California Penal Code §240: Assault

In California, the crime of "assault" occurs when you perform an act that is likely to result in the application of force to another person. There is no requirement that an assault must actually result in a violent or forceful act upon another.

For the crime to be complete, you:

     1. attempted to commit such an act, and

     2. had the ability to do so.

Also known as "simple assault," California Penal Code §240 is a misdemeanor when the alleged victim doesn’t suffer any significant injury.

On the other hand, Penal Code §245(a)(1) "aggravated assault" (a.k.a. "assault with a deadly weapon" or ADW) occurs when

     1. you use a deadly weapon or other instrument capable of producing great bodily injury, and/or

     2. the alleged victim is seriously injured.

Assault with a deadly weapon is clearly a far more serious charge, involving the more serious assault offenses.

Is it Assault or Battery?

Thanks to TV and movies, most people wrongly believe that "assault & battery" is a single crime or that they are the same crime. In reality, Assault is quite different from Battery.

A Battery occurs when you actually use force or violence against another person, whereas an assault is merely an attempt to inflict harm.

Elements of Assault

Before you can be convicted of "simple" or "misdemeanor" assault in California, the prosecutor must prove the following three elements, beyond a reasonable doubt:

   1. that you "willfully" acted in a way that would likely result in the "application of force" to another,

   2. that you were aware that your "act" would likely result in that application of force, and

   3. you "willfully acted" with the present ability to follow through with the act that would cause that contact.

In this context, "willful" means intentional, rather than accidental. It does not mean that you necessarily

     1. intended to injure the other person, or

     2. intended to break the law.

For purposes of Assault, "application of force" simply means any touch…no matter how slight…if the touch is done in an angry, harmful, or even offensive manner. Plus, the physical contact (or touching) can be through one’s clothing or even indirectly through an object or another person. Pain or injury are not required. The touching is enough.

To be convicted, the jury must believe that you were "aware" that your act would likely result in harm.

Under California Penal Code §240 "assault" is a misdemeanor. If convicted of this offense, you face any or all of the following penalties:

   • California misdemeanor probation (informal probation), which is typically imposed for up to three years,

   • up to six months in the county jail,

   • a maximum fine of $1,000,

   • successful completion of a batterer’s program, and/or

   • community service.

Beware, if the assault or battery was on a California police officer (or other "protected person") the sentence can be significantly increased.

How can the Law Offices of David J. Givot defend a California Assault Allegation?

An arrest is NOT a conviction!

There are several defenses that may be available.

Inability to Carry Out the Assault

A California Penal Code §240 PC assault necessarily includes a "present ability" to commit a violent injury upon another. This means that you are not guilty of assault if your act can’t be carried out.

Self-Defense or Defense of Others

California self-defense law provides that if you have a reasonable and honest belief that you or another person is about to be seriously hurt by another, you are allowed to "reasonably" fight back.

Lack of intent

If you didn’t "willfully" intend to commit a violent injury upon another, you aren’t guilty of a California "assault" under California Penal Code §240.

False Charges or Wrongful Accusations

Because there is no requirement that the alleged victim suffers an actual injury under Penal Code §240, it is a crime that is easily falsely reported out of anger, revenge or jealousy.

The bottom line is this: An assault may seem relatively minor, but it can create some very serious complications in your life. You have the right to an attorney and it is a right you should take seriously.

If you have any questions about Assault in California or if you or a loved-one has been accused, contact the Law Offices of David J. Givot right away.