Penal Code section 32310 distinguishes between “receiving” and “possessing” a large-capacity magazine

People v. Newt (Cal. Ct. App., Mar. 30, 2026, No. A169899) 2026 WL 861690, at *1–6

Summary : Newt appealed his felony conviction of receiving a large-capacity magazine (Pen. Code, § 32310, subd. (a)). He claimed that no substantial evidence supports the conviction; the jury was erroneously instructed on the crime; and the statute is unconstitutional.

The statute’s use of the terms “receives” and “possesses” are at issue here.  Subdivision (a) of section 32310 provides that any person who “receives” a large-capacity magazine commits a crime punishable as a felony or misdemeanor. Subdivision (c) provides that any person who “possesses” a large-capacity magazine also commits a crime, but that crime is punishable only as a misdemeanor or infraction. (§ 32310, subd. (c).) Newt acknowledges the prosecution presented evidence that he “possessed” a large-capacity magazine—that an assault rifle with a large-capacity magazine was found on the front seat of the car he was driving while he attempted to avoid a traffic stop and from which he subsequently fled. But he asserts the prosecution presented no evidence beyond mere “possession” and therefore his conviction for felony “receiving” the large-capacity magazine cannot stand. He argues the jury was not properly instructed on the distinction between “receiving” and “possessing” such a magazine.

Section 32310 draws a distinction between “receiving” and “possessing” a high-capacity magazine. The record here supports only a conviction for “possessing” a large-capacity magazine under section 32310, subdivision (c). The court did not reach his claim of instructional error or his claim that section 32310 is unconstitutional.

“Receiving” and “Possessing” A High-Capacity Magazine

Section 32310 was added to the Penal Code in 2010 and became effective January 1, 2012 and stated as follows:

“Except as provided in Article 2 (commencing with Section 32400) of this chapter and in Chapter 1 (commencing with Section 17700) of Division 2 of Title 2, commencing January 1, 2000, any person in this state who manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, or lends, any large-capacity magazine is punishable by imprisonment in a county jail not exceeding one year or in the state prison.”

The statute did not include any person who “receives” a high-capacity magazine. It included only persons on the production or transmitting side of a high-capacity magazine transaction—namely, a person who “manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, or lends” a large-capacity magazine—and made the crime a wobbler, allowing for punishment as a felony or misdemeanor.

In 2016, the statute was amended to its present form. A new subdivision was added making “possession” of a high-capacity magazine a misdemeanor or infraction. The  statute now provides:

“(a) Except as provided in Article 2 (commencing with Section 32400) of this chapter and in Chapter 1 (commencing with Section 17700) of Division 2 of Title 2, any person in this state who manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, buys, or receives any large-capacity magazine is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170.

“(b) For purposes of this section, ‘manufacturing’ 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.

“(c) Except as provided in Article 2 (commencing with Section 32400) of this chapter and in Chapter 1 (commencing with Section 17700) of Division 2 of Title 2, commencing July 1, 2017, any person in this state who possesses any large-capacity magazine, regardless of the date the magazine was acquired, is guilty of an infraction punishable by a fine not to exceed one hundred dollars ($100) per large-capacity magazine, or is guilty of a misdemeanor punishable by a fine not to exceed one hundred dollars ($100) per large-capacity magazine, by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.

“(d) Any person who may not lawfully possess a large-capacity magazine commencing July 1, 2017 shall, prior to July 1, 2017:

(1) Remove the large-capacity magazine from the state;

(2) Sell the large-capacity magazine to a licensed firearms dealer; or

(3) Surrender the large-capacity magazine to a law enforcement agency for destruction.” (§ 32310, subds. (a)–(d).)

“Our fundamental task in construing statutes is to interpret them in a way that gives effect to the Legislature’s intent. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 837, 189 Cal.Rptr.3d 824, 352 P.3d 391….) ‘ “Because the statutory language is generally the most reliable indicator of that intent, we look first at the words themselves, giving them their usual and ordinary meaning.” ’ (People v. Ruiz (2018) 4 Cal.5th 1100, 1105, 232 Cal.Rptr.3d 714, 417 P.3d 191….) We consider the statutory language in the context of the statute as a whole and its overall scheme. (People v. Lewis [(2021)] 11 Cal.5th [952,] 961, 281 Cal.Rptr.3d 521, 491 P.3d 309; People v. Valenzuela (2019) 7 Cal.5th 415, 423, 247 Cal.Rptr.3d 651, 441 P.3d 896….)” (People v. Guzman (2025) 115 Cal.App.5th 464, 476, 338 Cal.Rptr.3d 205 (Guzman).)

“If the statute’s language is unambiguous then its plain meaning controls. (People v. Scott (2014) 58 Cal.4th 1415, 1421, 171 Cal.Rptr.3d 638, 324 P.3d 827….) If the statute’s language is unclear, ambiguous, or susceptible to more than one reasonable interpretation, we may look at extrinsic sources, including legislative history, as a guide to construing the statute. (Ibid.)” (Guzman, supra, 115 Cal.App.5th at p. 476, 338 Cal.Rptr.3d 205.)

The Legislature knowingly chose to use different terminology in subdivisions (a) and (c) of section 32310. Subdivision (a),  applies to any person who “receives” a high-capacity magazine, whereas subdivision (c), enacted several years later, applies to any person who “possesses” such a magazine. We must presume that when the Legislature chooses to use differing terms in the same statutory scheme, the terms have different meanings.  “Ordinarily, where the Legislature uses a different word or phrase in one part of a statute than it does in other sections or in a similar statute concerning a related subject, it must be presumed that the Legislature intended a different meaning.” ’ ” Quoting Roy v. Superior Court (2011) 198 Cal.App.4th 1337, 1352, 131 Cal.Rptr.3d 536.].)

Clearly, section 32310, subdivision (a) was originally aimed, and remains aimed, at those who participate in the manufacturing of, or some kind of exchange involving, high-capacity magazines, whereas subdivision (c) was aimed, and remains aimed, at simpler conduct the Legislature considers less culpable, i.e., mere possession.

By the time section 32310 was amended in 2016, the list of persons subject to prosecution under subdivision (a) had been expanded to include “any person … who … buys, or receives” a large-capacity magazine. (Stats. 2013, ch. 728, § 1.) The statute did not apply to persons who “possessed” such magazines and one of the purposes of the amendments was to make “possession” a crime.

The Legislature understood “receives” as used in section 32310, subdivision (a) and “possesses” as used in subdivision (c) to mean different kinds of conduct and considered “receiving” a high-capacity magazine (prohibited by § 32310, subd. (a)) to refer to conduct more egregious than, and thus subject to stiffer punishment than, merely “possessing” such a magazine (prohibited by § 32310, subd. (c)).

The court reversed Newt’s conviction of “receiving” a high-capacity magazine under section 32310, subdivision (a) for lack of substantial evidence to support it.

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