gno.law

People v. Jose A.

California Court of Appeal · D014554 · 1992-04-15 · Published · 5 Cal. App. 4th 697 · 7 Cal. Rptr. 2d 44 · 92 Daily Journal DAR 5080 · 92 Cal. Daily Op. Serv. 3283 · 1992 Cal. App. LEXIS 510

In Re JOSE A., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JOSE A., Defendant and Appellant

Area
criminal
Panel
Kathryn Todd (author)

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T07:33Z · confidence high

The juvenile court sustained a petition alleging assault with a firearm and unlawful exhibition of a firearm, ruling that a pellet gun constituted a firearm under former Penal Code section 12001.1. The Court of Appeal reversed, holding that a pellet gun is not a 'firearm' under Penal Code sections 245(a)(2) and 417(a)(2) because it does not use explosive means, and the statutory definition cited by the trial court was limited to Title 2 gun control laws.

Ruling reviewedStandardThe courtThe model
Finding that the pellet gun used by Jose was a 'firearm' under Penal Code sections 245(a)(2) and 417(a)(2).
“Here, the court erroneously applied the definition of firearm as contained in former section 12001.1 to sections 245, subdivision (a)(2) and 417, subdivision (a)(2).”
de novoerroragree with court
The appellate court correctly identified that the trial court misapplied a statutory definition from Title 2 (gun control) to offenses in Titles 8 and 11. The court properly applied the common meaning of 'firearm' (requiring explosive propulsion) to the undefined term in the assault statutes, supported by dictionary definitions and the specific legislative exclusion of pellet guns from those sections. The reasoning is legally sound and consistent with statutory construction principles regarding specific definitions versus general common meanings.

Authorities

  • relied: People v. Valdez (1985) 175 Cal.App.3d 103 — Prosecution must prove defendant used a firearm to sustain conviction under assault with a firearm statute.
  • relied: People v. Norton (1978) 80 Cal.App.3d Supp. 14 — Firearm includes devices expelling projectiles by force of explosion or combustion.
  • relied: People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30 — Where a word is not defined in a statute, its commonly accepted meaning applies.
  • relied: People v. Malone (1977) 72 Cal.App.3d 649 — An air gun is not a firearm because it uses no explosive to project a bullet.
  • relied: People v. Norwood (1972) 26 Cal.App.3d 148 — Omission of a provision from a similar statute concerning a related subject indicates different legislative intent.
  • relied: People v. Drake (1977) 19 Cal.3d 749 — Legislative intent can be inferred from the specific context in which a term is defined or used.

The appellate opinion: sound — The opinion is sound because it correctly distinguishes between the specific statutory definition of 'firearm' in Title 2 (which included pellet guns for certain purposes) and the common meaning required for undefined terms in Titles 8 and 11. It effectively uses the Legislature's specific inclusion of pellet guns in Section 12001(g) for Section 12551, but not in the assault statutes, to infer an intent to exclude them from the latter.

How this analysis was made · dispute it

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:32Z · confidence high

The juvenile court denied Jose A.'s Welfare and Institutions Code section 701.1 motion to dismiss, ruled that the pellet gun he used was a "firearm" under former Penal Code section 12001.1, sustained three counts of assault with a firearm (§ 245, subd. (a)(2)) and three counts of exhibiting a firearm in an angry manner (§ 417, subd. (a)(2)), and granted probation with detention pending delivery to immigration authorities. The Court of Appeal held that a compressed-air pellet gun is not a firearm within the common meaning of that word as used in sections 245 and 417, that former section 12001.1's broader definition was by its terms confined to title 2, and reversed the true findings on all counts without reaching the multiple-counts argument.

Ruling reviewedStandardThe courtThe model
Denial of the section 701.1 motion and finding that a compressed-air pellet gun is a "firearm" for purposes of Penal Code sections 245, subdivision (a)(2) and 417, subdivision (a)(2), based on the definition in former section 12001.1
“Here, the court erroneously applied the definition of firearm as contained in former section 12001.1 to sections 245, subdivision (a)(2) and 417, subdivision (a)(2).”
de novoerror (statutory interpretation)agree with court
The question is one of statutory construction, which the court properly resolved independently. Neither section 245 nor section 417 defines "firearm," so under People ex rel. Younger the ordinary meaning governs, and the dictionary, Black's, Norton, CALJIC No. 17.23, and Malone all require propulsion by explosion or combustion. Former section 12001.1 expressly limited its inclusion of BB and pellet guns to "as used in this title" (title 2), while sections 245 and 417 sit in titles 8 and 11; moreover it had been repealed and replaced by section 12001, subdivision (g), which extends the pellet-gun definition only to section 12551. The Norwood/Drake inference from the Legislature's selective inclusion is a standard and correct application of expressio unius reasoning. The trial court's reliance on a title-specific definition outside its stated scope was a legal error.
True findings on three separate counts of assault with a firearm against three victims
“In light of our reversal of the true finding on all counts, we need not address Jose’s further contention he was improperly found to have violated three separate counts of assault with a firearm.”
unclearnot reachedagree with court
Because the court reversed all true findings on the firearm ground, the multiple-counts contention became moot and the court properly declined to address it. No basis exists in the opinion to evaluate the merits of that argument.

Authorities

  • relied: People v. Valdez (1985) 175 Cal.App.3d 103 — To sustain a conviction for assault with a firearm the prosecution must prove the defendant used a firearm in committing the offense.
  • relied: People v. Norton (1978) 80 Cal.App.3d Supp. 14 — A firearm is a device designed as a weapon from which a projectile may be expelled by the force of an explosion or other form of combustion; use of a firearm is an element of section 417.
  • relied: People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30 — Where a statute does not define a word, its commonly accepted meaning applies.
  • relied: People v. Malone (1977) 72 Cal.App.3d 649 — An air gun, although it may be a dangerous or deadly weapon, is not a firearm because it uses no explosive to project a bullet.
  • relied: People v. Norwood (1972) 26 Cal.App.3d 148 — Where a statute on one subject contains a provision, its omission from a similar statute on a related subject shows a different legislative intent.
  • relied: People v. Drake (1977) 19 Cal.3d 749 — The Legislature's deliberate use of a term in one sense in one provision supports an inference it intended a different sense elsewhere when it omitted comparable language.

The appellate opinion: sound with gaps — The court correctly read former section 12001.1's pellet-gun definition as confined by its own text to title 2, applied the ordinary meaning of "firearm" with consistent California and out-of-state authority, and drew a sound expressio unius inference from section 12001, subdivision (g). The opinion is thin, however, on disposition: it reversed outright without considering whether the true findings could be modified to the lesser included offense of simple assault, which the undisputed facts (pointing and firing at the children) plainly supported, and it noted only that the district attorney had not sought affirmance under section 417.2.

How this analysis was made · dispute it

Opinion — Todd

*699 Opinion

TODD, J.

A petition filed in the juvenile court alleged Jose A. came within the provisions of Welfare and Institutions Code section 602 in that he committed three counts of assault with a firearm (Pen. Code, 1 § 245, subd. (a)(2)) involving three separate victims, and three counts of unlawfully exhibiting a firearm in an angry manner (§ 417, subd. (a)(2)) involving the same three victims. Jose moved to dismiss the petition under Welfare and Institutions Code section 701.1 on the ground a pellet gun, and not a firearm, was involved in the offenses. However, the court ruled the pellet gun used by Jose was a firearm as that term is defined in former section 12001.1. The court then sustained the allegations of the petition, granted Jose probation for one year, and ordered him detained in juvenile hall pending delivery to the Immigration and Naturalization Service for deportation to his legal residence in Mexico.

On appeal, Jose contends (1) the court erred in finding the pellet gun he used was a “firearm;” and (2) true findings were improperly made on three separate counts of assault with a firearm. We conclude a pellet gun, which operates by use of compressed air, is not a firearm within the meaning of sections 245, subdivision (a)(2), and 417, subdivision (a)(2) because it does not propel a shot through explosive means. Accordingly, we reverse.

Facts

On March 3, 1991, eight-year-old Daniel Valdez and eleven-year-old twins Angela and Maria Morrison, along with several other children, were playing with a frog near a pond. Seventeen-year-old Jose and another person approached with a pellet gun about a foot long. Jose shot twice at the frog in the water, hitting it once. When the children told Jose not to shoot the frog, he pointed the gun directly at them. The children ran into some bushes and Jose fired the gun. Daniel thought Jose and his companion were going to kill them. Although the children were not hit, they knew the gun went off because it made a loud boom.

The next day, Daniel, Angela, Maria and another boy were walking home when Jose and his friend came out of a garage. Jose pointed the gun at the children and said “if you don’t move I’ll shoot you.” The children ran to Daniel’s house and told his mother what had happened. She then notified the apartment manager who found Jose behind Daniel’s house holding a gun.

*700 Discussion

I

Jose contends the court erred in finding the pellet gun he used was a “firearm” under sections 245, subdivision (a)(2) and 417, subdivision (a)(2). Because a pellet gun is not a firearm, he asserts, the evidence was insufficient to support a true finding on all counts charged in the petition. We agree.

Under section 245, subdivision (a)(2), “[e]very person who commits an assault upon the person of another with a firearm is punishable by imprisonment in the state prison for two, three, or four years. . . .” Under section 417, subdivision (a)(2), anyone who, “except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, ... is guilty of a misdemeanor punishable by imprisonment in the county jail for a term of not less than three months.” In order to sustain a conviction under either of these sections, the prosecution must prove the defendant used a firearm in the commission of the offense. (See People v. Valdez (1985) 175 Cal.App.3d 103, 111-112 [220 Cal.Rptr. 538]; People v. Norton (1978) 80 Cal.App.3d Supp. 14, 26 [146 Cal.Rptr. 343].)

No definition of “firearm” is contained in either section 245, subdivision (a)(2) or section 417, subdivision (a)(2). Where, as here, a word is not defined in a statute, its commonly accepted meaning applies. (See People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30, 43 [127 Cal.Rptr. 122, 544 P.2d 1322].)

According to its usual and ordinary import, a firearm is “[a] weapon capable of firing a missile, especially] a pistol or rifle using an explosive charge as a propellant.” (The American Heritage Dict. (2d college ed. 1982) p. 506.) Firearm is also defined as “[a]n instrument used in the propulsion of shot, shell, or bullets by the action of gunpowder exploded within it.” (Black’s Law Dict. (6th ed. 1991) p. 634.) “ ‘The word, firearm, includes a pistol, revolver or rifle, or any other device designed to be used as a weapon from which a projectile may be expelled by the force of any explosion or other form of combustion. . . .’ [Citations.]” (People v. Norton, supra, 80 Cal.App.3d at Supp. 25-26.) 2 However, because a pellet gun uses compressed air rather than an explosive to project a bullet, it is not a “firearm” *701 as that word is commonly defined. 3 (Cf. People v. Malone (1977) 72 Cal.App.3d 649, 655 [138 Cal.Rptr. 397]) [air gun, although dangerous or deadly weapon, is not firearm since it uses no explosive to project a bullet].)

Here, the court erroneously applied the definition of firearm as contained in former section 12001.1 to sections 245, subdivision (a)(2) and 417, subdivision (a)(2). Before its repeal, section 12001.1 provided: “Except for the purposes of Sections 12021, 12025, 12031, 12072, and 12073, as used in this title the term ‘firearm’ shall also include any instrument which expels a metallic projectile, such as a BB or a pellet, through the force of air pressure, C02 pressure, or spring action or any spot marker gun, provided, that no instrument described in this section shall be considered a ‘pistol,’ ‘revolver,’ or ‘firearm capable of being concealed upon the person’ for any purpose.” (Stats. 1988, ch. 1605, § 3, p. 5821, repealed in Stats. 1991, ch. 950, §4; italics added.) A plain reading of section 12001.1 shows the inclusion in that section of pellet gun in the definition of firearm was limited to the control of deadly weapons under title 2 and did not apply to sections 245, subdivision (a)(2) or 417, subdivision (a)(2) which are part of titles 8 and 11 respectively. In any event, the Legislature repealed section 12001.1 and thus “firearm” no longer generally includes pellet guns in its definition.

Section 12001, subdivision (b), as amended, now defines “firearm” as used in title 2 as “any device, designed to be used as a weapon, from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion.” (Stats. 1991, ch. 955, § 1.1.) The only statutory definition of firearm to include pellet or air guns is found in subdivision (g) of section 12001: “For purposes of Section 12551, the term ‘firearm’ also shall include any instrument which expels a metallic projectile, such as a BB or a pellet, through the force of air pressure, C02 pressure, or spring action, or any spot marker gun.” The inclusion of pellet guns in this provision is expressly limited, however, to section 12551 making the sale of any firearm to a minor a misdemeanor. 4

“It is a settled rule of statutory construction that where a statute, with reference to one subject contains a given provision, the omission of such *702 provision from a similar statute concerning a related subject is significant to show that a different legislative intent existed with reference to the different statutes. [Citations.]” (People v. Norwood (1972) 26 Cal.App.3d 148, 156 [103 Cal.Rptr. 7].) Here, section 12001, subdivision (g), specifically includes pellet guns in its definition of firearm for the purpose of prohibiting their sale to minors, while pellet gun is not included in sections 245, subdivision (a)(2) or 417, subdivision (a)(2). The Legislature presumably was aware of those sections when it amended section 12001 in 1991. The Legislature’s failure to define firearm in titles 8 and 11, while expressly including pellet gun in its definition of firearm in section 12001 as applied to section 12551, raises a strong inference the word “firearm” was intended to be used for purposes of gun control and minors in a sense different from its common meaning. (See People v. Drake (1977) 19 Cal.3d 749, 755 [139 Cal.Rptr. 720, 566 P.2d 622].) We conclude the Legislature intended to restrict the meaning of firearm in sections 245, subdivision (a)(2) and 417, subdivision (a)(2) to exclude such instruments as pellet or BB guns. Because the petition here alleged assault with a firearm and unlawfully exhibiting a firearm in an angry manner, and the evidence showed Jose used a pellet gun and not a firearm to commit the crimes, the true finding on all counts must be reversed.

II

In light of our reversal of the true finding on all counts, we need not address Jose’s further contention he was improperly found to have violated three separate counts of assault with a firearm.

Disposition

The order is reversed.

Wiener, Acting P. J., and Huffman, J., concurred.

1

All statutory references are to the Penal Code unless otherwise specified.

2

The jury instruction for assault with a firearm is contained in CALJIC No. 9.02. The use note to CALJIC No. 9.02 refers to CALJIC No. 17.23 for a definition of the word “firearm.” CALJIC No. 17.23 defines firearm as including “a pistol, revolver, shotgun, [or] rifle [or any *701 other device designed to be used as a weapon from which a projectile may be expelled by the force of an explosion or other form of combustion].”

3

The majority of courts that have considered the issue have held pellet or air guns are not firearms. (See, e.g., U.S. v. Smith (9th Cir. 1990) 905 F.2d 1296, 1299; Kinnish v. State (Alaska Ct. App. 1989) 777 P.2d 1179, 1180; State v. Johnson (1983) 8 Kan.App.2d 368 [657 P.2d 1139, 1141]; Strong v. U.S. (D.C. 1990) 581 A.2d 383, 385; State v. Beaudette (1984) 124 N.H. 579 [474 A.2d 1012, 1014]; Com. v. Schilling (1981) 288 Pa.Super. 359 [431 A.2d 1088, 1090].) The definition of firearm adopted in these jurisdictions is consistent with both the standard and legal dictionary definitions of that word.

4

We note that section 417.2, subdivision (a) makes it a misdemeanor to draw or exhibit “a replica of a firearm in a threatening manner against another in such a way as to cause a reasonable person apprehension or fear of bodily harm” except if done in self-defense. Under *702 this subdivision, “replica of a firearm” includes “air guns.” (Ibid.) The evidence here would have supported a true finding of unlawfully exhibiting a replica of a firearm. However, the petition filed as to Jose did not include an allegation under section 417.2, subdivision (a), and the district attorney does not argue we should affirm on this ground.

Cites, in this corpus

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