What is the test for making an armed threat against someone who is not a member of a rival gang?

As with the nature of the object, the prosecution may prove this element using circumstantial evidence. Thus, 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, supra, 20 Cal.4th at p. 12 [defendant's threat, while pointing gun at victim's chin, that he " 'could do to you what I did to them' " supported an inference the gun was loaded].)

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Here, defendant followed two people who appeared to be members of a rival gang trespassing in 18th Street territory, then repeatedly demanded their gang affiliation while pointing a gun at them. The jury could have reasonably inferred that defendant would not use an unloaded firearm to challengeand thereby invite violence frompeople he believed to be dangerous rival gang members, and then could further infer that the gun was loaded. (See People v. Rodriguez, supra, 20 Cal.4th at p. 11 [jury could infer defendant gang member would not carry an unloaded gun in an area with prevalent gang violence].)