California Court Reverses Felon in Possession of a Firearm Conviction For Defendant With a Flare Gun

Should a flare gun qualify as a “firearm” for purposes of a criminal statute criminalizing possession of a firearm by a felon? That was the question addressed by the Court of Appeal, Sixth District, California, in its recent opinion in People v. Gomez, 2025 WL 1024681 (Ca. App. 6th 2025).

In Gomez, police recovered a flare gun from a small storage space connected with the defendant’s apartment.

An officer testified that he personally examined the flare gun, that it appeared to be in working order, and that it was capable of firing. The officer testified that the flare gun had an intact frame or receiver, and that it was designed to expel a projectile through the barrel using the force of an explosion or some other form of combustion. On cross-examination, defense counsel asked whether “a flare gun is a firearm,” and the officer responded, “Per the Penal Code definition, yes.” The police did not find any flares for the gun. The prosecution did not introduce the flare gun or any photographs of it into evidence.

The defendant was convicted of being a felon in possession of a firearm. California law defines a “firearm” under the applicable statutory section as “a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion.” In reversing this conviction, the appellate court ruled as follows:

We are unaware of any applicable statute defining “weapon,” and the parties do not cite any. We therefore presume the Legislature intended for it to have its “ordinary meaning.”…Dictionary definitions of “weapon” include: “An instrument used or designed to be used to injure or kill someone,” (Black’s Law Dict. (12th ed. 2024)); “1: something (such as a club, knife, or gun) used to injure, defeat, or destroy; 2: a means of contending against another,” (Merriam-Webster Online Dict. <https://www.merriam-webster.com/dictionary/weapon> [as of Apr. 7, 2025], archived at: <https://perma.cc/66SV-9NGR>); and, “An instrument of attack or defense in combat, as a gun, missile, or sword,” (American Heritage Dict. (5th ed. 2011) p. 1961). The Attorney General points to no evidence in the record that would reasonably support an inference the flare gun in Gomez’s possession was used or designed to injure, kill, defeat, destroy, attack or defend against an attack in combat, or contend against any person.

As a general matter, flare guns are designed for use by boat operators for emergency purposes. “A flare gun is an emergency signalling device employed predominantly aboard boats to expedite rescue efforts.”…“The purpose of the device is to enable boat operators to send visual distress signals to expedite rescue efforts. Devices suited for such a purpose, including hand-held red flare distress signals, are required by the United States Coast Guard on certain classes of boats.”…Federal regulations set forth specifications for flare guns usable for such purposes….

Courts from several other jurisdictions have held that flare guns do not constitute “weapons” under the ordinary meaning of that word….

The Attorney General cites cases from another jurisdiction holding flare guns are firearms, but these cases rely on a state law definition of “firearm” that does not refer to the device being designed to be used as a weapon….

We need not decide whether flare guns as a general matter are “weapons” or designed to be used as weapons under the ordinary definition of the word. The question here is narrower: whether the evidence supported a finding that the flare gun in Gomez’s possession was a firearm within the meaning of section 29800, subdivision (a)(1), and section 16520, subdivisions (a) and (b)—including a finding that the device was designed to be used as a weapon.

The Attorney General correctly points out that, under the substantial evidence standard, “We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence….”…But such deductions must be based on “evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt….

Neither the flare gun nor any photographs of it were in evidence. The record establishes only that the flare gun was capable of firing; that it was designed to expel a projectile through the barrel using the force of an explosion or some other form of combustion; and that it had an intact frame or receiver. The prosecution did not present any evidence that would reasonably support an inference the flare gun was designed to be used as a weapon. It is relevant to our analysis that multiple courts from other jurisdictions have concluded flare guns as a general matter do not constitute “weapons” within the ordinary meaning of that word. Absent evidence showing otherwise, we cannot conclude a reasonable factfinder could infer beyond a reasonable doubt that the flare gun in this case was designed to be used as a weapon.

For the reasons above, we conclude the evidence was insufficient to support Gomez’s conviction on count 5 for possession of a firearm by a felon under 29800, subdivision (a)(1). We reverse the judgment, vacate the conviction on count 5, and remand the matter for resentencing.

-CM