California Penal Code §245 makes it a felony to assault another with a deadly weapon or by force likely to produce great bodily injury. Subd. (a)(1) makes it a two-, three-, or four-year felony (wobbler, with the possibility of up to one year in county jail) to assault another with a deadly weapon other than a firearm. Subd. (a)(2 – assaulting another with a firearm – ups the sentence slightly to provide a minimum of six months in county jail.

So, here’s the question: If I assault you with an unloaded firearm by, for instance, threatening to shoot you with it, but without trying to beat you with it as a club or bludgeon, what crime, if any, have I committed

A California jury instruction – CALCRIM No. 875 – attempts to answer that question.

Specifically, this jury instruction tells us that to be an assault with a deadly weapon, the “gun must be loaded unless used as [a] club or bludgeon.” In other words, for a firearm to be a deadly weapon, it either has to be loaded (thus punishable under subd. (a)(2)), or I have to beat you with it as in subd. (a)(1). Merely threatening you with an unloaded firearm, at the worst, is no more than a violation of P.C. § 417(b), a misdemeanor.

A recent case out of the Fourth District Court of Appeal (Div. 1), People v. Lattin (Dec. 18, 2024) Cal.App.5th [2024 Cal.App. LEXIS 809] tells us now that CALCRIM No. 875 is wrong.

In Lattin, the defendant threatened others with an unloaded shotgun. Some shotgun shells were later found in the passenger area of a vehicle at the scene. The still-unloaded shotgun was recovered from the trunk of that same vehicle. The defendant argued on appeal from his conviction for Pen. Code § 245(a)(2) that he could not be guilty of either subdivision where it appeared he had pointed his unloaded shotgun at his victims without attempting to beat them with it. The Fourth District Court disagreed, holding that an unloaded gun may in fact satisfy the “present ability” element of an assault under Pen. Code §240 in any case where the defendant has ammunition that is readily available and the means to immediately load the gun.

The bottom line is that CALCRIM No. 875 is an incorrect statement of the law. Per the Lattin decision, there is no bright-line rule in California that, unless the gun is used as a club or bludgeon, it must be loaded for an “assault with a deadly weapon” pursuant to subd. (a)(2) to have been committed.

As concluded by the court: “(I)t is a question for the jury whether a defendant with an unloaded gun possesses the means to load the gun and shoot immediately, or whether he is too many steps away from inflicting injury to have the present ability to commit assault.” If the defendant has “the means to load the (otherwise unloaded) gun,” as noted above, then a conviction for P.C. §245(a)(2) is appropriate.

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