Does a defendant who points a gun at the victim's head and makes a conditional threat to shoot the victim if he refuses to leave, constitute assault by conditional threat?

Further, defendant's words, assuming they were contemporaneous to the act, do not render his act an assault. To be sure, assault may exist where a defendant imposes an immediate condition backed up by the threat of violence. (See People v. McMakin (1857) 8 Cal. 547, 548-549 [pointing gun downward while threatening to shoot the victim if he did not leave constituted assault].) But, here, assault by conditional threat was neither charged, instructed, nor argued. Indeed, assault based on a conditional threat requires a defendant to compel immediate action from the victim, conduct not apparent from this record. (See CALCRIM No. 916.)⁶

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