(People v. Smith (2001) 24 Cal.4th 849, 852.) Under the personal use arming enhancements, Penal Code section 12022.5, subd.(a), brought against appellant, a pellet gun is not a firearm. Accordingly, as a matter of law, appellant cannot be sentenced for personal use of a firearm under that statute.

The jury found that these crimes were a special circumstance within the meaning of section 190.2, subdivision (a)(3). The jury rejected the allegation that codefendant Grajeda personally used a firearm within the meaning of section 12022.5, subdivision (a)(1). (ICT 254, 2CT 682-684.)

With respect to Counts I and II, the murder counts, the court also imposed two consecutive five-year enhancements pursuant to section 12022.5. As to Count III, the court imposed a sentence of three years, plus a four year enhancement pursuant to section 12022.5, all of which were stayed pursuant to section 654. (3 CT 772-773, 785.) The court also imposeda restitution fine of $10,000 and direct victim restitution of $4,000.

A multiple murder special circumstance” allegation was attached to counts one, two, and three, pursuantto sections 190.2, subdivision (a)(3). Firearm enhancements werealso attached to counts one through four pursuant to sections 12022.7, 12022.53(a)(b)(c)(d) and 12022.5(a)(1), and a great bodily injury enhancement wasattached to count five pursuant to section 12022.7(a). (1CT 63-68.)

(1 CT 2.) Personal firearm use and weapon use allegations pursuant to Sections 12022.5(a) and 1192.7(c)(8) were alleged in connection with Counts I and II. (1 CT 2.) Count Icharged appellant with a violation of Section 12021(a)(1) (felon in possession of a firearm) within the meaning of Penal Code Section 12001.6. (/d.)

Personal use of a firearm was alleged against appellant as to each count. (Pen. Code, §§ 187, 12022.5(a).) Codefendant Lolohea was alleged to have been armed with a firearm.

It was also alleged thatin the commission and attempted commission of conspiracy to murder Ardell Williams and the murder of Ardell Williams, Antoinette Yancey personally used firearm. (See Cal. Penal Code §§1203.06(a)(1), 12022.5(a)). (CT 276).

Counts 1,2, and 3 also alleged personal use ofa fIrearm. by Mr. Rountree in the commission or attempted commission ofa felony within the me~ingofPenal ~ode section 12022.5, subdivision (a), and that Stroder was not personally armed but knew that a principal was armed within the meaningofPenal Code section 12022, subdivision (d). (2 CT 463-465.)

kidnapping and rape, both in violation of Penal Code sections 207 and 26 1 and as special circumstances within the meaning of Penal Code section 190.2. The indictment also alleged that appellant had personally used a firearm within the meaning of Penal Code sections 12022.5 and 1203.06. (Ibid.)

The information also alleged several enhancements. Thus, it was alleged as to each count that Petitioner personally used a firearm, within the meaning of sections 1203.06(a)(1) and 12022.5, making each count a serious felony pursuant to section 1192.7(c)(8). CT 655-65.