Aggravated assault instruction may improperly allow jury to convict a defendant of assault with a deadly weapon even if it rejects the idea the instrument was inherently deadly or employed in a manner capable of causing death or great bodily injury. Appellant was convicted of two counts of assault with a deadly weapon after using a BB gun to shoot several people. It was also found true that the offenses were committed for the benefit of a gang. (Pen. Code, §§ 245, subd. (a)(1), 186.22, subd. (b)(1)(c).) The court struck the gang finding pursuant to section 1385 and imposed a four year term. On appeal the defendant challenged the sufficiency of the evidence and the erroneous instruction defining “deadly weapon.” Held: Affirmed. CALCRIM No. 875 permitted the jury to find the BB gun was a deadly weapon on three theories: (1) it was inherently deadly; (2) it was inherently dangerous; or (3) it was used in a manner capable of causing and likely to cause great bodily injury. Only the first and third bases for criminal culpability come within the meaning of section 245, subdivision (a)(1), which prohibits assaults “with a deadly weapon or instrument.” Although reversal is generally required in cases involving a legally inadequate theory (People v. Guiton (1993) 4 Cal.4th 1116), this type of error may be considered harmless in appropriate cases. Here, there was substantial evidence that defendant used the BB gun in a manner capable of inflicting great bodily injury. The instructional error was harmless.

The evidence was sufficient to support the jury’s finding that the BB gun was used was a deadly weapon. In order to prove the offense, the prosecution was not required to produce evidence regarding the nature of the BB gun and the types of injuries it might inflict. Here, the shots were fired at close range and the circumstances provided sufficient evidence for the jury to find the BB gun was a deadly weapon.