There are seven pages in this case of detailing the events facing a CHP officer and Sonoma County Sheriffs Office deputies back over an extended period of time. For brevity purposes, here is a summary of the key facts:  

A CHP officer was on patrol in eastern Sonoma County near the outskirts of county park. The officer observed two individuals in a confrontation, one (the defendant) holding a knife with the blade pointed upward “in an athletic combative stance”, the other holding a rock. They “appeared to be in a standoff”. The officer parked and exited his vehicle, approached within 8-10 feet of the subjects, drew his duty weapon and ordered them to drop their weapons and get on the ground. The man with the rock complied. Defendant dropped to the ground, but then got up without the knife and walked towards a parked, red Subaru, hands in the air and loudly and repeatedly yelling, “I just want to leave". He disregarded orders to stop.

The solo officer was still dealing with the second individual and was awaiting was awaiting backup. The defendant entered the vehicle and left the scene. An APB was broadcast to responding officers. Sonoma County Sheriffs deputies arrived. Defendant then returned to the scene. He exited the car holding a black handgun, took a “shooting stance”, racked the gun, and took aim directly at officers (one officer testified that he was “staring down the barrel and thought he was going to die)” and pulled the trigger. The gun did not not fire.

With the gun pointed at the ground, the defendant re-racked the gun and pulled the trigger several times. It still did not fire. The officer and deputies testified that they did not fire their duty weapons in self defense because of the belief the gun had malfunctioned or was unloaded; the defendant did not point the gun at them after the first attempt; or perhaps it was an Airsoft / facsimile weapon.

Defendant then reentered the car and after both a vehicle and foot pursuit, he was apprehended. The gun in-fact was unloaded. Defendant was convicted of 69(a) P.C. (amongst other charges) and sentenced to 7-years / 4-months in prison. 

Defendant appealed his conviction on grounds that since the gun was unloaded, he could not be guilty of assaulting the officer due to lack of present ability. Thus, he could not be convicted of the greater offense because he did not resist an officer through the use of force or violence.