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Name: In re Bartholomew D.
Case #: A106781
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 07/22/2005

Appellant was a juvenile committed to CYA after the juvenile court found he committed a robbery and personally used a deadly or dangerous weapon, a BB gun, in the commission of that felony in violation of Penal Code section 12022, subdivision (b). On appeal, the minor argued that there was insufficient evidence to support the finding that the particular BB gun he used was a deadly or dangerous weapon within the meaning of the statute. The gun was introduced into evidence, but no evidence was presented regarding the velocity with which the BBs could be expelled from the gun, the material or shape of the BBs, or the velocity necessary to produce injury. Appellant argued that under People v. Lochtefeld (2000) 77 Cal. App. 4th 533, the capacity of this gun to injure could not be determined. The appellate court rejected the argument and affirmed. Lochtefeld does not assist appellant because it did not establish an evidentiary threshold for proof of a weapon’s capability to injure, and involved a violation of section 245, which requires a finding of a deadly (not deadly OR dangerous) weapon, as well as a present ability to injure.