By Ray Hill

Professor Emeritus

Santa Rosa Junior College

Rule

Assault with a firearm (245(a)(4) P.C.) can be committed with an unloaded gun when the defendant has ammunition readily available and has the means to load the firearm immediately

Facts

The defendant, a convicted felon, was involved in a verbal altercation with four others at a gas station in Helendale in San Bernardino County. He retrieved a 12-gauge Mossberg shotgun from the trunk of his car, racked the slide several times (no shells were ejected), and pointed the gun at each of the victims while making threats to kill them (“You bitches going to get it,” “I’m from Peckerwood and I’m going to lynch you niggers.”) He then returned to his vehicle with the shotgun, drove off, but came back again, further brandishing the shotgun and renewing threats to kill the victims. One victim testified that when defendant exited his vehicle the second time, he racked the shotgun and an orange cartridge was ejected into the vehicle. San Bernardino sheriff’s deputies arrived and arrested the defendant. The shotgun was recovered. It was unloaded, however three live 12-gauge shotgun shells were found on the center console of the defendant’s vehicle.

A jury convicted the defendant of felony charges including assault with a deadly weapon (245(a)(4) P.C. The defendant appealed, contending there was insufficient evidence to establish the shotgun was loaded, thus he didn’t have the present ability to commit an assault.

Held

4DCA ruled there was sufficient evidence presented to circumstantially prove that the shotgun was loaded at the time of the assault. The defendant pointed the shotgun at the victims several times and threatened to kill them. A witness saw a suspected cartridge ejected from the gun and there was ammunition in the defendant’s vehicle that was “readily available,” or the shells could have been unloaded from the gun and placed there when defendant returned to his vehicle.

A firearms expert testified that the accessible live shells could have been loaded into the gun “in a matter of seconds.” The record contained substantial evidence that Lattin had the present ability to apply force with a firearm when he aimed the shotgun at the victims, threatening to kill them after returning to the gas station, the ruling states. There was also substantial evidence the gun was either loaded at that time or that Lattin had ready access to ammunition and could load the gun quickly. If ammunition is “readily available,” a jury may conclude a defendant has the present ability to commit an assault.

Author’s Notes

A case of first impression that interprets California Criminal Jury Instruction 87, which states that to commit an assault, a firearm must be loaded unless it is used as a club or bludgeon. It is the jury’s decision whether ammunition is “readily available” to fire a gun immediately or if there are too many steps from the present ability to commit an assault.

This issue is going to be based on the evidence present in each individual case. For example, live shells in a cartridge holder attached to the gun, carried in the clothing of a suspect or in a container in the suspect’s immediate vicinity, or in this case, readily accessible in a vehicle.

Other 245 P.C. cases from LegalUpdates:

1. Assault with a Deadly Weapon (245(a)(1) P.C. and Assault with Force Likely to produce Great Bodily Injury Are Different Definitions Within the Same Crime (LUPC# CAB00177 – 9/25/2022).

1. Present Ability to Commit Serious Bodily Injury is an Essential Element of the Crime of Assault (LUPC Ref. #CAC00104 – 6/1/23).