Palo Alto Resident Arrested on Charges of Felony Assault with Deadly Weapon (CA Penal Code 245)

A 26-year-old man from Palo Alto (name withheld to protect the accused’s privacy) was arrested on charges of felony assault with a deadly weapon.  Allegedly, the individual in question was perched on a balcony when he was caught firing a BB gun (also known as a pellet gun) he’d supposedly aimed at a nearby Jiffy Lube, shooting toward the back of the building.  Although no one was injured in this minor incident (only a few signs and a vehicle were slightly damaged), law enforcement officials are treating this case as if the man went on a shooting spree with a real rifle instead of an imitation one.

A “BB” gun is a type of instrument that shoots projectiles, in this case a ‘bullet ball,’ or ‘BB.’  Some federal gun laws extend to BB guns and if you are convicted of some particular crimes and a BB gun were involved, then you may even face penalties that fall under the Brady Act.  As it happens, there is also a wide array of state laws against their use.  The state of California is one of 2 states (the other is Massachusetts) that have wide-ranging laws concerning pellet guns.  In California, selling, transferring, or loaning out a BB gun to a minor is illegal and there is a proposal before the California Senate  (Senate Bill 199) that would require that many types of toy guns be painted a bright color, amongst other regulations.  This stems from the fact that there have been incidences in the recent past that involved police officers mistaking a BB gun for a real one.

So why was this man accused with assault with a deadly weapon (ADW) when, in other places, a BB gun is defined as a ‘toy’ gun?  A California ADW (CA Penal Code 245) is an assault that occurs with the use of either force that will, in all likelihood, cause great bodily injury.  This crime is considered a California ‘wobbler,’ meaning that it may be prosecuted as either a misdemeanor or as a felony, depending on a number of factors.  Some of these factors include: whether there were injuries involved and what the type of weapon was.  If a person is convicted of a misdemeanor ADW, they may only spend 1 year in county jail.  However, if convicted of a felony ADW, penalties can be as high as 4 years or more in state prison.  A ‘deadly’ weapon, defined by California law as any object that could be used to cause either great bodily injury or death, this includes beer bottles, screwdrivers, and, yes, even BB guns that have caused no injury at all.