconstitutionally vague on its face and as applied in his case. However, viewing the statute according to the fair import of its terms and its purpose, a person of ordinary intelligence would know what it does and does not prohibit. Considering the nature of the item found in defendant's cell (including the tapered shape, the length and the firmness of its sharp metal point) and the fact that is not a necessary possession for an inmate, the person would know it falls within the prohibition of section 4502, subd.(a).id: 15272
Modified tire repair instrument was a dirk or dagger where it no longer had any use other than as a stabbing instrument.Defendant argued the instrument he carried was not as a matter of law a dirk or dagger within the meaning of Penal Code section 12020, subdivision (a). The instrument started as a tire repair tool but had been altered to resemble an ice pick. When the instrument was redesigned to have a sharpened point, the trial court was entitled to conclude its primary purpose was to serve as a stabbing instrument. At that point it became a dirk or dagger within the meaning of section 12020, subdivision (a), because it no longer had any use other than as a stabbing instrument.id: 10664
Possession of a destructive device with the intent only to harm oneself is not a violation of section 12303.3.Defendant was convicted of possession of a destructive device with the intent to wrongfully injure or destroy any property under Penal Code section 12303.3. Possession of a destructive device with the intent only to harm oneself or one's own property is not a violation of the provision and the court prejudicially erred in failing to instruct that wrongfully required the intent to injure or destroy the property of another.id: 10665
Possession of a loaded firearm in a public place is not a lesser included offense of bringing or possessing a loaded firearm on school grounds.A minor was found to have carried a loaded firearm to school (Penal Code section 626.9, subdivision (a) and carried a loaded firearm in a public place (section 12031, subdivision (a)(1)). He argued he could not be convicted of possession of a loaded firearm in a public place because it is a lesser included offense of bringing or possessing a loaded firearm on school grounds. However, section 12031, subdivision (a)(1) is not a necessarily included offense of section 626.9 because it contains an additional element not required by section 626.9, i.e., that an individual carry the loaded firearm on his or her person or in a vehicle. The minor was properly convicted of violating both provisions.id: 10666
Prior conviction need not be a felony to support the weapon possession charge.Defendant was charged with possession of a concealable firearm by a person previously convicted of assault with a deadly weapon or force likely to produce great bodily injury, under Penal Code 12021.1, subdivision (b)(24). This provision is not limited to prior felony convictions.id: 10667
Prosecution was not required to prove defendant knew the weapon she possessed was a sawed-off shotgun.Defendant was convicted of possessing a sawed-off shotgun in violation of Penal Code section 12020 subdivision (a). The only mental state the prosecution was required to prove was that defendant knew she had possession of a shotgun<197>not that she knew the shotgun was sawed-off.id: 10668
Provisions authorizing destruction of a weapon used in a crime does not apply to stolen weapons.Penal Code section 1417 authorizes the destruction of any dangerous weapon used by a defendant in the commission of a crime or possessed by a defendant upon arrest. The statute would offend due process if applied to bar a rightful owner from recovering a stolen weapon.id: 10669
Shooting a gun into the air in a commercial area where people are present constitutes gross negligence.Defendant was charged with having willfully and unlawfully discharged a firearm in a grossly negligent manner which could result in injury or death, in violation of Penal Code section 246.3. Defendant shot the gun into the air in a commercial area at 2:00 a.m., on the weekend. The superior court erred in granting the motion to set aside the charge on the ground that the evidence did not show gross negligence or the possibility of death or harm. Defendant's conduct constituted gross negligence. Moreover, the fact that the gun was pointed in the air did not remove the possibility that the bullet could hit someone or that the shot might generate responsive gunfire.id: 10670
The trial court was not required to define deadly weapon as used in section 417.8.Defendant was convicted of exhibiting a deadly weapon with the intent to resist or prevent arrest or detention by a peace officer in violation of Penal Code section 417.8. The trial court was not required to define, sua sponte, the term deadly weapon because it is not a technical term.id: 10674
Trial court did not err in instructing the jury that a pipe bomb fit the definition of destructive device.Defendant was convicted of possession of a destructive device (Penal Code section 12303). Destructive device is not a technical term requiring a special definition. Moreover, by instructing that a pipe bomb fit the definition of destructive device the trial court did not usurp the function of the jury. The court did not instruct the jury that the subject device was a pipe bomb, only that a pipe bomb is a destructive device. The instruction given did not breach the law/fact distinction. Finally, the court was not required to instruct that in order to qualify as a destructive device the device must be capable of causing substantial property damage or injury to human life.id: 10675
Knife with a two and one-quarter inch blade and no handguard was a dirk or dagger under Section 12020, subd (a).A knife with a handle designed to fit in the palm of the hand, with a two and one-fourth inch blade protruding between the middle fingers, is a dirk or dagger within the meaning of Penal Code Section 12020, subdivision (a). That the knife did not have a traditional handguard did not change the conclusion because the knife did have a handle which rests against the palm of the hand, and could not easily slip if the blade met resistance while stabbing.id: 10634
A screwdriver can be a deadly weapon for purposes of section 417.8 - exhibiting a deadly weapon to prevent arrest.Defendant was convicted of exhibiting a deadly weapon to prevent arrest. He argued that a screwdriver is not a deadly weapon for purposes of that statute. However, the exhibition of a screwdriver to a peace officer with the intent to resist or prevent arrest is a violation of Penal Code section 417.8.id: 10636
Any error in failing to instruct that a "pipe bomb" was a destructive device was harmless where the experts and lawyers had already informed the jurors of this point.Defendant was convicted of possessing materials with intent to make a destructive device pursuant to Penal Code section 12312. He argued the court had a sua sponte duty to instruct on the definition of a destructive device. However, the experts and attorneys made clear the destructive device under consideration was a "pipe bomb." The defense was simply that defendant lacked the intent to make a destructive device. Any error in failing to instruct that a "pipe bomb" was a destructive device was harmless where the jury was informed by the testimony and argument that this was the case.id: 10638
Brandishing a weapon under section 417, subdivision (a)(1) is not a lesser included offense of drawing a weapon to prevent arrest.Defendant was convicted of drawing a deadly weapon for the purpose of resisting arrest or detention in violation of Penal Code section 417.8. The trial court was not required to instruct on misdemeanor brandishing as a lesser included offense because the charged offense may be committed without drawing a weapon in a rude, angry, or threatening manner.id: 10641
Carrying a concealed weapon provision does not require the operability of such weapon.Penal Code 12025, subdivision (b), which prohibits the carrying of a concealed weapon, does not require proof of operability of such a weapon.id: 10643
Court did not err in failing to instruct on whether the subject item was a deadly weapon where defendant was charged with possession of a deadly weapon while in jail.Defendant was convicted of possessing a deadly weapon while lawfully confined in a jail (Penal Code section 4574, subd. (a)). He argued the court erred in failing to instruct with CALJIC 12.42 regarding the factors relevant in determining whether the subject item was a deadly weapon. However, of the five factors included in the proposed instruction, four were inapplicable to the instant offense. As to the fifth factor, <i>intended use</i>, the court, in its instruction to the jury, covered the subject.id: 10645
Defendant who admitted exploding a single device killing two people was properly convicted of two counts and consecutive sentences were proper.Defendant argued that his conviction and the imposition of consecutive sentences on two counts of exploding a destructive device with intent to commit murder was erroneous. He claimed that since he exploded a single device, he committed the actus reus of the crime but once, and the fact that he may have intended to murder two victims by exploding the device did not give rise to two violations of Penal Code section 12308. However, the prosecution correctly charged defendant with the commission of a violent act directed against two victims and imposition of the consecutive sentences was proper.id: 10649
Evidence supported the juvenile court's finding the ammunition the minor possessed was live notwithstanding the failure to actually test the ammunition.Juvenile court found the minor unlawfully possessed live ammunition in violation of Penal Code section 12101, subd. (b). He argued the record lacked evidence the ammunition he possessed was live. However, the record established the minor had 13 .38 caliber rounds in his pocket. Under his seat were two guns loaded with .38 caliber rounds. The brand of ammunition found in his jacket was the same as the bullets in the revolver. The court rejected the notion that testing of the ammunition was necessary.id: 10652
For purposes of possession of a deadly weapon while in jail a weapon need only have the potential for use as a deadly weapon.Defendant was charged with possessing a deadly weapon while confined in jail (Penal Code section 4574, subd. (a)). The court instructed the jury that a deadly weapon was any weapon, instrument, or object that is likely to inflict great bodily injury or death. The jury sent the trial court a note asking whether the word likely meant possible or more probable than not? The court answered the word likely in the instruction means: has the potential for use as a deadly weapon. Defendant had urged the court to deliver the more probable than not answer. However, the court's answer was proper. Merely because slashing someone with an instrument might inflict great bodily injury or death only 49 percent of the time does not mean that such item is outside the definition of deadly weapon for purposes of the instant statute.id: 10655
In measuring a rifle for purposes of the short-barreled rifle provision the weapon can be measured with the stock folded rather than extended.Defendant was convicted of possession of a short-barreled rifle pursuant to Penal Code section 12020, subdivision (c)(2)(B). He argued the court used the wrong method to measure the rifle which had a folding stock. He argued the rile should have been measured with the stock extended which then would have exceeded the legal length. However, in determining whether a rifle in question is prohibited by section 12020 the court did not err in using the measurement with the stock folded.id: 10657
Intended use of the knife is irrelevant and should not be considered when deciding whether a given knife qualifies as a dirk or dagger.The trial court did not err in refusing to instruct the jurors that they could consider appellant's intent in possessing the weapon when deciding whether he possessed a dirk or dagger within the meaning of Penal Code section 12020, subdivision (a). Evidence related to the possessor's intended use of the weapon is simply irrelevant and should not be considered by the trier of fact when deciding whether a given knife qualifies as a dirk or dagger.id: 10658
Knowledge that a bullet contained an explosive agent is not an element of the offense of possessing a bullet containing an explosive agent.Defendant's knowledge of the explosive nature of a bullet in his possession is not an element of the offense of possession of a bullet containing or carrying an explosive agent. Therefore, the People are not obligated to prove such knowledge as part of their case in chief. The only mental state the prosecution is required to prove is that defendant knew he had possession of the bullet.id: 10659
Long term possessors of assault weapons must affirmatively prove they fall within the exception of section 12280.Defendant argued that he was improperly convicted of possession of an assault weapon (Penal Code section 12280) because the People failed to prove the newly enacted exception in subdivision (e) did not apply to him. However, the factual exceptions in subdivision (e) constitute affirmative defenses on which a defendant has the burden of proof. As defendant offered no evidence he possessed the Uzi assault weapon before June 1, 1989, and no evidence that it was registered or could have been registered, he was properly convicted of violating section 12280.id: 10661
Minor violated section 12034 by allowing a passenger into his vehicle with a firearm without knowing if it was loaded.Minor was found to have violated Penal Code section 12034, subdivision (a), which makes it a misdemeanor for a driver knowingly to permit any other person to birng a firearm into the vehicle. He argued he would not properly be found to have violated section 12034 without proof that he knew the firearm in question was loaded. However, the only knowledge required was the knowledge that the weapon was present in the vehicle.id: 10662
Minor violated the provision regarding the possession of a pellet gun on school grounds even though the pellet gun was inoperable.The appellant was committed to the California Youth Authority after he was found to have possessed a pellet gun on school grounds in violation of Penal Code section 626.10, subdivision (a). He violated the statute by possessing a pellet gun which was designed to shoot and gave the reasonable appearance of shooting capability, even if it could not have been fired.id: 10663
Reckless or malicious possession of destructive device is an inherently dangerous felony for purposes of the second degree felony-murder rule.The jury found appellant guilty of reckless or malicious possession of a destructive device (Penal Code section 12303.2). Appellant argued this offense does not constitute an inherently dangerous felony for purposes of the second degree felony-murder rule. However, to recklessly or maliciously possess a bomb in a residential area, as appellant did, or in any place close to people, inherently involves a high probability of death.id: 10322
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245