What constitutes an assault with a deadly weapon?

"An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." ( 240.) "A long line of California decisions holds that an assault is not committed by a person's merely pointing an (unloaded) gun in a threatening manner at another person." (People v. Rodriguez, supra, 20 Cal.4th at p. 11, fn. 3.) "'[P]ointing an unloaded gun at another person with no effort or threat to use it as a bludgeon, is not an assault with a deadly weapon' because 'there is no present

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ability to commit a violent injury on the person.' [Citations.]" (People v. Bekele (1995) 33 Cal.App.4th 1457, 1463, disapproved on another ground in People v. Rodriguez, supra, 20 Cal.4th at p. 14.)

"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, supra, 20 Cal.4th at p. 12.) The jury's finding in this case is based on substantial evidence.