New Appeal Ruling Discusses Proof Needed for a Felony Receiving of a Large-Capacity Magazine Beyond Mere Possession

Case Alert
By Raymond Hill
Professor Emeritus, Santa Rosa Junior College 

Legal Issue and Case Citation

• Additional proof is required for felony receiving of a large capacity magazine beyond mere possession (32310(a) p.c.)

Facts: In this Contra Costa County case, officers attempted a traffic stop, however the defendant began a high-speed pursuit and then fled the vehicle. Officers found an assault weapon and a large-capacity magazine on the front seat of the abandoned vehicle. At trial, the defendant was convicted of felony (wobbler) receiving a large capacity magazine, among other offenses. There was no evidence presented at trial on how or when the defendant acquired the magazine.

The defendant appealed on grounds that mere possession of a high-capacity magazine is insufficient to establish the act of receiving; that he should only have been convicted of the misdemeanor/infraction part of the statute (wobblette).

Finding: 1DCA ruled there is a distinction between receiving and possessing, albeit the wording in the statute provides no specific guidelines. It is prima facie that one in possession must have received at one point. However, the court offered that in order to establish a receiving charge there must be additional evidence of how or when the magazine was acquired. Examples offered would be importing into this state, possession for sale, offering for sale, or giving or lending. One would be the provider, not a possessor.

Author’s comments: If I were to teach this statute in the basic academy, an initial felony arrest would be good under 836(a)(3) P.C.: probable cause to believe a felony has been committed whether or not in fact committed. Then, follow-up investigation would be needed to support a receiving charge. Just leaving your report that a suspect “possessed” an item will not result in the filing of a felony complaint.