Reported / Citable
Background
Robert Antoine-Deshawn Newt was charged after officers attempted a traffic stop of a vehicle he was driving. He fled the vehicle, and officers found an assault rifle equipped with a large-capacity magazine on the front seat. He was charged with multiple offenses, including receiving a large-capacity magazine in violation of Penal Code section 32310, subdivision (a), a wobbler punishable as a felony or misdemeanor.
Penal Code section 32310 distinguishes between two categories of conduct related to large-capacity magazines. Subdivision (a) makes it a wobbler to manufacture, import, keep for sale, offer for sale, give, lend, buy, or receive a large-capacity magazine. Subdivision (c) makes it an infraction or misdemeanor to merely possess such a magazine. The legislative history of the statute shows that “receives” was added to subdivision (a) in 2013, while subdivision (c)’s possession offense was added in 2016 by Proposition 63.
A jury convicted Newt of the felony receiving offense under subdivision (a). On appeal, Newt argued that the prosecution presented evidence only of his possession of the magazine, not of his receipt of it as a separate transactional event. He also raised instructional error and constitutional arguments.
The Court’s Holding
The First District Court of Appeal, Division One, reversed the receiving conviction for insufficient evidence. The court held that the term “receives” in section 32310, subdivision (a) means more than mere possession. Subdivision (a) deals with conduct related to the production, distribution, and acquisition of large-capacity magazines, while subdivision (c) addresses the separate, lesser conduct of mere possession. To convict under subdivision (a), the prosecution must show evidence of the act of acquiring or receiving the magazine, not just that the defendant possessed it at some point.
The court traced the legislative history of section 32310. The original 2010 statute targeted manufacturing, importing, sale, gifting, and lending. The 2013 amendment added “buys, or receives” to subdivision (a). Possession became a separate, lesser offense in 2016. Reading “receives” to encompass mere possession would render the new possession offense redundant and would convert what the Legislature treated as an infraction or misdemeanor into a wobbler in every case where someone happens to possess such a magazine.
Applying that interpretation, the court held that the evidence at trial established only that Newt possessed the magazine on the front seat of the car he was driving. There was no evidence about how, when, or under what circumstances he came into possession of the magazine. The prosecution’s arguments about Newt’s consciousness of guilt, his recent purchase of the car, and the running of the limitations period were all speculation that did not bear on whether he had “received” the magazine within the meaning of subdivision (a). Because the felony conviction was reversed for insufficient evidence, the court did not reach Newt’s instructional and constitutional arguments. The remainder of the judgment was affirmed.
Key Takeaways
- Penal Code section 32310, subdivision (a)’s “receiving” offense requires evidence of the act of acquiring or receiving the magazine, not just possession at some point in time.
- Mere possession of a large-capacity magazine is a separate, lesser offense under section 32310, subdivision (c), punishable as an infraction or misdemeanor.
- Reading “receives” broadly to include mere possession would render the possession offense redundant, contrary to legislative intent.
- Evidence of a defendant’s consciousness of guilt or recent purchase of a vehicle in which the magazine was found does not, by itself, establish receipt as opposed to possession.
- Charging decisions in large-capacity magazine cases must distinguish between the production-and-acquisition offenses in subdivision (a) and the possession offense in subdivision (c).
Why It Matters
This decision is an important clarification for prosecutors and defense lawyers handling large-capacity magazine cases. Many such cases arise from traffic stops or searches that uncover the magazine in someone’s possession, without direct evidence of how or when the magazine was acquired. The opinion makes clear that those facts support only a possession offense under subdivision (c), not a felony receiving offense under subdivision (a).
For prosecutors, the case is a guide to the kinds of evidence that can support a subdivision (a) charge: testimony about a sale or transfer, documentary evidence about acquisition, statements by the defendant about how the magazine was obtained, or other evidence of the act of receiving. For defense lawyers, the opinion provides strong authority for moving for judgments of acquittal on subdivision (a) charges supported only by possession evidence and for arguing that the case should proceed on the lesser subdivision (c) offense.