People v. Thompson

Opinion

SCOTT, Acting P. J.

On appeal from a judgment of conviction for violation of section 12021 of the Penal Code (possession of a concealable firearm by a person who has been convicted of a felony), appellant contends that the conviction cannot stand because the People failed to prove that the gun was operable, and because there was insufficient evidence to prove that he possessed it.

Subdivision (a) of section 12021 provides in relevant part: “Any person who has been convicted of a felony . .. who owns or has in his possession or under his custody or control any pistol, revolver, or other firearm capable of being concealed upon the person is guilty of a public offense,...”

In

People

v.

Jackson

(1968) 266 Cal.App.2d 341 [72 Cal.Rptr. 162], it was held that possession of an inoperable firearm could not provide the basis for a conviction under section 12021, unless the defendant also possessed the means to render the weapon operable. The court reasoned that the purpose of the statute was “ ‘to make it unlawful for ex-convicts to carry a gun that will shoot and not merely objects that look like usable guns.’ ”

(Id.,

at p. 347.)

The uncontradicted evidence in the case at bench was that the gun in question was missing a clip and that as a safety measure the

[4]

weapon could not be fired in the absence of said clip, or without inserting an object such as a pencil into the gun to release the safety. There was no evidence that appellant possessed any item (clip, pencil or the like) which would release the safety. Thus, if the

Jackson

rule were of continuing validity, the judgment would have to be reversed. We hold, however, that the

Jackson

case has been overridden by subsequent legislative action.