Constructive possession in Ca

[ap3572001]

I am well educated on constructive possession ATF laws. How about CA DOJ? Do we have anything in the penal code that deals with this subject ? Example : does a complete AR lower and a complete rifle upper NOT ASSEMBLED equal a rifle in the eyes of CA LAW?

[RickD427]

I am well educated on constructive possession ATF laws. How about CA DOJ? Do we have anything in the penal code that deals with this subject ? Example : does a complete AR lower and a complete rifle upper NOT ASSEMBLED equal a rifle in the eyes of CA LAW?

California law applies "Constructive Possession" language to the definition of Machine Guns, Short Barrel Rifles, and Short Barrel Shotguns.

California law does not apply "Constructive Possession" language to the definition of an "Assault Weapon."

However, you should also be aware of the California State Supreme Court decision in People v Nguyen which recognized the crime of "Attempted Possession of an Assault Weapon" which is very nearly the same as "Constructive Possession" with an added element of intent to complete.

[ap3572001]

California law applies "Constructive Possession" language to the definition of Machine Guns, Short Barrel Rifles, and Short Barrel Shotguns.

California law does not apply "Constructive Possession" language to the definition of an "Assault Weapon."

However, you should also be aware of the California State Supreme Court decision in People v Nguyen which recognized the crime of "Attempted Possession of an Assault Weapon" which is very nearly the same as "Constructive Possession" with an added element of intent to complete.

So how is "attempted possession of assault weapon" defined? This sounds very overreaching. It's like saying that a person with a BB equipped AR and 30rd magazine in the same bag ( or a standard magazine release button and needed tools to make a change. ) is attempting a possession of an Assault Weapon.

[RickD427]

So how is "attempted possession of assault weapon" defined? This sounds very overreaching. It's like saying that a person with a BB equipped AR and 30rd magazine in the same bag ( or a standard magazine release button and needed tools to make a change. ) is attempting a possession of an Assault Weapon.

You would have to read the Nguyen decision. Like most case decisions, it really does not lend itself well to a "Cliff Notes" version without loosing too much content.

[ap3572001]

You would have to read the Nguyen decision. Like most case decisions, it really does not lend itself well to a "Cliff Notes" version without loosing too much content.

I looked though it. My understanding that the defendant was a felon.

[RickD427]

I looked though it. My understanding that the defendant was a felon.

He was. But that point is irrelevant to the "Attempted Possession" charge. The dicta in the decision would make the conviction, on that charge, equally applicable to a person with no criminal history.

The concern about the case, is that while the prosecutor likely filed the case because Nguyen was an unsavory knucklehead, the case holding stands on its own and is not restricted to unsavory knuckleheads.

[ap3572001]

He was. But that point is irrelevant to the "Attempted Possession" charge. The dicta in the decision would make the conviction, on that charge, equally applicable to a person with no criminal history.

The concern about the case, is that while the prosecutor likely filed the case because Nguyen was an unsavory knucklehead, the case holding stands on its own and is not restricted to unsavory knuckleheads.

Ok. So basically , they can do whatever they want .

[RickD427]

Ok. So basically , they can do whatever they want .

Well, not quite. In addition to showing all the requirements for a "Constructive Possession" conviction, the prosecution also has to show that there was some intent to actually complete the assembly.

[noozeyeguy]

Ok. So basically , they can do whatever they want .

In a nutshell, yes.

[cvigue]

California law applies "Constructive Possession" language to the definition of Machine Guns, Short Barrel Rifles, and Short Barrel Shotguns.

California law does not apply "Constructive Possession" language to the definition of an "Assault Weapon."

However, you should also be aware of the California State Supreme Court decision in People v Nguyen which recognized the crime of "Attempted Possession of an Assault Weapon" which is very nearly the same as "Constructive Possession" with an added element of intent to complete.

That's possibly the most concise and accurate summary that's possible, bravo.

[ap3572001]

Well, not quite. In addition to showing all the requirements for a "Constructive Possession" conviction, the prosecution also has to show that there was some intent to actually complete the assembly.

That's interesting . When I pull someone over for speeding , they actually need to be speeding. Having a car that looks like it belongs on a race track and having race car driving experience is not enough. Having intent to go over the speed limit is not enough.

[RickD427]

That's interesting . When I pull someone over for speeding , they actually need to be speeding. Having a car that looks like it belongs on a race track and having race car driving experience is not enough. Having intent to go over the speed limit is not enough.

That's all true, but none of what you just wrote reflects the provisions of Penal Code section 664 which the court applied in the Nguyen decision.

[IVC]

That's interesting . When I pull someone over for speeding , they actually need to be speeding. Having a car that looks like it belongs on a race track and having race car driving experience is not enough. Having intent to go over the speed limit is not enough.

It's different because speed in context of driving is a well-defined concept and can be measured directly. If there is no speeding, well, there is no speeding.

A closer comparison would be someone drunk at the steering wheel with the engine running, but not driving. While it can easily be proven that the person is drunk, the not-so-clear question is whether the person was driving in the first place. (Most states would consider it "driving.")

Constructive possession is tricky because one can have an empty magazine and try to claim it's not a machine gun because it cannot fire, much like one can claim it's not a machine gun because it's disassembled. We have case law on all of these issues (it's the "ATF laws" OP talks about), but when it comes to CA AWs we have Nguyen case that Rick explained well - it created a mess.

[ap3572001]

It's different because speed in context of driving is a well-defined concept and can be measured directly. If there is no speeding, well, there is no speeding.

A closer comparison would be someone drunk at the steering wheel with the engine running, but not driving. While it can easily be proven that the person is drunk, the not-so-clear question is whether the person was driving in the first place. (Most states would consider it "driving.")

Constructive possession is tricky because one can have an empty magazine and try to claim it's not a machine gun because it cannot fire, much like one can claim it's not a machine gun because it's disassembled. We have case law on all of these issues (it's the "ATF laws" OP talks about), but when it comes to CA AWs we have Nguyen case that Rick explained well - it created a mess.

Understood. So I was correct , they can do whatever they want ...... I You have a legally pourchased and configured FEATURES AR15 ( or any other semiautomatic rifle but have all what's needed to making it into an AW according to CA LAW, You can be charged with constructive possession because YOU CAN change the configuration of the gun???? This is nuts.

[RickD427]

Understood. So I was correct , they can do whatever they want ...... I You have a legally pourchased and configured FEATURES AR15 ( or any other semiautomatic rifle but have all what's needed to making it into an AW according to CA LAW, You can be charged with constructive possession because YOU CAN change the configuration of the gun???? This is nuts.

Nope, you still got it wrong.

Having the ability to change the configuration of the weapon ("YOU CAN") is very different from having the intent to change the configuration of the weapon.