In Re Jose A.

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, § 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…