By Raymond Hill  
Professor Emeritus, Santa Rosa Junior College 

A Flare Gun is Not a Firearm (29800(a)(1) P.C.) 

Peo. v. Gomez, 6DCA (4/7/25) 2025 WL 1024681, 2025 Cal. App. Lexis 226. 

Facts: After the defendant texted to his wife a picture of him holding a rifle, along with additional texts and emails threatening to kill her and take his own life, police searched his home and recovered ammunition and a flare gun. 

The defendant was convicted in Monterey County Superior Court on various offenses, including stalking, criminal threats and possession of a firearm and ammunition by a felon. He was sentenced to four years in CDC&R. 

Held: 6DCA ruled a flare gun did not meet the statutory definition of a firearm because it was not “designed to be used as a weapon.” A firearm is a device designed to be used as a weapon from which a projectile is expelled through a barrel by the force of an explosion or combustion (16520(a) & (b) P.C.) In contrast, flare guns are designed for use, for example, by a boat operator as a signaling device to expedite rescue efforts, by a firefighter to start a defensive fire or for vegetation management. As such, a flare gun is not designed to be a weapon as defined in statute. 

The case was remanded to Monterey County Superior Court for resentencing, minus the finding of the defendant as a felon in possession of a firearm. 

Notes: The court included quite a lengthy discussion of the definition of a “firearm” and a “weapon” in its ruling. The defendant also challenged the felon in possession of a firearm statute (29800(a)(1) P.C.) as violating the Second Amendment right to bear arms. The court discarded this argument as other California appellate courts have. Bob Phillips has posted explanations of several previous cases on this subject available for review for Professional Subscribers.