C.A. Holds BB Gun Was ‘Deadly Weapon’ Although Victim Was Across the Street

Wednesday, June 28, 2017

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C.A. Holds BB Gun Was ‘Deadly Weapon’ Although Victim Was Across the Street

By a MetNews Staff Writer

The Court of Appeal for this district has affirmed the conviction of a man for assault with a deadly weapon, rejecting his contention that a BB gun, when used to shoot a victim who was across the street, is not a “deadly weapon.”

Defendant Ezra Jay Kirk did not contest his conviction based on shooting a victim who was an arm’s distance away, but insisted on appeal that his shooting of a second victim, who was more than 50 feet away and incurred only red welts from being pelted with BB bullets, did not entail use of a deadly weapon.

Agreeing with Los Angeles Superior Court Judge Gary J. Ferrari, Div. Two, in an opinion by Justice Brian M. Hoffstadt, affirmed both convictions on Monday. The opinion that was not certified for publication.

Hoffstadt said that under the California Supreme Court’s 1997 decision in People v. Aguilar, a “deadly weapon” is “any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.”

The jurist confined his discussion to the propensity of a BB gun producing “great bodily injury.” He said:

“The jury had before it evidence sufficient to find that defendant’s BB gun was capable of inflicting great bodily injury. The gun inflicted such injury on the nearby man. And even from more than 50 feet away, the gun embedded pellets in a window located behind the man across the street, penetrated that man’s clothing, and caused red marks on his skin that led to stinging pain.”

He went on to say:

“Whether or not there is proof of a statistical likelihood that defendant would have shot the man standing over 50 feet away in the eye or mouth, a rational jury could conclude—from the evidence that defendant was shooting at his victims’ heads, that the injuries at close range were severe and could have been more severe (if, for instance, the BB had hit an eyeball or other orifice), that the injuries at longer range caused pain and swelling, and that the reason those injuries were not more severe was because the victim turned away—that the BB gun he fired was capable of inflicting and likely to inflict great bodily injury.”

The case is People v. Kirk, B279400.