People v. Juan CA2/6

DISCUSSION

I. Juan argues that the trial court erred by not instructing sua sponte that section 245, subdivision (a)(2) requires that the firearm be loaded and operable. He points out that CALCRIM No. 875 ("Assault with Deadly Weapon (Pen. Code, Section 245(a)(2))") is silent regarding the requirement of a loaded and operable firearm. Juan asserts that the failure to instruct regarding the operable characteristics of the firearm removed an element of the offense from the trier of fact and is not harmless beyond a reasonable doubt. The trial court properly instructed with CALCRIM No. 875 regarding the offense of assault with a firearm. The instruction accurately tracks the language of sections 240 and 245, subdivision (a)(2). The instruction also properly informed the jury that before finding Juan guilty of assault with a firearm, it must find that at the time Juan acted, "he had the present ability to apply force with a firearm to a person." In People v. Miceli (2002) 104 Cal.App.4th 256, the court considered the similar criminal offense of assault with a semiautomatic firearm, section 245, subdivision (b). Miceli concluded that section 245, subdivision (b) does not require proof…