Is It Legal to Use a Pellet Gun in California ?
In People v. Dixon (2007) 153 Cal.App.4th 985, the defendant was charged with personal use of a firearm pursuant to the provisions of Penal Code section 12022.53, subdivision (b).
The trial court concluded the prosecution had failed to prove the gun Dixon used was a firearm because the evidence was such that the weapon could have been a pellet gun.
The trial court, however, found the prosecution proved Dixon had used a deadly weapon, thus subjecting Dixon to the lesser included enhancement of section 12022, subdivision (b), personal use of a deadly weapon.
There was no dispute that a pellet gun was not a firearm for the purposes of the enhancement statute, but was a dangerous weapon as that term was used in section 12022. Instead, Dixon argued he was provided inadequate notice of the section 12022 weapons enhancement. This court began by noting the due process clause mandates that every criminal defendant be given fair notice of the charges against him so that he or she may prepare a defense and avoid unfair surprise. (Dixon, supra, 153 Cal.App.4th at p. 1001.)
An accusatory pleading, however, provides the defendant with notice not only of the charged offense, but also of any necessarily included offenses. (Ibid.) The issue was whether personal use of a deadly weapon was a lesser included enhancement to personal use of a firearm. We concluded it was.
"Dixon was charged with personal use of a firearm within the meaning of section 12022.53, subdivision (b). One cannot commit an offense by personally using a firearm and not at the same time commit an offense by personally using a deadly weapon. This is due to the fact that a deadly weapon is any instrument that is capable of being used to inflict death or great bodily injury and a firearm is unquestionably a deadly weapon. 'It is of no consequence that the evidence at trial might also establish guilt of another and lesser crime than that charged. To constitute a lesser and necessarily included offense it must be of such a nature that as a matter of law and considered in the abstract the greater crime cannot be committed without necessarily committing the other offense. ' Since section 12022, subdivision (b), is included within section 12022.53, subdivision (b), Dixon was adequately apprised that the prosecution was seeking to prove the elements which comprise a section 12022, subdivision (b), enhancement. Consequently, there was no lack of notice or due process violation." (Dixon, supra, 153 Cal.App.4th at p. 1002.)