People v. Gomez

Summary

The California Court of Appeal held that Penal Code section 29800, subdivision (a)(1) requires the prosecution to prove that a flare gun was designed to be used as a weapon to qualify as a firearm. Because the evidence was insufficient to establish that requirement, the court vacated Gomez’s conviction for possession of a firearm by a felon and remanded for resentencing. The court rejected Gomez’s Second Amendment challenge to California’s prohibitions on felons’ possession of firearms and ammunition.

Holdings

1. To prove a violation of Penal Code section 29800, subdivision (a)(1), the prosecution must establish that the possessed device, or its frame or receiver, satisfies the definition of firearm in section 16520, subdivision (a), including that it was designed to be used as a weapon. Evidence that the flare gun was operable, capable of expelling a projectile by combustion, and had an intact frame or receiver was insufficient without evidence that it was designed to be used as a weapon.
2. Penal Code sections 29800, subdivision (a)(1), and 30305, subdivision (a)(1), do not facially violate the Second Amendment.

Questions Presented

1. Whether substantial evidence supported Gomez's conviction for possession of a firearm by a felon under Penal Code section 29800, subdivision (a)(1), where the alleged firearm was a flare gun and the prosecution did not prove that it was designed to be used as a weapon.
2. Whether Penal Code sections 29800, subdivision (a)(1), and 30305, subdivision (a)(1), facially violate the Second Amendment.

Disposition

reversed_and_remanded