Can a Defendant in a Criminal Case commit an ADW with an unloaded gun?
In order to answer this question we must first understand the legal elements of the crime of ADW Firearm. The legal definition of California assault with a deadly weapon, Penal Code 245(a)(2) PC, consists of the following “elements of the crime” as set forth in CalCrim 875:
The person performed an act with a firearm that, by its nature, would probably result directly in the application of force to someone else;
The person performed that act willfully;
When the person acted, they were aware of facts that would lead a reasonable person to believe that the act would directly and probably result in the application of force to that person; and
When the person acted, they had the present ability to apply force with the firearm.
These “elements” are the facts that the prosecutor must prove in order for a person to be guilty of the offense of ADW firearm, Penal Code 245, in California.
The Present ability to apply force element.
It is obvious that In order to be guilty of assault with a firearm, you need to have had the “present ability” to apply force with that firearm.
This means that you are not guilty of this crime if you waved or pointed an unloaded firearm at someone—because in this case you would not actually have had the ability to inflict violence with the firearm.
The only exception is if you were using the gun as a club or a bludgeon—that is, if you were hitting or attempting to hit someone with a gun, rather than firing it.
See, for example, People v. Fain (1983) 34 Cal.3d 350, 357 fn. 6. (“The threat to shoot with an unloaded gun is not an assault, since the defendant lacks the present ability to commit violent injury.”)
It has also been observed that the threat to shoot with an unloaded gun is not an assault, since the defendant lacks the present ability to commit violent injury. (People v. Lee Kong (1892) 95 Cal. 666, 669 [30 P. 800]; see People v. Wolcott (1983) 34 Cal.3d 92 at p. 99 where the Court observed: “if a person points an unloaded gun at another, without any intent or threat to use it as a club or bludgeon, he does not commit … assault under Penal Code section 240 ….” (People v. Mosqueda (1970) 5 Cal.App.3d 540, 544 [85 Cal.Rptr. 346]; People v. Sylva (1904) 143 Cal. 62, 64 [76 P. 814].)
Furthermore, the jury instruction Bench Notes for this particular offense itself, CALCRIM No 875, recognizes that there must be proof the gun was loaded in order to constitute the crime of Penal Code 245(a)(2) and Penal Code 245(b). CALCRIM 875: “To Have Present Ability to InXict Injury, Gun Must Be Loaded Unless Used as Club or Bludgeon. People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3. Emphasis added”
Indeed, the preeminent authority on California Criminal Law, Witkin, has recognized:
“Practically all of the cases applying the present ability limitation…hold that threatening to shoot someone with an unloaded gun is neither simple assault nor an assault with a deadly weapon. See People vs. Silva (1904) 143 Cal 62, 63.” Witkin California Criminal Law, 3D Edition, Crimes Against Person, §9, pg 644.
Based on the foregoing authority, a person cannot be found guilty of assault with a firearm in California unless it is proven that the firearm was loaded or the firearm was used as a Club or bludgeon.