Return to CALJIC Part 9-12 – Contents
F 12.43 n1 Possession Of Firearm By Ex-Felon: Intoxication Or Mental Impairment May Negate Knowledge Of Weapon’s Presence (PC 12021 & PC 12021.1).
A necessary element of the crime defined by PC 12020 is “knowledge of the presence of the weapon.” (See CJ 12.40; see also People v. Corkrean (84) 152 CA3d 35, 41 [199 CR 375].) The question of whether intoxication, mental defect, etc. may negate the knowledge elements of drug possession crimes is discussed at FORECITE F 4.21 n4; see also FORECITE F 12.00 n1. The analysis in FORECITE F 12.00 n1 is equally applicable to other possession offenses such as those involving weapons/firearms/destructive devices (CJ 12.40, CJ 12.41, CJ 12.44, CJ 12.45, CJ 12.46, CJ 12.46.1, CJ 12.46.2, CJ 12.47, CJ 12.47.1, CJ 12.47.5, CJ 12.47.6, CJ 12.52, CJ 12.53, CJ 12.54, CJ 12.55, CJ 12.55.1, CJ 12.55.2, CJ 12.55.4, CJ 16.460, CJ 16.470.)
F 12.43 n2 Possession Of Firearm By Ex-Felon: (PC 12021 & PC 12021.1).
For issues relating to possession, see FORECITE F 1.24a.
F 12.43 n3 Possession Of Firearm By Ex-Felon: Mistake Of Fact As To Status As Felon — Reliance On Governmental Advice (PC 12021 & PC 12021.1).
Normally the defendant’s mistake of fact as to his or her status as a felon is not a defense to ex-felon based offenses. (People v. Snyder (82) 32 C3d 590, 594-95 [186 CR 485].) However, mistake of fact can be a defense if unusual factors, such as governmental advice, may have misled the defendant. (Snyder 32 C3d at 595; see also U.S. v. Laskie (9th Cir. 2001) 258 F3d 1047 [even if the defendant’s conviction was improperly “set aside” by a state court, the defendant may still not be convicted if he or she was “mousetrapped” – that is, led to believe by the state that the state had released him from all penalties and disabilities from the crime of which he had been convicted]; FORECITE F 4.006a “Equitable Estoppel.”)
F 12.43 n4 Possession Of Firearm By Ex-Felon: Juror Unanimity (PC 12021 & PC 12021.1).
When there is evidence that the defendant was in possession of two or more illegal weapons the possession of which was separated either in terms of time or space, then the jury should be given an instruction requiring a unanimous determination as to which possession constitutes the offense. (See FORECITE F 17.01 n6.)
F 12.43 n5 Multiple Possessions Of Firearm By Ex-Felon: (PC 12021 & PC 12021.1).
As to the permissibility of multiple conviction for the possession of multiple units of contraband, see FORECITE F 17.02 n4.
F 12.43 n6 Possession Of Firearm By Ex-Felon: Violent Nature Of Prior Offense Is Not Element Of Charge (PC§ 12021 & 12021.1).
Although the offenses listed in PC 12021.1(b) are considered violent, the statute does not require proof of the nature of the underlying conviction or enhancement. It is the fact of the prior offense, not its nature, that forms the previous conviction element of the statute. (People v. Hopkins (92) 10 CA4th 1699, 1704-05 [13 CR2d 451].)
(See FORECITE F 12.44a et. seq. regarding stipulation to the fact of the prior conviction.)
F 12.43 n7 Duty To Define “Right To Control” Re Possession Of Firearm By Ex-Felon (PC 12021 & PC 12021.1).
[See FORECITE F 1.24 n5.]
F 12.43 n8 Possession of Firearm By Ex-Felon: Requisite Intent Is To Exercise Control Over Or To Have Custody Of The Gun — Misfortune Or Mistake As Defense (PC 12021).
Wrongful intent must be shown with regard to the possession and custody elements of the crime of being a felon in possession of a firearm in violation of PC 12021. (People v. Snyder (82) 32 C3d 590, 598 [186 CR 485].) A person who commits a prohibited act through misfortune or by accident, when it appears that there was no evil design, intention or culpable negligence has not committed a crime. (PC 26.) Thus, a felon who acquires possession of a firearm through misfortune or accident, but who has no intent to exercise control or to have custody, commits the prohibited act without the required wrongful intent. (People v. Jeffers (96) 41 CA4th 917 [49 CR2d 86].) Otherwise, the ex-felon would be strictly liable for the crime immediately on finding a firearm, even if found under innocent circumstances. Accordingly, the failure to instruct on criminal intent in such a case is reversible error. (Ibid.)
F 12.43 n9 Ex-felon With Firearm: Whether Momentary Possession Per Drug Cases (Mijares) Is Applicable.
People v. Pepper (96) 41 CA4th 1029, 1037-38 [48 CR2d 877] rejected the defendant’s argument based on People v. Mijares (71) 6 C3d 415 [99 CR 139], that mere transitory possession of a firearm is insufficient to establish a violation of PC 12021. However, the Pepper court did recognize that momentary possession does not violate PC 12021 if it was for the purpose of self-defense, defense of others or other legal necessity.
People v. Hurtado (96) 47 CA4th 805, 813-14 [54 CR2d 853] disagreed with Pepper and concluded that the “momentary possession” defense extends to offenses which punish possession of a firearm by an ex-felon. However, the court further held that the defense is inapplicable to more lengthy possession incidental to a defendant’s “intent” to dispose of the item.
Hurtado was cited with approval in People v. Martin (2001) 25 C4th 1180, 1191 [108 CR2d 599].
In any event, however, possession which is not intentional should not be subject to criminal liability and the jury should be so instructed upon request. (See FORECITE F 12.43a.)
F 12.43 n10 Ex-Felon With Firearm: Necessity As Defense.
People v. Pepper (96) 41 CA4th 1029, 1034-35 [48 CR2d 877] implied that under the right circumstances necessity could be a defense to possession of a firearm by an ex-felon in violation of PC 12021. However, under the circumstances in Pepper, the defense was not available in that case.
F 12.43 n11 Ex-Felon With Firearm: Felony Status of Predicate Crime is Not an Element.
The felony status of the predicate crime charged under PC 12021 was held not to be an element of the charge for resolution by the jury in People v. Haywood DEPUBLISHED (6/17/96, E010654) 46 CA4th 569, 578-79 [54 CR2d 120]. The status of the predicate crime as a felony is a legal question for the judge to resolve and neither the presentation of evidence before the jury or instruction of the jury on this issue is required.
F 12.43 n12 Possession of Firearm by Misdemeanant: Equal Protection Challenge.
In re Evans (96) 49 CA4th 1263 [57 CR2d 314] held that PC 12021(c) is unconstitutional in that it denies 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. (Evans, at 1272-73.) Therefore, defendants convicted of qualifying misdemeanors can pursue equal protection challenges to the firearm prohibition statute. (PC 12021(c).)
F 12.43 n13 Possession Of Firearm By Misdemeanant: Ex Post Facto Challenge.
People v. Mesce (97) 52 CA4th 618 [60 CR2d 745] 97 DAR 1199 held that application of PC 12021(c) to a defendant whose prior misdemeanor conviction predated the statute did not violate constitutional ex post facto principles because the defendant was convicted based on conduct occurring after the effective date of the statute.
F 12.43 n14 Possession Of Firearm By Ex-Felon: Effect Of Expungement Or Pardon (PC 12021 & PC 12021.1).
A dismissal of a conviction under PC 1203.4 is not an “expungement” and does not offer protection against conviction pursuant to PC 12021 for possession of nonconcealable weapon. (People v. Frawley (2000) 82 CA4th 784, 790-92 [98 CR2d 555].) However, a pardon does preclude conviction for weapon possession, unless the conviction was for a felony involving the use of a dangerous weapon. (PC 4852.17.)
F 12.43a
Ex-Felon With Firearm: Momentary Possession
(PC 12021)
* Add to CJ 12.43 when appropriate:
When an ex-felon comes into possession of a firearm without knowing that [he] [she] has a firearm, and [he] [she] later learns that [he] [she] has a firearm, [he] [she] does not automatically violate PC 12021(a) upon acquiring knowledge of the firearm. The ex-felon violates the law only if it is proved that [he] [she] intentionally retained possession of the weapon after learning of its presence and did not take reasonable steps to immediately relinquish possession of it.
Points and Authorities
The question of whether traditional rules relating to momentary possession of drugs apply to possession of a firearm by an ex-felon per PC 12021 (a) is unsettled.
When an ex-felon’s possession of a firearm is unintentional, the defendant should have a right to an instruction which informs the jury that unintentional temporary possession is not a violation of the statute. (People v. Jeffers (96) 41 CA4th 917, 924 [49 CR2d 86].) The above instruction is adapted from the instruction requested in Jeffers, which the appellate court held that, though “flawed in some respects …, was a reasonable attempt to articulate a valid legal principle supported by the evidence.” (Jeffers, 41 CA4th at 925.)