Ex felon in possession of flare gun in not in possession of a weapon

People v. Gomez (Cal. Ct. App., Apr. 7, 2025, No. H051210) 2025 WL 1024681, at *1

Summary: Police found a flare gun in Gomez’s possession. Based on an officer’s testimony describing the flare gun, the trial court found Gomez guilty of possessing a firearm as a felon under Penal Code section 29800, subdivision (a)(1). The Court of Appeal held the prosecution must prove the flare gun was designed to be used as a weapon. Here, the record contained insufficient evidence to support such a finding. The court vacated the conviction on that count.

The court reversed the judgment, vacated the conviction for possession of a firearm by a felon, and remanded the matter for resentencing.

Facts: On September 2022, Gomez was driving an SUV when the police stopped him for speeding. The police searched the SUV and found an Airsoft rifle, a pellet rifle, a starter pistol loaded with blanks, a ballistic helmet, and a vest with metal plates inside it.

An officer testified that he examined the flare gun and that it was capable of firing. The officer testified that the flare gun was designed to expel a projectile through the barrel using the force of an explosion.  On cross-examination, defense counsel asked whether “a flare gun is a firearm,” and the officer responded, “Per the Penal Code definition, yes.” The police did not find any flares for the gun.

Sufficiency of the Evidence for Possession of a Firearm by a Felon

The trial court found Gomez guilty of possession of a firearm as a felon based on his possession of the flare gun. Gomez contends the evidence was insufficient to prove he was in possession of a firearm because there was no evidence the flare gun was “designed to be used as a weapon” under the definition of “firearm” set forth in section 16520, subdivision (a). The Attorney General argues the officer’s testimony supported the conviction because possession of a frame or receiver is sufficient to prove possession of a firearm under section 16520, subdivision (b).

Standard of Review

“To assess the evidence’s sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) The record must disclose substantial evidence to support the verdict such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Ibid.) The Court of Appeal reviews the evidence “in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.]” (Ibid.)

Statutory Background

Section 29800, subdivision (a)(1) provides, in relevant part, “Any person who has been convicted of a felony … and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony.”

Section 16520, subdivisions (a) and (b) set forth the definition of “firearm” as used in section 29800. Subdivision (a) defines “firearm” as “a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion.” (§ 16520, subd. (a).) Subdivision (b) further provides, in relevant part, “ ‘firearm’ includes the frame or receiver of the weapon, including both a completed frame or receiver, or a firearm precursor part.”2 (§ 16520, subd. (b).)

The Evidence Was Insufficient to Prove the Flare Gun Was a Firearm

Gomez does not dispute that sufficient evidence proved he was in possession of the flare gun, and that he was a felon at the time. Gomez argues that there was insufficient evidence to prove the flare gun was a firearm because there is no evidence in the record that the flare gun was “designed to be used as a weapon” under the definition of “firearm” set forth in section 16520, subdivision (a). The Attorney General contends the evidence was sufficient based on the police officer’s testimony that the flare gun had an intact frame, and that it was designed to shoot a projectile through its barrel using the force of an explosion.

Although the police officer testified that “a flare gun” is a firearm, “per the Penal Code,” nothing in California statutes or caselaw defines a flare gun as a firearm as a matter of law. The trial court could not rely on the officer’s testimony to the contrary.

The Evidence Was Insufficient to Prove the Flare Gun Was Designed to Be Used as a Weapon

In absence of a statute defining “weapon,” the court presumes the Legislature intended for it to have its “ordinary meaning.” Dictionary definitions of “weapon” include: “An instrument used or designed to be used to injure or kill someone,” (Black’s Law Dict. (12th ed. 2024)); There is no evidence in the record that would reasonably support an inference the flare gun in Gomez’s possession was used or designed to injure, kill, defeat, destroy, attack or defend against an attack in combat, or contend against any person.

Flare guns are designed for use by boat operators for emergency purposes. “A flare gun is an emergency signalling device employed predominantly aboard boats to expedite rescue efforts.” (State v. Rackle (1974) 55 Haw. 531, 537, 523 P.2d  (Rackle).)

The evidence was insufficient to support Gomez’s conviction on for possession of a firearm by a felon under 29800, subdivision (a)(1).

The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.  Information on this website may not constitute the most up-to-date legal or other information.