People v. Bartholomew D.

dropped the pizzas on the driveway and gave appellant his money. Appellant told the victim to leave. Just as the victim got to his car, appellant demanded his cell phone. The victim threw the phone to appellant and drove back to the pizzeria.

Before the victim arrived back at the pizzeria, the same caller who had placed the order telephoned the pizzeria again to say his order had not yet been delivered. The receptionist told him she would try to contact the deliveryman. She never did so because two minutes after she took the call saying the pizzas had not yet been delivered, the victim entered the pizzeria and said he had just had a gun shoved in his face. He and the receptionist contacted the police. Upon their arrival at the pizzeria, the police instructed the receptionist to telephone the number from which the order had been placed and say she was sending a free pizza. The receptionist spoke to the same caller who had placed the order. He directed her to have the pizza delivered to 435 West Merle Court instead of 415 West Merle Court.

The police went to 435 West Merle Court and rang the bell. Appellant’s mother answered the door and consented to a search of the house. In appellant’s bedroom, the police recovered a receipt for the pizzas that had been ordered for 415 West Merle Court. They also seized a black BB gun from the television stand in appellant’s bedroom. At trial, the victim was unable to identify the BB gun as the gun used in the robbery.

Appellant presented an alibi defense. He denied being the robber and denied owning a gun. He said the BB gun found in his bedroom belonged to a friend who was paying him to fix it. He acknowledged he had never before fixed a gun.

Proceedings

The juvenile court sustained the juvenile wardship petition (Welf. & Inst. Code § 602) following a contested hearing. It committed appellant to CYA for a maximum confinement of 6 years 10 months, less 38 days of custody credit, with commitment stayed pending placement review.

DISCUSSION

Appellant does not challenge the robbery finding, nor does he now claim that he did not use a BB gun during the commission of the robbery. He contends there is insufficient evidence to support the finding that the particular BB gun he used was a deadly or dangerous weapon, within the meaning of section 12022, subdivision (b).

In People v. Bums (1969) 270 Cal.App.2d 238 [ 75 Cal.Rptr. 688 ], the defendant was charged in the accusatory pleading with an arming enhancement under former section 3024. The jury found the defendant guilty of first degree robbery but found he was not armed with a deadly weapon in the commission of the offense, as required to prove the section 3024 enhancement. (B urns, supra, at pp. 253-254.) Burns concluded there was no inconsistency in the verdict. “At the time defendant was arrested a pellet gun was found in the car. [The victim] identified this gun as the robbery weapon. Accordingly, under the state of the evidence the jury could conclude that this gun was used in the robbery and that it was a dangerous weapon. Proof that the robber was armed with a gun that could be a dangerous weapon would support a conviction of robbery of the first degree. This is true even though it would not establish that he was armed with a ‘deadly weapon.’ ” (Id. at p. 254.)

In People v. Graham (1969) 71 Cal.2d 303 [ 78 Cal.Rptr. 217 , 455 P.2d 153 ], the defendant kicked the robbery victim, and the issue was whether a shoe was a dangerous weapon within the meaning of former section 211a. Citing People v. Raleigh (People v. Raleigh (1932) 128 Cal.App. 105 [ 16 P.2d 752 ]), Graham distinguished between two classes of “dangerous or deadly weapons” for purposes of the statute. “ ‘. . . There are, first, those instrumentalities which are weapons in the strict sense of the word, and, second, those instrumentalities which are not weapons in the strict sense of the word, but which may be used as such. The instrumentalities falling in the first class, such as guns, dirks and blackjacks, which are weapons in the strict sense of the word and are “dangerous or deadly” to others in the ordinary use for which they are designed, may be said as a matter of law to be “dangerous or deadly weapons.” This is true as the ordinary use for which they are designed establishes their character as such. The instrumentalities falling into the second class, such as ordinary razors, pocket-knives, hatpins, canes, hammers, hatchets and other sharp or heavy objects, which are not weapons in the strict sense of the word and are not “dangerous or deadly” to others in the ordinary use for which they are designed, may not be said as a matter of law to be “dangerous or deadly weapons.” When it appears, however, that an instrumentality other than one falling within the first class is capable of being used in a “dangerous or deadly” manner, and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require, we believe that its character as a “dangerous or deadly weapon” may be thus established, at least for the purposes of that occasion.’ [Citation.]” (Graham, supra, at pp. 327-328.)

Subsequent cases have relied on Sherman, Bums, and Graham in analyzing challenges to a section 12022, subdivision (b) enhancement. In People v. Montalvo (1981) 117 Cal.App.3d 790 [ 173 Cal.Rptr. 51 ], the jury found true the section 12022, subdivision (b) allegation that the defendant used a

dangerous weapon — a pellet gun — in a robbery. (Montalvo, supra, at pp. 792, 796.) Although it reversed on unrelated grounds, Montalvo rejected the defendant’s contention that his sentence was improperly enhanced. Based on the Bums and Sherman holdings that a pellet gun “is in fact a dangerous weapon,” Montalvo concluded, without further analysis, that a section 12022, subdivision (b) enhancement based on use of a pellet gun was proper. (Montalvo, supra, at p. 797.)

In People v. Schaefer (1993) 18 Cal.App.4th 950 [ 22 Cal.Rptr.2d 536 ], the defendant admitted a section 12022.5, subdivision (a) enhancement — use of a firearm — during a robbery, based on his use of a pellet gun. Schaefer agreed the enhancement could not stand because the Legislature subsequently removed “pellet gun” from the statutory definition of “firearm.” (Schaefer, supra, at p. 951.) Nevertheless, relying on Montalvo's holding that a pellet gun was a dangerous or deadly weapon under section 12022, subdivision (b), Schaefer concluded the defendant’s admission of the section 12022.5, subdivision (a) enhancement necessarily included an admission of a section 12022, subdivision (b) enhancement, and modified his conviction accordingly. (Schaefer, supra, at pp. 951, 952.)

In People v. Reid (1982) 133 Cal.App.3d 354 [ 184 Cal.Rptr. 186 ], the defendant used a toy gun, made of metal with a plastic grip, in a robbery. (Id. at p. 364.) He contended his section 12022, subdivision (b) enhancement should be stricken because there was no evidence he intended to use the toy gun as a club. (Reid, supra, at p. 364.) In resolving the issue, Reid applied the “dangerous or deadly weapon” distinction to section 12022, subdivision (b), that Graham, supra, 71 Cal.2d 303 had applied to former section 211a. It analyzed instrumentalities that are weapons in the strict sense of the word differently from instrumentalities that are not strictly weapons but are capable of use as such, when coupled with evidence the user intended that the instrumentality could be so used. It concluded a toy gun fell in the second category because it was “clear[ly]” not a weapon in the strict sense. (Reid, supra, at p. 367.) It struck the enhancement because, although the toy gun was capable of being used in a dangerous manner, i.e., as a club, there was insufficient evidence that the defendant intended to do so. (Ibid.)

Similarly, People v. Godwin (1996) 50 Cal.App.4th 1562 , 1574 [ 58 Cal.Rptr.2d 545 ], struck an enhancement in which the instrumentality used during a robbery was a starter pistol because there was insufficient evidence to support the finding. It observed that the capacity of a starter pistol to inflict injury is not a matter of common knowledge, and there was no evidence regarding the starter pistol’s capacities as a dangerous weapon, so as to be a dangerous weapon as a matter of law, i.e., a weapon in Graham's “strict sense of the word” category. (Godwin, supra, at p. 1574.) Nor was there

evidence that the defendant intended to use it as a bludgeon, although it could have been so used. (Id. at p. 1574.)

In In re Arturo H. (1996) 42 Cal.App.4th 1694 [ 51 Cal.Rptr.2d 5 ], the defendant was found to have possessed a pellet gun on school grounds, a violation of section 626.10, which specifically proscribes possession of “any instrument that expels a metallic projectile such as a BB or a pellet, through the force of air pressure, CO[2] pressure, or spring action . . .” Defendant argued the finding must be reversed because there was no evidence his gun was operable. He reasoned that by defining the prohibited instrumentality in functional terms, the statute referred only to operable pellet guns. Arturo H. disagreed. It first noted the many cases that have interpreted the laws prohibiting firearms as applying to inoperable as well operable firearms, given the underlying purpose of the Dangerous Weapons Control Law (§ 12000 et seq., including § 12022, subd. (b)) to deter the danger that derives not only from the weapon, but also from the defensive reaction of people to the weapon. (Arturo H., supra, at pp. 1697, 1698.) It then concluded that the same rationale applies to pellet guns, “which are reasonably perceived as dangerous weapons capable of inflicting serious injury.” (Arturo H., supra, 42 Cal.App.4th at p. 1698, citing Schaefer, supra, 18 Cal.App.4th 950 , Montalvo, supra, 117 Cal.App.3d 790 , and Sherman, supra, 251 Cal.App.2d 849 .)

Unlike Arturo H., we interpret here an enhancement statute that contains no definition of the “deadly or dangerous weapons[s]” which will trigger its application. The Dangerous Weapons Control Law (§ 12000 et seq.) defines BB guns for purposes of sections 12551 and 12552 (prohibiting the sale or furnishing of any BB device to minors), as “any instrument that expels a projectile, such as a BB or a pellet, . . . through the force of air pressure, gas pressure, or spring action, or any spot marker gun.” (§ 12001, subd. (g).) The definition comports with the general definition of a BB gun: “a smooth bore air gun actuated by a spring loaded plunger that upon release from the cocked position compresses the air behind the pellet and propels it from the tube.” (Webster’s 3d New Intemat. Diet. (2002) p. 189.) Although the Dangerous Weapons Control Law does not specifically apply its section 12001, subdivision (g), definition of “BB device” to “dangerous weapon[s]” referred to in section 12022, subdivision (b), the policy considerations supporting criminalizing the possession of BB guns and pellet guns on school grounds, or the sale of BB or pellet guns to minors, would in our view likewise support characterizing pellet guns as “dangerous weapon[s]” as that term in used in section 12022, subdivision (b).

The legislative history related to the 1993 amendment of section 626.10 (the statute at issue in Arturo H.), which added to its subdivision (a) the prohibition of “any instrument that expels a metallic projectile such as a BB

DISPOSITION

The orders sustaining the petition and committing appellant to CYA are affirmed. The case is remanded to the juvenile court with directions to (1) calculate the amount of precommitment custody credit to which appellant is entitled; (2) prepare an amended commitment order reflecting such credit; and (3) forward a certified copy of the amended commitment order to CYA or, if applicable, appellant’s alternate placement.

Simons, J., and Gemello, J., concurred.

Appellant’s petition for review by the Supreme Court was denied November 2, 2005.