In California, it is illegal for any person… to manufacture, or cause to be manufactured, import into California, keep for sale, or offer or expose for sale, or give, lend, buy, or receive any large-capacity magazine (PC 31310(a) Abbrev.).
Manufacturing of high-capacity magazines includes both fabricating a magazine and assembling a magazine from a combination of parts, including, but not limited to, the body, spring, follower, and floor plate or end plate, to be a fully functioning large-capacity magazine (PC 31310(b) Abbrev.).
Ten Round Limit: A high-capacity magazine includes any self-loading firearm ammunition device that holds more than ten (10) cartridges. For possession of ammunition magazines that have been converted to hold more than ten (10) rounds, the defendant may be charged with possession of a conversion kit (PC 32311), and PC 32310.
Note: A person who owned a high-capacity magazine before July 1, 2017, must remove the large-capacity magazine from the state of California, sell the large capacity magazine to a licensed firearm dealer, or surrender the large capacity magazine to a law enforcement agency (PC 32310(d) Abbrev.). In other words, there is not exception to California’s new restriction on high-capacity magazines, even if the defendant purchased the ammunition magazine prior to July of 2017.
Example I: In California, David gives Goliath a firearm magazine that holds twenty (20) rounds of ammunition. Neither David nor Goliath is a licensed firearm dealer, or a law enforcement agency. Result: Both David and Goliath may be charged with PC 32310(a).
Example II: In California, David possesses a large-capacity magazine that he bought in 2010. At the time of David’s purchase, the magazine was not considered a “high-capacity magazine.” David decides to keep the magazine because he believes California has “grandfathered” the law to allow him to keep his firearm magazine: Result: David may be charged with PC 32310(a).
Example III: In California, David converts his ammunition magazine from a ten (10) round magazine to a (16) round magazine. David is unaware of the new law in California that restricts high-capacity magazines: Result: David may be charged with both PC 32310 and PC 32311 (poss. of high-capacity magazine conversion kit). This is true even though David is unaware of California’s new PC 32310(a) law.
PC 32310 Punishment
High-capacity magazine possession, sale, or manufacture is classified as a wobbler offense. A wobbler offense is a crime that may be charged either as a felony, or alternatively as a misdemeanor.
Note: Possession of a high-capacity magazine, which is continuously possessed from before the date of California’s new law (July 1, 2017), is usually charged as an infraction.
Felony PC 32310: If the defendant is convicted of felony PC 32310(a)-F, the defendant may suffer a jail sentence of up to sixteen (16) months, two (2) years, or three (3) years, depending on the facts and circumstances of the case. A probation sentence, with or without jail time might also be possible in felony PC 32310 cases (See Probation Sentence below).
Misdemeanor PC 32310: If the defendant is convicted of misdemeanor PC 32310(a)-M, the defendant may suffer a jail sentence of up to one (1) year, depending on the facts and circumstances of the case. A probation sentence, with or without jail time might also be possible in misdemeanor PC 32310 cases (See Probation Sentence below).
Note: Whether the defendant is charged with a felony or misdemeanor violation of possession of high-capacity magazines depends on many factors, including the sophistication level of the alleged offense, the defendant’s criminal history, the terms of any plea bargain between the district attorney (or court) and the defendant, and more. Also, a defendant who is initially charged with a felony offense of PC 32310 might have that felony classification reduced to a misdemeanor through a PC 17(b) motion (See PC 32310 Defense below).
Suspended Jail Sentence: A defendant is ordered to serve a jail sentence after a conviction for PC 32310 may have that jail sentence “suspended” (not served unless and until the defendant violates a condition of her out of jail sentence). The defendant might also be allowed to “split” her felony jail sentence for PC 32310 violations (jail sentence that is served partially in jail and partially out of jail on work release or house arrest). For more information, see PC 1170(h) Sentencing.
Note: Any jail sentence associated with a conviction for possession, sale, or manufacture of, a high-capacity magazine, is served in a local county jail, as opposed to a California state prison. This is true even if the defendant is ordered to serve more than a year in jail after her conviction.
Probation Sentence: A probation sentence is an alternative to a jail sentence. A probation sentence is allowed in some PC 32310 cases where the interest of justice allows for a non-jail sentence. Essentially, a probation sentence is a period of supervision where the defendant is ordered to comply with “terms of probation.”
Terms of Probation: If granted, a probation sentence for a PC 32310 conviction includes an order to remain free from new arrest during the period of probation (misdemeanor and felony crimes), an order to pay restitution, court fines and fees, and an order to not leave the state of California without prior consent (felony cases). Other conditions usually apply. For more information, see Misdemeanor and Felony Probation.
Note: A probation sentence after a conviction of large-capacity magazines is not guaranteed. Whether the defendant receives a probation sentence after a conviction for penal code 32310, depends on the facts and circumstances of the case, the terms of any negotiated plea bargain between the district attorney and the defendant, and the defendant’s criminal history, if any.
Work Release Alternative: A probation sentence related to either a felony or misdemeanor violation of PC 32310 may include a jail sentence, but that jail sentence is generally much shorter than the jail sentence that otherwise would have been ordered if the defendant had not been granted probation. Also, most “jail sentences” may be served alternatively on work release or house arrest when the jail sentence is a term of probation. For more information, see Work Release & House Arrest.
Additional Punishment: In addition to the punishment of jail or possible probation after a penal code 32310 violation, the defendant may suffer any of the following additional direct and indirect punishment: court fines and fees, criminal protective orders (CPO), military service consequences, immigration consequences (i.e., deportation, denial of citizenship, denial of reentry into the United States), professional licensing consequences, civil lawsuits, restitution, loss of firearm rights, and much more.
PC 32310 Defenses
Every PC 32310 case is different; therefore, the defense to a particular case requires a unique approach and analysis. With that in mind, the most common defenses to an allegation of possession of large-capacity mags includes insufficient evidence of possession (see below), duress, coerced confession, illegal search and seizure, mistake of fact, jury nullification, government entrapment, and more.
Insufficient Evidence of Possession: The term “possession” refers to several scenarios of the right to control an object. Actual possession of large-capacity magazines means the defendant is in direct control of the mag (holding the mag or very close to the mag). Constructive possession of large-capacity magazines means the defendant can control the magazine despite the magazine not being in the immediate or actual possession of the defendant. Both actual and constructive possession of a magazine qualify as possession per PC 32310. However, sometimes, a person has such “fleeting” possession of an object, that he or she cannot truly assert control over the object, and this may serve as a defense.
Example: At David’s house in California, David hands Goliath a large capacity ammunition magazine. Goliath is not aware of what he is holding as he has never fired a gun in his life, David did not tell Goliath what the object was, and Goliath is not knowledgeable about gun parts. While Goliath is holding the magazine (gun clip), the police raid David’s house and find Goliath holding the large-capacity magazine. Result: David may be charged with PC 32310, but Goliath will likely have a defense of “fleeting possession,” or mistake of fact (mistaken as to what he possessed).
PC 17(b): A defendant who is charged with a felony violation of penal code 32310 might request that the felony classification be changed to a misdemeanor classification. This usually occurs, if at all, after the preliminary hearing, or upon a negotiated settlement between the parties (i.e., plea bargain). Whether the defendant is successful in his application under PC 17(b) depends on many factors, including the facts and circumstances of the case, the defendant’s criminal history, and more. For more information, see Penal Code 17(b).
Diversion: A diversion sentence, also called “court diversion,” or “judicial diversion,” might be possible in some PC 32310 cases. Essentially, a diversion sentence is a probation-like sentence wherein the defendant is allowed to circumvent the prosecution process. If the defendant is successful on diversion, then his case is dismissed as though he was not prosecuted in the first instance. For more information, see Judicial Diversion.
Post-Conviction Options: After a conviction for PC 32310(a), the defendant might be entitled to certain post-conviction options, depending on the circumstances. These include the right to withdraw a guilty or no contest plea, the right to appeal the criminal conviction, the right to petition the court to reduce or modify the probation sentence, the right to expunge the criminal conviction (PC 1203.3), the right to restore firearm rights (limited circumstances), and more.
Seal & Destroy PC 32310 Arrest: In situations where the defendant is arrested, but she is never charged with a PC 32310 offense, or where the defendant is arrested and tried, but the defendant is acquitted of the offense or the district attorney dismisses the offense for some reason, then the defendant may seek to seal and destroy his criminal arrest record in some situations. For more information, see PC 851 Petitions, or contact our criminal defense attorneys for a free consultation.
For more information on the crime of possession of high-capacity magazines (large-capacity), or California penal code section 32310, contact our office today. Our team of award-winning and highly experienced defense attorneys have successfully handled hundreds of misdemeanor and felony crimes in the Inland Empire, including the cities and criminal courts of Ontario, Redlands, Yucaipa, Victorville, San Bernardino, Riverside, Upland, Fontana, & More. Call today!
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