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C.A. Says Flare Gun Is Not ‘Firearm’ Unless Prosecution Proves It Is Designed as Weapon
Opinion Overturns Possession Conviction Because Prosecution Failed to Show That Device Is Made to Inflict Harm, Even Though It Otherwise Meets Penal Code Definition
By a MetNews Staff Writer
The Sixth District Court of Appeal has overturned the conviction of a felon found to be in possession of a firearm based on a search revealing an unloaded flare pistol at his residence, finding that the device only qualifies as a gun if it is proven that it is designed to be used as a weapon.
At issue is Penal Code §16520, which provides, in subdivision (a), that “firearm” is defined 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.”
Subdivision (b) specifies that the definition “includes the frame or receiver of the weapon” for purposes of the statute prohibiting the possession of guns by felons.
In Monday’s opinion, authored by Presiding Justice Mary J. Greenwood and joined in by Justices Adrienne Grover and Charles Edward Wilson, the court noted case law from other states finding that flare guns do not qualify as “weapons” and held that, if basing criminal charges on such an instrument, the prosecution must present evidence suggesting that the device was designed to be used as an instrument to inflict harm.
Greenwood wrote:
“We need not decide whether flare guns as a general matter are ‘weapons’ or designed to be used as weapons under the ordinary definition of the word. The question here is narrower: whether the evidence supported a finding that the flare gun in [the defendant’s] possession was a firearm….
“The prosecution did not present any evidence that would reasonably support an inference the flare gun was designed to be used as a weapon. It is relevant to our analysis that multiple courts from other jurisdictions have concluded flare guns as a general matter do not constitute ‘weapons’ within the ordinary meaning of that word. Absent evidence showing otherwise, we cannot conclude a reasonable factfinder could infer beyond a reasonable doubt that the flare gun in this case was designed to be used as a weapon.”
Guilty at Trial
Appealing his conviction was Emiliano Gomez, who was found guilty of stalking, criminal threats, and possession of a firearm by a felon, among other charges. He only challenges the firearm conviction, charged under Penal Code §29800(a)(1).
That section provides:
“Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country,…and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony.”
The charges arose after Gomez’s ex-wife, identified only as Jane Doe, called the police in late 2022 to report that he was threatening to kill her and had sent her photographs of himself holding a rifle and showing the outside of her house. Gomez had previously been convicted of a felony for assaulting Doe with a knife.
During a search of Gomez’s residence, police found seven live rounds of nine-millimeter ammunition, multiple firearm holsters, a BB gun rifle, and an unloaded Orion flare gun.
After examination, the flare gun was found to be in working order. An officer with the Monterey County Sheriff’s Department testified that the device has an intact frame or receiver, is designed to expel a projectile through the barrel using an explosive or combustion force, and qualifies as a “firearm” within the meaning of the Penal Code. The instrument was not admitted into evidence.
Following a court trial, Monterey Superior Court Judge Pamela L. Butler found him guilty of the charges and sentenced him to four years in prison.
Contentions on Appeal
Gomez does not dispute that there was sufficient evidence proving that he was in possession of the flare gun and that he was a felon at the time of the search. He argues only that there is no evidence in the record showing that the device was “designed to be used as a weapon.”
Greenwood said that “[a]lthough the police officer testified that ‘a flare gun’ is a firearm,…nothing in California statutes or caselaw defines a flare gun as a firearm as a matter of law” and noted that “[a]s a general matter, flare guns are designed for use by boat operators for emergency purposes.”
She opined:
“Apart from the police officer’s testimony, the Attorney General cites nothing in the record showing the flare gun was designed to be used as a weapon. The Attorney General contends it was sufficient to show the flare gun had an intact frame or receiver, and that it was designed to expel a projectile through the barrel using the force of an explosion or some other form of combustion. But as Gomez points out, applying the statute in that fashion would render the phrase ‘designed to be used as a weapon’ surplusage….”
She pointed out that §16520(c) expands the definition of “firearm” to include devices designed for emergency signaling for purposes of other Penal Code sections and reasoned:
“This subdivision—which does not use the word ‘weapon’—shows the Legislature knew how to include non-weapon devices designed for emergency or distress signaling purposes in the definition of a ‘firearm.’ However, this subdivision does not include section 29800 in its list of covered provisions.”
Statutory History
Greenwood acknowledged that the plain language of the section may be ambiguous and looked to the statutory history. She explained that the “frame or receiver” language was added to §16520 in 1969 in response to the Second District’s 1968 decision in People v. Jackson, in which the court reversed a conviction for possession of a firearm by a felon due to the inoperable nature of the gun in question.
The jurist explained that courts have consistently cited the 1969 amendment as evidence of a legislative intent to include even non-functioning guns in the prohibited class of firearms, but noted that changes to the statutory language have dependably referred to “weapons” in the applicable definitions.
Based on this legislative history, she declared:
“We conclude…that section 16520, subdivision (b) does not exclude the elements of subdivision (a), and that the prosecution was therefore required to show the flare gun was ‘designed to be used as a weapon.’ But even if we interpreted subdivision (b) of section 16520 as prohibiting the possession of a frame or receiver notwithstanding the requirements of subdivision (a), subdivision (b) refers to ‘the frame or receiver of the weapon.’….The record would still have to include sufficient evidence showing the flare gun possessed by Gomez was a ‘weapon.’ ”
Noting cases in Minnesota and Illinois holding that flare guns are not weapons, she found that contrary decisions from other jurisdictions were not persuasive.
She pointed out that the ordinary use of the word “weapon” generally means an instrument designed to injure or kill, and declared:
“[T]he evidence was insufficient to support Gomez’s conviction on count 5 for possession of a firearm by a felon under 29800, subdivision (a)(1). We reverse the judgment, vacate the conviction on count 5, and remand the matter for resentencing.”
The case is People v. Gomez, 2025 S.O.S. 994.
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