What is the test for a jury to determine whether the evidence is sufficient to convict a defendant of simple assault under Penal Code section 240 of the Penal Code?

independently whether the evidence is sufficient under the federal and state constitutional due process clauses." (People v. Cole, supra, 33 Cal.4th at p. 1213.)

Under section 240, an assault is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." Section 245, subdivision (a)(2) provides that when the assault is committed by a firearm, it is a felony. "[I]t has been stated that 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 a simple assault under Penal Code section 240, because 'there is in such a case no present ability to commit a violent injury on the person threatened in the manner in which the injury is attempted to be committed.'" (People v. Mosqueda (1970) 5 Cal.App.3d 540, 544.)

"California courts have often held that a defendant's statements and behavior while making an armed threat against a victim may warrant a jury's finding the weapon was loaded." (People v. Rodriguez (1999) 20 Cal.4th 1, 12.) "'The acts and language used by an accused person while carrying a gun may constitute an admission by conduct that the gun is loaded.'" (Id. at p. 13.)