Everything You Need To Know About Misdemeanor Assault Laws

California Penal Code 240

Celebrity Attorney Diana Aizman Providing Legal Analysis

Oscar Pistorius Case
Hannah Graham Case Analysis By Diana Aizman
Aaron Hernandez Trial
Robert Kirk Murder
Geraldo Interview
David Barajas Case

What is “Assault”?

The willful application of force that you knew would likely result in a bodily injury to another is an assault.1

Penal Code 240

Assault under penal code section 240 pc is defined as an unlawful attempt, coupled with a present ability, to commit a violent injury to another.2

Penalties For Assault

The following punsishment can be imposed under Penal Code 240 for simple assault.  Assault for special persons including peace officers may have different fines and or maximum imprisonment length.

  • Not to exceed a $1,000 fine.
  • Imprisonment in the county jail not to exceed 6 months.
  • Both a fine and imprisonment.

Legal Defenses To Assault

There are various defenses that can be asserted on your behalf to fight a charge of assault.  Here are the most common ones:

  • Inability to Carry Out the Threat of Harm: One of the elements of assault is that the defendant has a present ability to apply force likely to cause harm to another person.  Therefore, if the defendant does not have this ability, he/she cannot be charged with an assault.

Example: A woman who claims to have a weapon, but in reality does not have one, cannot be charged with assault based on the threatened harm using the non-existing weapon.

  • Self-defense/Defense of Others:  If the defendant committed an act that is likely to result in harm to another is because he/she acted in self-defense or defense of others, he/she cannot not be convicted of assault.  To assert this defense, the defendant has to have a reasonable belief that he/she or another person is likely to be physically harmed and is justified in using force that is proportionate to the threatened force to repel the attack.
  • Lack of Intent: If you did not “willfully” intend to commit the act that injured another person, you are not guilty of “assault. 

Example: James walked into a liquor store with his hand in his pocket.  He told the store owner to empty out the register into a bag or he will shoot him in the face.  In reality, James did not have a gun.  Because he did not have a gun, he did not intend to shoot the store owner.  Therefore, he cannot be convicted of assault.

  • Falsely Accused/Mistaken Identity:  If you were falsely accused of committing an assault, you need a good attorney who can find any inconsistencies in the evidence to show that you were not the perpetrator of the crime.  The Aizman Law Firm is ran by a former prosecutor who knows how to investigate such cases and to provide the best defense possible.  If you were falsely accused and need help getting out of the situation, do not hesitate to give us a call.
  • Voluntary Intoxication – is not a defense to assault: In California, a defendant who commits an assault while intoxicated cannot claim voluntary intoxication as a defense.  The reasoning behind the law is that defendants know (or should know) that alcohol and drugs affect mental functioning, and holds them legally responsible if they commit crimes as a result of their voluntary use.  However, if a defendant can show that he/she was involuntarily intoxicated, the defendant will not be found guilty of the assault because he/she did not choose to consume the intoxicating substance.

Example: A man walked up to a woman in public and swung at her with an umbrella.  The woman, fearing for her safety, punched the man in the face.  The man is guilty of assault, because he intended to swing the umbrella at the woman, knowing that if the umbrella actually hit the woman, it would likely result in a bodily injury to her.  However, the woman would not be convicted of assault or battery because she rightfully acted in self-defense.

In Recognition Of Our Work, We Have Been Awarded

How Does The Prosecutor Prove Assault Under PC 240?

jury

To prove that the defendant is guilty of assault under PC 240, the prosecution must prove the following facts or elements:3

  • The defendant did an act that by its nature would directly and probably result in the application of force to a person, that would likely cause great bodily injury4
  • The defendant’s act was willful5
  • When the defendant acted, he/she was aware of facts that would lead a reasonable person to realize that his/her act by its nature would directly and probably result in the application of force to someone;
  • When the defendant acted, he/she had the present ability to apply force likely to cause harm to another person.

Who Can Be Charged With Assault Under PC 240?

A defendant can only be charged with assault if he/she had the present ability to carry out his/her threat of harm to another person.  Moreover, the defendant’s act was willful, meaning the defendant intended to carry out the act.  Any touching may qualify, no matter how slight, whether it was direct or indirect (i.e. touching that occurred when defendant used another instrument, or another person).

Example: John, a homeless man, who has not eaten for days, was looking for someone to give him either food or money to buy food.  When he saw a woman pull up in her car, he asked her for food or money, but she refused to offer him either one.  When she opened the car door and got out of the car, he noticed a grocery bag full of food in the passenger side.  Frustrated and angered by the woman’s refusal to offer him any help, the man wanted to throw his shoe at her.  He took off his old, dirty, and torn up shoe and swung it in the air as if he was going to throw it really hard at the woman.  The shoe was falling apart and as the man swung it back and forth once, the shoe soul came off and hit the woman in the face.  Scared that the man is going to throw the rest of the shoe at her and possibly attack her, the woman screamed and ran towards the park, leaving her car door wide open.  John can be charged with assault because he intended to harm the woman with his shoe.  Even though the only contact occurred was with his shoe soul, such slight contact qualifies for an assault charge.

Misdemeanor Assault or Felony?

In California, simple assault is a misdemeanor. Simple assault is not the only type of assault.  Assault with a Deadly Weapon, can be charged as a felony or as a misdemeanor depending on the facts of your case. Either charge can have very serious consequences including potential jail or prison time and probation or parole.

Related Articles

Related Offenses

Penal Code 242 PC Battery

Penal Code 242 PC – California’s “Battery” Law: California’s law on battery, a defendant is guilty of battery if the defendant willfully and unlawfully touched another person in a harmful or offensive manner and as a result, the other person suffered a serious bodily injury. 6  The distinction between assault and battery is that the former is an attempt to commit the latter.  In other words, an assault may result without physical contact or a battery, whereas a battery cannot occur without an assault.

Penal Code 245© Assault with Deadly Weapon

Assault With Deadly Weapon/Instrument on Peace Officer/FirefighterUnder Penal Code section 245(c), a defendant who commits an assault with a deadly weapon or instrument, other than a firearm, or by any means likely to produce great bodily injury upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for three, four, or five years.  ((Penal Code 245(c).))

Penal Code 245(d) Assault with firearm on a Peace Officer or Firefighter

Assault with Firearm on Peace Officer/Firefighter:  Under Pen. Code,  section 245(d), a defendant who commits an assault with a firearm on a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, will be punished by imprisonment in the state prison for up to four, six, or eight years. 7

How We Can Help

An attorney at the Aizman Law Firm has the experience, knowledge and resources necessary to get you the best result possible in your case. We have assembled the industry’s most elite team of former prosecutors, experts, investigators, and researchers to successfully defend your rights and fight for you. If you need an assault defense attorney please contact us immediately for a free consultation 818-351-9555.

Diana Aizman
Founding Attorney
(818) 351-9555
Blithe Leece
Attorney
818-351-9555

Request A Free Consultation 818-351-9555 

Footnotes

  1. California Penal Code 240 PC — Assault. An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” []
  2. Penal Code 240  Assault. “Definition of Assault An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” []
  3. Penal Code section 240. []
  4. The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way.  Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.  The touching can be done indirectly by causing an object, or someone else, to touch the other person. []
  5. Someone commits an act willfully when he or she does it willingly or on purpose.  It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.  The prosecution is not required to prove that the defendant actually intended to use force against someone when he/she acted or to injure the other person []
  6. Penal Code 242 []
  7. Penal Code, section 245(d). []