Appeals Ruling Highlights “Readily Available” Ammo When Charging Assault with Unloaded Gun

By Ray Hill

Professor Emeritus

Santa Rosa Junior College

Rule

Assault with a firearm (245(a)(4) P.C.) can be committed with an unloaded gun when the defendant has ammunition readily available and has the means to load the firearm immediately

Facts

The defendant, a convicted felon, was involved in a verbal altercation with four others at a gas station in Helendale in San Bernardino County. He retrieved a 12-gauge Mossberg shotgun from the trunk of his car, racked the slide several times (no shells were ejected), and pointed the gun at each of the victims while making threats to kill them (“You bitches going to get it,” “I’m from Peckerwood and I’m going to lynch you niggers.”) He then returned to his vehicle with the shotgun, drove off, but came back again, further brandishing the shotgun and renewing threats to kill the victims. One victim testified that when defendant exited his vehicle the second time, he racked the shotgun and an orange cartridge was ejected into the vehicle. San Bernardino sheriff’s deputies arrived and arrested the defendant. The shotgun was recovered. It was unloaded, however three live 12-gauge shotgun shells were found on the center console of the defendant’s vehicle.

A jury convicted the defendant of felony charges including assault with a deadly weapon (245(a)(4) P.C. The defendant appealed, contending there was insufficient evidence to establish the shotgun was loaded, thus he ....