Felon in Possession -12021
Category > Felon in Possession -12021
Evidence did not support multiple convictions for firearm possession based on defendant’s possession of the same gun on different days. Defendant was convicted of four counts of firearm possession by a felon under Penal Code section 12021, subd.(a)(1). Each count specified a date of possession. However, there was no evidence that defendant’s possession of the firearm was anything but continuous over that period of time. The evidence only supported one conviction.id: 23914
Defendant whose prior conviction was reduced and then dismissed could not be convicted of being a felon in possession of a firearm.Defendant’s 1999 criminal threats conviction was later reduced to a
misdemeanor and then dismissed. He could not thereafter be convicted of being a felon in possession of a weapon under former Penal Code section 12021. id: 23271
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
Supreme Court says government may not prove prior felony when defendant offers to stipulate.In U.S. v. Breitkreutz, 8 F.3d 688, 690-92 (9th Cir. 1993) the Ninth Circuit held that the government had the right to refuse an offer to stipulate to the prior conviction in a felon in possession of a firearm case under 18 U.S.C. section 922(g). Relying on that rule, the district court in the present case allowed the government to show the name and nature of the prior felony. The Supreme Court granted certiorari and reversed, in a 5-4 opinion written by Justice Souter. The majority rejected the argument that government was entitled to prove all of the elements of the crime. The majority recognized that a naked proposition in a courtroom may be no match for the robust evidence that would be used to prove it. But the majority nonetheless held that Rule 403, Fed. R. Evid. requires the district court to balance the probative value of this evidence against its prejudicial effect. Because the purpose of the evidence in the present case was solely to prove the element of prior conviction, the district court abused its discretion in rejecting the offer to stipulate. Justice O'Connor, Rehnquist, Scalia and Thomas dissented.id: 10673
Defendant who submitted a false application to a gun dealer could not be charged with attempted possession of a firearm by a felon. Defendant, a felon, submitted a false application to purchase a firearm. The prosecutor argued the crime was attempted possession of a firearm by a felon. However, no such crime exists. Instead, defendant could only be prosecuted under the special statute, Penal Code section 12076 which expressly proscribes such false applications.id: 18220
Defendant whose prior Oregon felonies had been reduced to misdemeanors could not be charged with being a felon in possession of a firearm under section 12021 (a)(1).At the time defendant was charged in this case, his Oregon felonies had been reduced to misdemeanors. Therefore, he had only misdemeanor convictions that could not serve as the bases for a violation of Penal Code section 12021, subd.(a)(1) – felon in possession of a firearm.id: 20522
Defendant's conviction for possession of a firearm by a convicted felon was reversed because his predicate felony conviction had been reduced to a misdemeanor.Defendant was convicted of voluntary manslaughter and possession of a firearm by a convicted felon. Evidence did not support the latter conviction because the prior felony conviction that qualified defendant for that charge was reduced to a misdemeanor upon his successful completion of probation.id: 19903
The instructions failed to inform the jury that although defendant was a convicted felon, he had the right to defend himself, stand his ground and use reasonable force.The trial court erred by instructing the jury with CALJIC 12.50, Use of a Firearm by a Convicted Felon - Self Defense, and further by refusing to instruct with CALJIC 5.50, Self-Defense - Assailed Person Need Not Retreat. CALJIC 12.50 permitted the jury to find that the shooting was unlawful merely because of defendant's status as a felon. The instruction placed an added burden of retreat on defendant thereby depriving him of a meritorious defense. Moreover, by failing to instruct with CALJIC 5.50, the instructions allowed the jurors to conclude defendant had a duty to run when confronted by the others.id: 18583
Trial court erred in rejecting defendant's instruction regarding temporary possession of a firearm by an ex-felon being unintentional.Defendant was convicted of possession of a firearm by an ex-felon in violation of Penal Code section 12021, subdivision (a). Evidence supported a theory he delivered the bag to the gun shop without knowing a gun was inside the bag. The trial court prejudicially erred in refusing his proposed special instruction regarding the possibility that temporary possession of a weapon may be unintentional. Although the proposed instruction was flawed in certain respects, it was a reasonable attempt to articulate a valid legal principle supported by the evidence.id: 10676
Updated 1/31/2024Prohibition on felons possessing ammunition does not violate the Second Amendment.Defendant was convicted of being a felon in possession of ammunition in violation of Penal Code section 30305(a). Contrary to his claim on appeal that statute does not violate the Second Amendment.id: 28065
Penal Code section 654 did not bar separate punishments where defendant was convicted of seven counts of weapon possession. Defendant was convicted of seven counts of being a felon in possession of a firearm based on his simultaneous possession of seven different weapons. Penal Code section 654 does not bar multiple punishment for multiple violations of the same statute. Because this was an unsettled question it was not applied to defendant. Even so, defendant’s sentence did not violate section 654 because specific statutory authority (Penal Code section 23510, formerly section 12001, subd.(k) makes possession of each weapon a separate offense.id: 22753
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
Trial counsel was not ineffective by failing to request pinpoint instructions on unintentional temporary possession of the gun in the car.Defendant was convicted of being a felon in possession of a firearm under Penal Code section 12021, subd.(a)(1) and carrying a concealed firearm in a vehicle under section 12025, subd. (a)(3). He argued that trial counsel rendered ineffective assistance of counsel by failing to request a pinpoint instruction suggesting that the unintentional temporary possession of the gun would constitute a defense. However, contrary to defendant's claim, the evidence in support of such a theory was not uncontradicted. Moreover, counsel could reasonably have concluded that a specific instruction would not help the defense. A specific instruction highlighting the defense theory would include the limits of such a defense which were unfavorable to defendant. It was reasonable for defense counsel to argue a common sense rather than legalistic interpretation of possession.id: 16780
Possession of a firearm by a convicted felon is not a lesser included offense of causing a firearm to be concealed in a vehicle.Defendant argued that possession of a firearm by a convicted felon under Penal Code section 12021, subd.(a)(1) is a lesser included offense of causing a firearm to be concealed in a vehicle under section 12025, subd.(a)(3). However, it is possible for a person to cause to be concealed a firearm that is not in his or her possession or control, such as by conduct that conceals from view a firearm that is in the possession and control of another person. Therefore, possession is not a necessarily included offense.id: 16781
Defendant may be convicted of being a felon in possession of a weapon if he possesses the barrel or the receiver of the gun.Penal Code section 12001, subd.(c) provides that for purposes of possession of a firearm by a felon (section 12021, subd. (a)), the term firearm includes the frame or receiver of the weapon. Possession of the frame or receiver is sufficient to support the conviction. Defendant had argued that the evidence did not support the conviction because he did not possess both the barrel and the frame. However, because possession of the barrel was undisputed, and only his possession of the frame was contested, the evidence supported his conviction of violating section 12021. id: 19401
Defendant was properly convicted of being an ex-felon in possession of a weapon notwithstanding his honorable discharge from the CYA.Defendant argued his conviction under Penal Code section 12021 for being an ex-felon in possession of a firearm was improper because he had been honorably discharged from the California Youth Authority for the prior felony and Welfare and Institutions Code section 1772 subdivision (a) provides for the release from all penalties and disabilities associated with the offense once the youth receives an honorable discharge. However, the prohibition of section 12021 against carrying a concealable firearm is not a penalty or disability within the meaning of section 1772.id: 10680
Defendant's status as a convicted felon is not an element of carrying a concealed firearm in a vehicle.For purposes of Penal Code section 12025 - felony carrying of a concealed firearm in a vehicle - defendants status as a convicted felon is a sentencing factor, not an element of the crime. The trial court therefore erred in admitting evidence of defendant's prior conviction, and in instructing the jury that an element of the offense was that defendant had suffered a prior conviction.id: 15535
In a prosecution for possession of a firearm by felon, a defendant need not be advised of the Boykin-Tahl rights before stipulating to his or her status as a felon.The trial court was not required to provide <i>Boykin-Tahl</i> advisements before permitting defendant, through his counsel, to stipulate during his trial for possession of a firearm by a felon that he had previously been convicted of a felony.id: 15540
Assuming an Arizona statute restored defendant's right to possess a firearm in that state, the Full Faith and Credit Clause does not bar California from prosecuting defendant under section 12021.Defendant was convicted of being a convicted felon in possession of a firearm under Penal Code section 12021, subdivision (a)(1). His prior conviction for aggravated assault occurred in Arizona. He argued that under the Full Faith and Credit Clause of the United States Constitution, California must give full faith and credit to Arizona's alleged restoration of his right to possess firearms in that state, and in doing so precludes his prosecution by California for possessing a firearm in this state. However, even assuming an Arizona statute has restored defendant's right to possess a firearm in that state, the Full Faith and Credit Clause does not bar California from prosecuting defendant under section 12021, subdivision (a)(1).id: 15527
Defendant may not attack a conviction of felon in possession of a firearm by showing his Arizona prior would not have been a felony in California.Defendant was convicted of being a felon in possession of a firearm pursuant to Penal Code section 12021, subdivision (a)(1). He argued reversal was required because it was not shown beyond a reasonable doubt that the acts giving rise to the prior Arizona conviction would have been a crime, much less a felony, in California. However, section 12021, subdivision (a)(1) is satisfied if the defendant has been convicted of a felony under the law of any state, regardless of whether the offense would have been punished as a felony in California.id: 15533
Appellant was properly convicted of possessing a sawed-off shotgun and being an ex-felon in possession of a weapon where that offense referred to the same shotgun.Appellant was convicted of possession of a sawed-off shotgun pursuant to Penal Code 12020 and possession of a concealable firearm (a shotgun) as a felon pursuant to Penal Code section 12021.1. He argued both convictions could not stand because the language of the pleading alleging the section 12021.1 violation encompassed a violation of section 12020, in that both cases involved the same shotgun. However, only a statutorily lesser included offense is subject to the bar against multiple convictions in the same proceedings. An offense that may be a lesser included offense because of the specific nature of the accusatory pleading is not subject to the same bar.id: 10639
Brandishing a replica weapon is not a lesser related offense of ex-felon in possession of a weapon.Appellant was convicted of being an ex-felon in possession of a firearm pursuant to Penal Code section 12021. He argued that the court erred in failing to instruct on section 417.2 (brandishing of a replica firearm which induces fear of bodily harm) which he claimed was a lesser related offense. However, section 417.2 is not a lesser related offense of section 12021. Moreover, the defense theory that another person, not appellant had brandished a weapon or replica was totally inconsistent with and irrelevant to appellant's commission or conviction of the lesser offense of violation of section 417.2.id: 10640
Defendant charged as an ex-felon in possession of a weapon was not entitled to instructions on the defenses of necessity and transitory possession of the firearm.Defendant was convicted of possession of a firearm by an ex-felon (Penal Code section 12021). The trial court did not err in failing to instruct on the defenses of necessity and transitory possession of the firearm. Section 12021 prohibits convicted felons from possessing firearms even momentarily except in self-defense, in defense of others, or as a result of legal necessity. Defendant's statement that he took hold of the weapon to protect a child from the perceived danger posed by the presence of the weapon did not satisfy the elements of any of these exceptions.id: 10648
Defendant who possessed the gun for two days was not entitled to an instruction on temporary possession for purposes of disposal.Defendant was charged with being a felon in possession of a firearm, carrying a loaded firearm in a vehicle and carrying a concealed firearm in a vehicle. He was not entitled to an instruction on temporary possession for purposes of disposal. He maintained control over the gun for at least two days during which time he loaded the weapon and was free to use it in any way he saw fit. His conduct in continuing to maintain dominion and control over the weapon for days vitiated any initial entitlement to a temporary possession for disposal defense.id: 10650
Escape following misdemeanor conviction may not be used as a prior felony to enhance but may be used as a basis for an ex-felon in possession of a weapon prosecution.Defendant was convicted of possession of a concealable firearm by a convicted felon under Penal Code section 12021, subdivision (a). His prior conviction was for a felony escape following a misdemeanor conviction under section 4532, subdivision (a). A conviction under that section may not be charged as a prior felony conviction in subsequent prosecution. Defendant argued that since it may not be used as a prior felony conviction to enhance a sentence, it likewise may not be used as the basis for a charge under section 12021. However, the limiting language in section 4532, subdivision (a) does not apply when a prior felony conviction is used, not to add an enhancement, but to establish an element of the offense in a subsequent prosecution.id: 10651
Court erred in failing to use the same prior to establish a violation of section 12021 and trigger application of the three strikes law.Defendant pled guilty to possession of a firearm by a felon (Penal Code section 12021) and admitted that he suffered a prior felony conviction and served a prior prison term. The trial court erred in refusing to sentence defendant pursuant to Penal Code section 667, subd.(e)(1), which required a doubling of the base term. Using the single prior felony conviction both to establish the elements of a violation of section 12021 and to trigger application of the three strikes law was not improper.id: 9329
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.
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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