Duran

The People ask that we become legal obstetricians and help deliver a newborn crime of “attempted possession of a firearm by a felon” (see Pen. Code §§ 664, 12021). We are cited to no published California case where a defendant was convicted of such a crime. We need not and do not speculate whether there can be such a crime based on a theoretical set of facts. As we shall explain, given the facts of the instant case, i.e. submitting a false application to a licensed gun dealer, crediting the People’s theory would result in the wrongful birth of a new crime. “ ‘Wise adjudication has its own time for ripening.’ [Citation.]” (People v. Schofield (2001) 90 Cal.App.4th 968, 972 [ 109 Cal.Rptr.2d 429 ].) We hold that a felon who submits a false application to purchase a firearm may not be prosecuted pursuant to the general attempt statute. (§ 664.) Instead, the felon may only be prosecuted pursuant to the special statute, section 12076, which expressly proscribes such false applications. (In re Williamson (1954) 43 Cal.2d 651, 654 [ 276 P.2d 593 ].)

Facts and Procedural History

On May 13, 2003, defendant went to a Big 5 Sporting Goods Store (Big 5) in Oxnard to purchase a…