Legal Question in Criminal Law in California

Assault with an unloaded gun.

Please help me prove this statement: To be charged with assault you must have present ability to carry out the battery. Therefore, you cannot be charged with assault if you point an unloaded gun at someone, even if they believe the gun is loaded.


Asked on 10/29/99, 9:00 pm

1 Answer from Attorneys
Lyle Johnson Bedi and Johnson Attorneys at Law

Re: Assault with an unloaded gun.

The law does not support your position. The law does not look at your subjective knowledge, but rather looks to the objective evidence. Everyone considers a gun to be loaded and therefore a deadly weapon. Thus pointing an empty gun at a person is therefor an assualt with a deadly weapon.

Also a mistake as to the law is not a defense to a criminal act.

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Answered on 11/02/99, 2:17 am


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