Lattin

INTRODUCTION

Stephen James Lattin contends a gun must be loaded to commit

assault with a firearm unless it is used as a club or bludgeon. (Pen. Code,1 § 245, subd. (a)(4).) He asserts the present ability element of assault cannot be satisfied with an unloaded gun if the defendant is too far from the victim to inflict injury with the firearm as a club or bludgeon. Based on his understanding of the law, he requested a pinpoint instruction that an assault with a deadly weapon is not committed by a person “pointing an unloaded gun . . . with no effort or threat to use it as a baton” or “pointing an unloaded gun in a threatening manner” at another person. The trial court declined to give his pinpoint instruction to the jury. He asserts this was prejudicial error, and further claims the evidence was insufficient on present ability to support his conviction for assault with a firearm. We reject both contentions. In the published portion of our opinion, we conclude there is no brightline rule in California that, unless it is used as a club or bludgeon, a gun must be loaded for an assault to be committed. Proof that a firearm was unloaded can be a complete defense to charges of assault,…