Assault With a BB Gun (California)

In People v. Brown (2012) 210 Cal.App.4th 1, the defendant was charged with committing an assault with a BB gun, firing it at the victims at a distance of between six and 12 feet. (Id. at p. 13.) The jurors were instructed with the current version of CALCRIM No. 875 and, on appeal, the Brown court agreed the instruction was ambiguous as it "may impermissibly allow a jury to convict a defendant of assault with a deadly weapon if it finds the weapon employed was inherently dangerous, even if it rejects the notion that the instrument was inherently deadly or used in a manner capable of causing and likely to cause death or great bodily injury." (Brown, supra, at p. 11.) Regardless, the court found the ambiguity of the instruction harmless beyond a reasonable doubt because "there was ample evidence at trial defendant used the BB gun in a manner capable of inflicting and likely to inflict great bodily injury." (Brown, supra, 210 Cal.App.4th at p. 13.) The victims in Brown were struck in the back and in the foot, suffering only minor injuries, but it was undisputed they could have been seriously injured had they been hit in the head or the face. (Id. at pp. 5, 13.) There was no likelihood the jury found the defendant guilty merely by concluding a BB gun was inherently dangerous. (Id. at p. 13.)