CA Penal Code 240 Jury Instruction
In People v. Wilson (1967) 66 Cal.2d 749, 59 Cal. Rptr. 156, instructions on brandishing were not requested and were not given by the court on its own motion, and the defendant was convicted of assault with a deadly weapon for pointing a shotgun at one of his victims (Champion).
The Supreme Court held that the defendant's conviction had to be reversed "for failure to instruct on section 417." ( Id. at p. 764.)
The court's entire analysis was as follows: "'An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.' (Pen. Code, 240.)
Defendant did not shoot or strike Champion; had the jury been instructed on section 417 the evidence would have justified the conclusion that defendant committed a violation of that section rather than the assault found. (People v. Carmen (1951) 36 Cal.2d 768, 774-775, 228 P.2d 281.)
Under the rules set forth above, the error must be deemed prejudicial. " ( People v. Wilson, supra, 66 Cal.2d at p. 764.)