Use of BB Gun Can Be Assault with a Deadly Weapon
Brown then pointed a black hand gun, a BB gun, at Castro and Calderon, who responded by diving down to the sidewalk. Brown then allegedly shot both Castro and Calderon from about five feet away. Castro received two welts in his back. Calderon was hit in his foot.The Point of This Article: A BB gun can be a deadly weapon if one is shot in the face, the appellate court ruled, so a charge of assault with a deadly weapon in this case was proper, especially because defendant was just five feet away from the victim.
Brown then sped off, but was later arrested. Police had received other reports of three earlier incidents involving a shooter from a white Cadillac the day prior. Brown was a member of the Black P-Stones gang.
Brown then appealed, arguing that he only committed simple assault and that the court committed prejudicial error by giving the jury a jury instruction which read:
The Second Appellate District, in People v. Quamie Brown (2012 DJDAR 14417), agreed with Brown that CALCRIM 875 improperly allowed the jury to convict Brown with assault with a deadly weapon because the definition was overbroad or, at least, ambiguous. The instruction allowed the jury to find that a BB gun was inherently dangerous even if it was not used in a way to cause death or great injury. Indeed, the court noted that neither Castro nor Calderon received medical attention for their injuries.“a deadly weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.”
The court of appeal also commented that a BB gun, while not inherently a weapon capable of causing death or serious bodily injury, can do so in certain circumstances, just as can a bottle or a pencil.
Lastly, the Second Appellate District responded to perhaps Brown’s best argument. Brown argued that under People v. Green (1980) 27 Cal.3d 1 and People v. Guiton (1993) 4 Cal. 4th 1116, because there is no basis to determine whether the jury relied upon legally incorrect theory, as even the court agreed that a BB gun is not an inherently dangerous weapon, his conviction must be reversed. The court responded that this type of error, although real in Brown’s case, was harmless because the evidence leaves no doubt that the conviction was proper. There was no reasonable doubt to the court, considering all the evidence, that Brown used the BB gun in a manner capable of inflicting or likely to inflict great bodily harm.
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