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Can You Be Convicted of Possession of a Firearm Without Possessing it in Orange County, CA?

In the summer of 2017, a minor, “Joe,” was sitting in a car directly behind his friend’s Infiniti. When the group in front of Joe saw a member from a rival gang cross the street, they stopped their Infiniti. One of Joe’s friends exited the Infiniti and shot the rival gang member. In the weeks to follow, the police recorded a conversation between Joe and a friend, where Joe said, “everybody touched that gun (from the shooting).”

With this information, a prosecutor charged Joe with possession of a concealed firearm. Three reasons led to this charge: (1) Joe’s statement about touching the gun; (2) Joe was close to the weapon when the shooting took place; (3) Joe knew about the gun before the shooting. These three facts were enough to convict Joe of possession of a concealed firearm.

In an effort to bolster their case, the prosecution used a jailhouse informant.  Joe’s friends told the jailhouse informant that Joe had no connection to the gun. Additionally, his fingerprints and DNA were not found on the gun. No matter the lack of solid evidence, the prosecution was determined to try to get a conviction.

The weak state of the evidence against Joe is highlighted when the elements of possession under the law are understood.  For any type of contraband, possession comes in two forms, actual and constructive. Actual possession could include holding or storing an item on one’s body. Next, constructive possession occurs when someone merely has dominion and control over an item. Dominion and control means that the defendant had a right to control what happened to the gun.

Since Joe didn’t actually possess the gun on his person at the time of the crime, the theory used to try to convict him was constructive possession.  Since Joe was a gang member, it’s not surprising that the judge found that Joe constructively possessed the gun. Joe appealed his conviction.

On appeal Joe successfully argued he clearly did not have dominion and control of the gun. Dominion implies that Joe had ownership of the firearm. To establish ownership of an object, one might need a receipt of transaction or statements indicating ownership. None of that was present in Joe’s case.  To establish control, there would have to be evidence showing Joe’s ability to control the gun or , at the least, the person using the gun. With none of these criteria being met, and no prejudice in the appellate court due to Joe’s status as a gang member, the Court of Appeal found that the prosecution did not meet its burden of proof for conviction.

Many people, even lawyers and judges,  do not truly understand the difference between actual possession, constructive possession, and what it takes to be guilty of one or the other.  However, the distinction is important. The experienced and  aggressive defense attorney knows the difference and will make a difference during negotiations and at trial.


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