A gun does not need to be loaded to commit assault with a firearm

People v. Lattin (Cal. Ct. App., Dec. 18, 2024, No. D083262) 2024 WL 5153046, at *1

Summary: Lattin contends a gun must be loaded to commit assault with a firearm unless it is used as a club or bludgeon. (Pen. Code, § 245, subd. (a)(4).) He argues that 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. Lattin 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. Lattin claims this was prejudicial error, and the evidence was insufficient on present ability to support his conviction for assault with a firearm. The Court of Appeal rejected these claims, concluding that 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, but it is not a complete defense in all circumstances as a matter of law. If ammunition is readily available-as it was in this case—it 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.

The Court noted its disagreement with the Judicial Council of California Criminal Jury Instructions. One of the practice notes for CALCRIM No. 875, the model instruction for assault, states a “gun must be loaded unless used as [a] club or bludgeon” in order “to have [the] present ability to inflict injury.” (Use Note to CALCRIM No. 875.)

No Reversal for Instructional Error

The prosecution had two theories for why Lattin had the present ability to apply force with the shotgun. The evidence showed the shotgun was either loaded, or if not loaded, the evidence showed Lattin had ammunition readily available and could load it within seconds. The defense asserted “there was no evidence that the [shot]gun was loaded or was ever near any shotgun shells.”

Lattin requested a pinpoint instruction to link the evidence at trial to his defense theory for why the prosecution failed to prove present ability, which the trial court refused. Lattin was entitled to have the jury provided with additional instruction under the circumstances presented here. The standard instruction (CALCRIM No. 875) did not adequately advise the jury on the element of present ability in light of conflicting evidence that the shotgun may or may not have been loaded and that Lattin may or may not have had the means to quickly load it.

Lattin’s proposed instruction reflected an incorrect understanding of the law. Lattin asserted that there is a brightline rule in California that a gun must be loaded for a person to commit an assault with a firearm except under the unusual circumstance where it is used as a club or bludgeon. The Court held an assault with a firearm can be committed with an unloaded gun by a defendant who has ammunition available and the means to load it immediately.

The  trial court correctly refused to give Lattin’s pinpoint instruction as drafted, because it was partly incorrect given the evidence that the shotgun could be loaded in seconds. The trial court may have erred when it failed to instruct the jury before deliberations with a corrected version of the pinpoint instruction that was needed for them to assess the element of present ability. However, any error was harmless because the court gave a revised, correct instruction in response to the jury’s questions.

Jury instructions on elements of assault

The trial court instructed the jury with the elements of assault with a firearm using CALCRIM No. 875: “To prove that the defendant is guilty of this crime, the People must prove that:  1. The defendant did an act with a firearm that by its nature would directly and probably result in the application of force to a person;  2. The defendant did that act willfully;  3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; 4. When the defendant acted, he had the present ability to apply force with a firearm to a person;  AND 5. The defendant did not act in self-defense.”  There were no other instructions given on the element of present ability.

Governing Law

Section 240 defines assault to be “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) “[T]he present ability element of assault … is satisfied when ‘a defendant has attained the means and location to strike immediately.’ ” (People v. Chance (2008) 44 Cal.4th 1164, 1167–1168 (Chance).) As explained by our high court, “[i]n this context … ‘immediately’ does not mean ‘instantaneously.’ It simply means that the defendant must have the ability to inflict injury on the present occasion.”

The present ability element of assault is assessed on a continuum. “Time is a continuum of which ‘present’ is a part. ‘Present’ can denote ‘immediate’ or a point near ‘immediate.’ ” (People v. Ranson (1974) 40 Cal.App.3d 317, 321 (Ranson).) “Numerous California cases establish that an assault may be committed even if the defendant is several steps away from actually inflicting injury … so that injury would not be ‘immediate,’ in the strictest sense of that term.” (Chance, supra, 44 Cal.4th at p. 1168.)

Lattin Was Not Entitled to the Pinpoint Instruction He Drafted

Lattin asked the trial court to instruct the jury that assault with a firearm cannot be committed with an unloaded gun unless it is used as a club or bludgeon, and to explain that the present ability element of assault is assessed on a continuum. The trial court correctly refused the instruction as drafted.

Pinpoint instructions on the defense theory of the case are required upon request “when the point of the instruction would not be readily apparent to the jury from the remaining instructions.” (People v. Bolden (2002) 29 Cal.4th 515, 558–559, 127 Cal.Rptr.2d 802, 58 P.3d 931 (Bolden).) “A pinpoint instruction relates specific evidence to the elements of the offense, highlighting a defense theory.” (People v. Grassini (2003) 113 Cal.App.4th 765, 777, 6 Cal.Rptr.3d 662.) “Specifically, a criminal defendant ‘is entitled to an instruction that focuses the jury’s attention on facts relevant to its determination of the existence of reasonable doubt.’ ” (People v. Canizalez (2011) 197 Cal.App.4th 832, 856.) Pinpoint instructions are required to be given only if they are supported by substantial evidence, and “only when the point of the instruction would not be readily apparent to the jury from the remaining instructions.”

Here, the prosecution’s theory of the case was the shotgun was either loaded, or if not loaded, Lattin had ammunition readily available and could load it within seconds.

Under the circumstances it would have been inaccurate to tell the jury there could be no assault as a matter of law if Lattin’s gun were unloaded, which is what the instruction he drafted conveyed. As we have explained, an unloaded gun can be used to commit assault with a firearm by a defendant who has the means and ammunition available to load it immediately. And here, there was ample evidence in the record to support a conviction on this theory. Lattin’s requested instruction did not accurately pin the evidence adduced at trial to the present ability element of assault. The trial court correctly denied  using it to instruct the jury.

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