Legal Question in Criminal Law in California

Hello. My husband was just arrested on a complaint filed by the DA's office for discharging a BB gun. The act occured 4 months ago and any and all complaints of damage or otherwise was taken care of that time. The sheriff's dept was called that day, they came out and talked to him and confiscated his BB gun. My question is this: my husband is an ex-felon on a canibas charge from 10 years ago. His parole was complete on 03/08/05. While he knows he is not allowed to be in possesion of a "fire"arm, a BB gun uses no "fire", just Co2. Can he, as an ex-felon, be charged with a felon in possesion of a firearm? The actual charge filed against him is misdemeanor charge. Thank you and I hope I've given you enough information to offer an answer. We live in Northern California. Leslie Odle


Asked on 5/21/10, 8:37 am

1 Answer from Attorneys
Anthony Roach Law Office of Anthony A. Roach

Did he point all this out to his attorney? California Penal Code section 12001 defines firearms. BB guns are defined separately than firearms. "For purposes of sections 12551 and 12552, the term 'BB device' means any instrument that expels a projectile, such as a BB or a pellet, not exceeding 6mm caliber, through the force of air pressure, gas pressure, or spring action, or any spot marker gun." This definition references specific Penal Code sections that deal with minors and firearms and only includes BB guns and pellet guns as firearms in those sections. Since these weapons rely on the force of air pressure and not combustion, they do not qualify as firearms under Penal Code section 12021, California�s felon with a firearm law.

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Answered on 5/25/10, 5:39 pm


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