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March 30, 2026 Get Citation Alerts Download PDF Add Note

People v. Newt

California Court of Appeal

• Citations: None known

• Docket Number: A169899

• Opinion

• Authorities (5)

• Cited By (0)

• Summaries (0)

• Similar Cases (25.1K)

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Combined Opinion

Filed 3/30/26
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent, A169899

v. (Contra Costa County
ROBERT ANTOINE-DESHAWN Super. Ct. No.
NEWT, 042300101)
Defendant and Appellant.

INTRODUCTION
Defendant Robert Antoine-Deshawn Newt appeals his felony conviction
of receiving a large-capacity magazine (Pen. Code, § 32310, subd. (a)). 1 He
advances three claims on appeal: no substantial evidence supports the
conviction; the jury was erroneously instructed on the crime; and the statute
is unconstitutional.
His first two claims turn on the statute’s use of the terms “receives”
and “possesses.” 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 such crime is
punishable only as a misdemeanor or infraction. (§ 32310, subd. (c).)

All further statutory references are to the Penal Code unless
1

otherwise indicated.

1
Defendant acknowledges the prosecution presented evidence that he
“possessed” a large-capacity magazine—namely, 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. However, he maintains the prosecution presented no evidence beyond
mere “possession” and therefore his conviction for felony “receiving” the large-
capacity magazine cannot stand. He relatedly argues the jury was not
properly instructed on the distinction between “receiving” and “possessing”
such a magazine.
The Attorney General does not dispute that section 32310, subdivision
(a) subjects a person who “receives” a large-capacity magazine to punishment
as a felony or misdemeanor, whereas subdivision (c) subjects a person who
“possesses” such a magazine to punishment as a misdemeanor or infraction.
Rather, the Attorney General urges there is sufficient evidence supporting
defendant’s conviction of “receiving” a large-capacity magazine.
As both parties seemingly agree, and as we shall explain, section 32310
does, indeed, draw a distinction between “receiving” and “possessing” a high-
capacity magazine. We further agree with defendant that the record here
supports only a conviction for “possessing” a large-capacity magazine under
section 32310, subdivision (c). We therefore need not, and do not, reach his
claim of instructional error or his claim section 32310 is unconstitutional.
DISCUSSION2
“Receiving” and “Possessing” A High-Capacity Magazine
Section 32310 was added to the Penal Code in 2010 as part of a
sweeping reorganization of a host of California Penal Code statutes.

2 Because the issues pertinent to our disposition largely present
questions of law, we dispense with an initial overview of the case and discuss

2
(Nonsubstantive Reorganization of Deadly Weapon Statutes (June 2009)
38 Cal. Law Revision Com. Rep. (2009) pp. 897–898
https://clrc.ca.gov/pub/Printed-Reports/Pub233.pdf [as of Mar. 30, 2026].)
The new statute became effective January 1, 2012 (Stats. 2010, ch. 711, § 6,
see Legis. Counsel’s Dig., Sen. Bill No. 1080 (2009–2010 Reg. Sess.)) 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.” (Italics added.)

Notably, the statute did not include any person who “receives” a high-
capacity magazine. Rather, 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. (Stats. 2010, ch. 711, § 6, see Legis. Counsel’s
Dig., Sen. Bill No. 1080 (2009–2010 Reg. Sess.).)
The following year, the statute was, for purposes of this case, amended
in two significant respects. (Stats. 2013, ch. 728, § 1, see Legis. Counsel’s
Dig., Assem. Bill No. 48 (2013–2014 Reg. Sess.).) The original statutory
language was placed in a new subdivision, subdivision (a), and the list of
persons subject to prosecution under that subdivision was expanded to
include “any person . . . who . . . buys, or receives” a high-capacity magazine.

pertinent facts and procedural history in connection with our discussion of
the issues raised on appeal.

3
(Stats. 2013, ch. 728, § 1, italics added.) The amending legislation also added
a new subdivision, subdivision (b), defining the term “ ‘manufacturing’ ” of a
high-capacity magazine. (Ibid.) The amended statute became effective
January 1, 2014, and read:
“(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, 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, . . .
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.” (Italics added.)

Thus, the statute now reached persons on both sides of a high-capacity
magazine transfer. It reached those on the transmitting side, i.e., those “who
manufacture[] or cause[] to be manufactured, import[] into the state, keep[]
for sale, or offer[] or expose[] for sale, or who give[]” a high-capacity
magazine, as well as those on the receiving side, i.e., those who “buy[], or
receive[]” such a magazine. (Stats. 2013, ch. 728, § 1.) And regardless of
which side of the transaction the person was on, their conduct was
punishable as a felony or a misdemeanor.
In 2016, the statute was amended by both statute and initiative to its
present form. (Stats. 2016, ch. 58, § 1, see Legis. Counsel’s Dig., Sen. Bill
No. 1446 (2015–2016 Reg. Sess.) eff. Jan. 1, 2017; Initiative Measure (Prop.
63, § 6.1, approved Nov. 8, 2016, eff. Nov. 9, 2016.) The most significant of
the amendments for purposes of this case was the addition of a new

4
subdivision making “possession” of a high-capacity magazine a misdemeanor
or infraction. Thus, 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), italics added.)

“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. . . .)

5
‘ “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. . . .)
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; People
v. Valenzuela (2019) 7 Cal.5th 415, 423. . . .)” (People v. Guzman (2025)
115 Cal.App.5th 464, 476 (Guzman).)
“If the statute’s language is unambiguous then its plain meaning
controls. (People v. Scott (2014) 58 Cal.4th 1415, 1421. . . .) 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.)
Given the statutory language we have just quoted, and the chronology
in which it was enacted, it is readily apparent the Legislature knowingly
chose to use different terminology in subdivisions (a) and (c) of section 32310.
Subdivision (a), in which the original substantive language of the statute is
ensconced, 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 generally must presume that when the
Legislature chooses to use differing terms in the same statutory scheme, the
terms have different meanings. (See People v. Smith (2024) 100 Cal.App.5th
741, 760 (Smith) [“ ‘ “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.].)

6
Thus, were we considering the terms “receives” and “possesses”
generally and outside the statutory context we are considering here, we
might be hard pressed to explain how the two terms differ in any material
way, as it could be said any person who “possesses” an item must, at some
point, have “received” it. However, we must consider these terms both in
their immediate context, as well as the overall statutory scheme of which
they are a part. (See Smith, supra, 100 Cal.App.5th at p. 757 [“[b]ecause
‘words used in a statute are not considered in isolation,’ we construe the
language of a statute ‘in context,’ ” quoting Busker v. Wabtec Corp. (2021)
11 Cal.5th 1147, 1158].)
When so considered, it is apparent 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.
As we have recited, section 32310 initially criminalized only the
conduct of those persons who were on the manufacturing or transmitting side
of a high-capacity magazine transaction—that is, any 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, any large-capacity
magazine.” (Stats. 2010, ch. 711, § 6, see Legis. Counsel’s Dig., Sen. Bill
No. 1080 (2009–2010 Reg. Sess.).) The Legislature subsequently amended
this list to also include any person who “buys, or receives” a large-capacity
magazine. (Stats. 2013, ch. 728, § 1, see Legis. Counsel’s Dig., Assem. Bill
No. 48 (2013–2014 Reg. Sess.).) Thus, as of 2014, section 32310, subdivision
(a) criminalized the conduct of anyone involved in the production or transfer

7
of a high-capacity magazine—regardless of which side of the exchange they
were on.
Several years later, through an initiative measure and further
legislative action, the scope of the statute was enlarged with the addition of
the language that now appears in section 32310, subdivision (c) and
criminalizes the conduct of any person “who possesses” a high-capacity
magazine. 3 (Stats. 2016, ch. 58, § 1, see Legis. Counsel’s Dig., Sen. Bill No.
1446 (2015–2016 Reg. Sess.).) Unlike section 32310, subdivision (a),
subdivision (c) does not list any other persons engaging in any other conduct
in connection with a high-capacity magazine. Thus, it includes no list of
persons engaged in the manufacturing or transfer of a high-capacity
magazine. Rather, section 32310, subdivision (c) refers only to a person who
engages in a singular act, i.e., a person who “possesses” a large-capacity
magazine. And whereas any of the conduct enumerated and criminalized by
section 32310, subdivision (a) was, and continues to be, punishable as a
felony or misdemeanor, the conduct criminalized by subdivision (c) was, and
continues to be, punishable as a misdemeanor or an infraction. Thus, the
Legislature plainly considered “possession” of a high-capacity magazine,
alone, to be different from, and less serious than, any of the manufacturing or
transactional conduct criminalized under section 32310, subdivision (a).
The legislative history, and particularly the history of the 2016
amendments adding the language now appearing in subdivision (c),
reinforces what is apparent from the language and structure of the statute.
By the time section 32310 was amended in 2016, the list of persons subject to

3 At the time of enactment, the new language was placed in section
32310, subdivision (b). The definition of “ ‘manufacture,’ ” then in subdivision
(b), was relocated to a new subdivision, subdivision (d). (Stats. 2016, ch. 58,
§ 1.)

8
prosecution under subdivision (a) had, as we have discussed, been expanded
to include “any person . . . who . . . buys, or receives” a large-capacity
magazine. (Stats. 2013, ch. 728, § 1, italics added.) Yet, despite the inclusion
in subdivision (a) of any person who “receives” a high-capacity magazine, the
legislative history of the 2016 amendments is replete with statements that,
at that time, 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. (E.g., Sen. Rules Com., Off. of Sen. Floor Analyses, 3rd
reading analysis of Sen. Bill No. 1446 (2015–2016 Reg. Sess.) as amended
Mar. 28, 2016, p. 2 [“This bill: 1) Provides that, except as specified,
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. . . .”], id., p. 4 [“Since January 1, 2000, California has
banned the importation, manufacturer or sale of high capacity magazines. . . .
This bill imposes criminal penalties for possession of high capacity magazines
in California.]; Sen. Com. on Public Safety, Rep. on Sen. Bill No. 1446 (2015–
2016 Reg. Sess.) as amended Mar. 28, 2016, p. 1 [“The purpose of this bill is
to, commencing July 1, 2017, prohibit the possession of large-capacity
magazines, as specified.”].)
The seeming anomaly between these and other like statements in the
committee reports and bill analyses of the 2016 amendments, and the by-
then amended language of subdivision (a) to include any person who
“receives” a high-capacity magazine, is explainable given the timing
limitation of the reach of subdivision (a). The Public Safety Committee
Report, for example, described existing law as follows: “Existing law provides
that, except as specified, commencing January 1, 2000, any person in this
state who manufacturers or causes to be manufactured, imports into the

9
state, keeps for sale, or offers or exposes for sale, or who gives, or lends, any
large-capacity magazine is punishable,” as a misdemeanor or felony.” (Sen.
Com. on Public Safety, Rep. on Sen. Bill No. 1446 (2015–2016 Reg. Sess.) as
amended Mar. 28, 2016, p. 2, boldface added.) The report then stated the
new legislation would provide “that, except as specified, commencing July 1,
2017, any person in this state who possess any large-capacity magazine,
regardless of the date the magazine was acquired, is guilty of an
infraction. . . .” (Ibid.) In other words, commencing July 1, 2017, any person
who had come into possession of a high-capacity magazine when it was lawful
to do so (e.g., prior to the amendment to subdivision (a) to include any person
who “buys, or receives” such a magazine) would be subject to prosecution
under section 32310, subdivision (c) if they continued to retain possession of
the magazine. 4
We also observe that, as introduced, the 2016 legislation eliminated the
words “buys, or receives” from section 32310, subdivision (a), while adding
the new prohibition against “possession” of any large-capacity magazine as of
July 1, 2017, regardless of when it was acquired. (Sen. Bill No. 1446 (2015–
2016 Reg. Sess.) as introduced Feb. 19, 2016, § 3.) Had the language “buys,
or receives” remained excluded from section 32310, subdivision (a), one could
conclude the Legislature considered these terms embraced by the new term

4 We note that the Senate Rules Committee Report erroneously stated
“Existing law: [¶] . . . [¶] Provides that, except as specified, 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 imprisonment for 16
months, two or three years pursuant to Penal Code Section 1170(h).” (Sen.
Rules Com., Rep. on Sen. Bill No. 1446 (2015–2016 Reg. Sess.) as amended
Mar. 28, 2016, pp. 1–2.) The report did not, in other words, state existing law
also included “any person who buys or receives” a large-capacity magazine.

10
“possesses” in subdivision (c), and to have viewed receiving and possessing
such a magazine to be wrongful conduct of equal consequence and warranting
punishment only as an infraction or misdemeanor under subdivision (c).
But in the first round of amendments to the proposed legislation, the
reference to any person who “buys, or receives” a large-capacity magazine
was restored to the list of persons included in subdivision (a), and subject to
punishment as a felony or misdemeanor. (Sen. Bill No. 1446 (2015–2016 Reg.
Sess.) as amended Mar. 28, 2016, § 1.) It is therefore clear 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)).
We need not in this case flesh out the extent of the evidentiary showing
required to support a conviction for “receiving” a high-capacity magazine
under section 32310, subdivision (a). It is enough for purposes of this case to
say there must be some evidence beyond that the defendant possessed such a
magazine. That is, there must be some evidence as to the provenance of the
high-capacity magazine—e.g., that the defendant bought or received it after
January 1, 2000, from a person who manufactured the magazine, imported it
into the state, kept the magazine for sale, offered it for sale, or who gave or
lent it to him. There is no such evidence in the record here. In short, there is
no evidence as to how or when defendant came to possess the high-capacity
magazine.
The Attorney General maintains there is sufficient evidence to support
the conviction, asserting “[a]n item is received when a person takes

11
possession and control of it,” citing CALCRIM No. 1750, which defines the
term “received” for purposes of the crime of receiving stolen property.
However, as we have discussed at length, that is not how the Legislature
views the distinction between “receiving” and “possessing” a large-capacity
magazine for purposes of section 32310, subdivisions (a) and (c).
The Attorney General next asserts the “extreme measures” defendant
took to avoid apprehension (leading officers on a high-speed chase and then
attempting to flee by foot) “demonstrates his consciousness of guilt of a more
serious crime than mere possession of a large-capacity magazine.” The
defendant’s “consciousness” has no bearing on whether there was evidence
that he “receive[d]” the high-capacity magazine as that term is used in
section 32310, subdivision (a), as opposed to merely “possesse[d]” the
magazine as that term is used in subdivision (c). Indeed, defendant
committed numerous crimes at the time and could have had a collective
consciousness he would be facing some kind of felony sentence. In any event,
it is also sheer speculation to ponder what defendant’s consciousness might
have been.
Lastly, the Attorney General asserts there was “sufficient evidence that
[defendant] received the magazine within the relevant time period.” While it
may be true the limitations period for the crime had not run, that, again, has
no bearing on whether he “receive[d]” the high-capacity magazine as that
term is used in section 32310, subdivision (a), or whether he simply
“possesse[d]” it as that term is used in subdivision (c). The same is true for
the Attorney General’s assertion that there was evidence that in July 2022
defendant purchased the car in which he tried to evade a traffic stop. He
posits the jury “could reasonably have concluded that at some point after that
purchase, [defendant] came into possession or control of the large-capacity

12
magazine and placed it inside the vehicle.” Again, this speculative argument
has no bearing on whether defendant “receive[d]” the high-capacity magazine
as that term is used in section 32310, subdivision (a), or whether he simply
“possesse[d]” it as that term is used in subdivision (c).
We therefore reverse defendant’s conviction of “receiving” a high-
capacity magazine under section 32310, subdivision (a) for lack of substantial
evidence to support it. Accordingly, we need not, and do not, reach
defendant’s claim of instructional error or his claim section 32310 is
unconstitutional.
DISPOSITION
Defendant’s felony conviction of receiving a large-capacity magazine
(Pen. Code, § 32310, subd. (a)) is reversed. In all other respects, the
judgment is affirmed. The clerk of the superior court is directed to prepare
an amended abstract of judgment, and once prepared, the clerk is directed to
forward a copy of the amended abstract of judgment to the Department of
Corrections and Rehabilitation.

13

---

Banke, J.

We concur:

---

Humes, P.J.

---

Langhorne Wilson, J.

A169899, People v. Newt

14
Trial Court: Contra Costa County Superior Court

Trial Judge: Hon. Rebecca C. Hardie

Counsel:

Rob Bonta, Attorney General, Lance E. Winters and Jeffrey M. Laurence,
Assistant Attorneys General, Seth K. Schalt and Arthur P. Beever, Deputy
Attorneys General for Plaintiff and Respondent

Nathaniel Miller, under appointment by the Court of Appeal, for Defendant
and Appellant.

15