Hamilton

— Charged with four counts of attempted premeditated murder and other related offenses, Bernard Lee Hamilton was convicted of the lesser related offense of use of a tear gas weapon. In this opinion we conclude that to be guilty of the unlawful use of a tear gas weapon, it is unnecessary that the weapon be either loaded or operable.

Facts

A. Prosecution Case

On October 28, 1995, Kristina Machuta was at a party in Mira Mesa. Appellant, Machuta’s former boyfriend, also attended the party. At approximately 11 p.m., Machuta and several friends left the party in a car driven by Shalief Strother. Machuta became upset when she saw appellant in a car behind them. The car in which appellant was riding drove up next to Strother’s window. Appellant, who was in the front passenger seat, and who was accompanied by two other men, told Strother to pull over. Machuta did not want to talk to appellant and asked Strother to take her back to the party. Strother did so.

After Strother left Machuta at the party, he and his remaining passengers drove away. Appellant and his companions followed. Strother sped up. Appellant’s car drove in front of them and appellant reached out his…