Vista and San Diego Assault Defense Lawyer

What Is Assault Under California Law?

At its most basic, assault is defined under California Penal Code 240 (PC)² as “an unlawful attempt, combined with a present ability, to inflict violent injury on another person.” In other words, to secure an assault charge, the prosecution must prove the defendant made a credible, immediate threat or attempt to harm another person physically.

Examples of assault include:

• Throwing a punch and missing
• Kicking at someone to intimidate them
• Trying to trip someone
• Getting close to someone’s face and threatening to punch them (threats to cause great bodily injury without a physical action may be filed as criminal threats)
• Intentionally spitting on the ground at someone

Note that when force is actually applied, the act is charged as battery, under 242 (PC)³. Actions that would be considered battery, rather than assault, include:

• Successfully throwing a punch
• Kicking someone
• Spitting on another person or in their food
• Shoving another person
• Poking someone in an attempt to start a fight

Learn more about the difference between assault and battery.

Simple Assault vs. Aggravated Assault

Whereas simple assault can be filed when someone intentionally attempts to touch or harm another person, aggravated assault is used to describe more serious circumstances that could result in additional penalties. These offenses largely fall under Penal Code 245 (PC) and include assault with a deadly weapon, assault with a firearm, and assault by means of force likely to produce great bodily injury. The specific subsection and potential penalties depend on the weapon or method allegedly used and the circumstances of the incident.

The term “aggravated assault” is commonly used to describe more serious assault offenses, but it is not itself the name of a single California Penal Code offense. Depending on the circumstances, an offense filed under 245 (PC) may be charged as either a misdemeanor or a felony.

Examples of aggravated assault include:

• Waving a weapon at another person (this charge may also be filed as brandishing a weapon)
• Aiming a firearm at someone
• Attempting to push someone off of a tall building

In many cases, the line between simple assault and aggravated assault is very fine, and your defense attorney may be able to help ensure the crime is charged as a simple assault so you can face less severe penalties.

Assault With a Deadly Weapon: Penal Code 245(a)(1) (PC)

“Under California Penal Code section 245(a)(1) (PC), a deadly weapon can be any object that is inherently deadly or an item used in a way that makes it capable of producing force likely to cause great bodily injury or death,” explains Liss. “Firearms are covered in a separate subsection of the law, under 245(a)(2) (PC).”

Obvious examples of “deadly weapons” under 245(a)(1) (PC) include a sawed-off shotgun, knife, or brass knuckles, but a deadly weapon could also be a vehicle, steel-toed boots, a screwdriver, or a rock if any of these objects are used aggressively with enough force to cause serious injury. Even siccing a dog on someone can be considered assault with a deadly weapon.

Assault With a Firearm: Penal Code 245(a)(2) (PC)

When assault with a deadly weapon involves a firearm, it is charged under a distinct section of the law, 245(a)(2) (PC). Higher penalties may apply under 245(a)(3) (PC) and 245(b) (PC) if the firearm was a machine gun, an assault rifle, a .50 BMG rifle, or a semi-automatic firearm.

Assault by Means Likely to Result in Great Bodily Injury: Penal Code 245(a)(4) (PC)

Aggravated assault charges may also be applied in cases that do not involve a weapon, if the offense involved a means of force that was likely to cause bodily injury. For example, if someone unsuccessfully attempted to push someone in front of a train.

“Although Assault doesn’t require any actual touching, the District Attorney commonly files 245 (PC) charges when the victim was also battered during an assault,” explains Liss.

Assault With a Caustic Chemical: 244 (PC)

Many caustic chemicals are potentially deadly, but they are filed under a distinct penal code from assault with a deadly weapon. Under 244 (PC)⁴, throwing or placing sulfuric acid, corrosive acid, flammable liquids, or caustic chemicals at another person with the intent to cause injury or disfigurement is a felony.

“Note that the chemical does not need to make contact with the intended victim or cause harm,” says Liss, “it just needs to be thrown at or placed on them.”

Assault Against a Peace Officer: Penal Code 241(c) (PC)

California law provides enhanced penalties for assaults against peace officers, firefighters, emergency medical technicians, lifeguards, and other protected individuals. Simple assault against a protected victim is a misdemeanor under 241(c) (PC), while more serious allegations involving a deadly weapon or firearm may be felonies, prosecuted under 245 (PC).

The circumstances matter, including the victim’s occupation, whether the person was performing their duties, and other circumstances.

Learn more about assault against a peace officer.

Penalties for Assault in California

Simple assault is always a misdemeanor, whereas aggravated assault can be a misdemeanor or a felony depending on the specific charge, the potential risk to the victim, the defendant’s criminal background, and the exact circumstances of the incident. While charging decisions are at the District Attorney’s discretion, a defense lawyer can sometimes convince them to file a lesser charge or a misdemeanor charge instead of a felony.

Simple Assault

Penalties for offenses filed under 240 (PC) are detailed under Penal Code 241 (PC)⁵ and include a maximum sentence of:

• A jail sentence of up to six months
• Fines of up to $1,000

Aggravated Assaults

Aggravated assault charges filed under 245(a)(1) and 245(a)(4) (PC) are punishable by up to:

• Four years in prison if charged as a felony
• One year in jail if charged as a misdemeanor
• Fines of up to $10,000

Vehicular assault is a unique form of assault. While these offenses are charged as assault with a deadly weapon, they can also result in a driver’s license suspension or even a permanent license revocation for felony offenses.

Learn more about lifetime license revocations.

Assault with a Firearm

Assaults filed under 245(a)(4) (PC) are typically punishable by up to $10,000 in fines and a 4-year prison sentence when charged as a felony, or a 1-year jail sentence if charged as a misdemeanor.

However, assaults committed with a semiautomatic firearm are punishable by up to nine years in prison. When the crime involves a machine gun, assault weapon, or .50 BMG rifle, the maximum penalty goes up to 12 years.

Assault Against a Peace Officer

Simple assault against a peace officer is punishable by up to one year in jail and a fine of $2,000.

Aggravated assault against a peace officer carries lengthier penalties depending on whether a weapon was used and, if so, what type. Assault with a deadly weapon against a peace officer is punishable by up to five years, but assault with a firearm brings the maximum sentence to eight years or more depending on the exact type of firearm.

Assault and the Three Strikes Law

Some serious felony assault convictions can qualify as strikes under California’s Three Strikes law. Whether a particular assault conviction counts as a strike depends on the specific offense, subsection, and circumstances of the case.

When a defendant with a prior strike faces a second strike, their sentence can be doubled. If they have two prior strikes, they could be sentenced to life imprisonment.

Learn more about the three strikes law.

Defenses to Assault Charges

There are many defenses your San Diego assault attorney may use while representing you. Remember that anything you say can be used against you. Invoke your Fifth Amendment rights when approached by police, as statements made to officers can be used as evidence against you.

Possible defenses to assault allegations include:

Insufficient Evidence

To prove the charges against you, the prosecution needs to show that you met all the elements of the charge. Specifically, they must be able to prove that:

• You threatened to use or attempted to use force against another person,
• You had a realistic ability to use the threatened or attempted force, and
• The threat or attempt to use force was illegal.

“Even when there is sufficient evidence, your attorney may be able to weaken the prosecution’s case by filing motions to suppress improperly collected evidence,” suggests Liss.

Lack of Present Ability

Simply threatening someone is not enough to be considered assault if you lacked the ability to follow through with the threat immediately. If a paralyzed man could not realistically punch someone, for example, threatening to do so would not meet the standard for assault.

Assault with a deadly weapon charges require the prosecution to show an object could be used to meet the standards for these more serious charges. For example, if someone with a broken arm puts brass knuckles on their injured arm, it would be unlikely they would be found guilty of assault with a deadly weapon, since they could not realistically cause great bodily injury. However, this individual could still be charged with simple assault and possession of an illegal weapon.

Lack of Intent

A strong defense is to argue the incident was simply an accident, as assault must be intentional. For instance, swinging a bat at someone’s head intentionally is a crime, but swinging a bat in a batting cage without realizing someone walked right behind you is not. If someone injures another through preventable negligence, that may still be addressed in civil court.

The Threat or Attempt to Use Force Was Legal

Not all threats are criminal, nor are all attempts to use force. Attempting to punch an opponent as part of a martial arts class, for example, is not a crime. Similarly, if someone jokingly makes a series of exaggerated threats against performers in a comedy roast, it would not be illegal.

Self-Defense

In California, if someone threatens you, another person, your property, or your home, you have the right to defend yourself. Self-defense is a full defense, meaning you will be cleared of the charges completely if your attorney can show that you:

• reasonably believed you were in immediate danger
• recognized that immediate force (or threat of force) was necessary
• used the minimal amount of force required to defend yourself

Learn more about California’s self-defense laws.

False Accusations

It is not uncommon for individuals to be wrongly accused of violent crimes, particularly when the evidence is based on conflicting participant statements. In many instances, an alibi, witness, or video evidence may help disprove the allegations.

Reducing the Charges or Sentence in a Plea Bargain

If you can’t avoid assault charges altogether, your lawyer may be able to negotiate a plea bargain with the San Diego District Attorney to minimize the charges or sentencing you will face.

For aggravated charges, the best option is often to fight for reduced charges to prevent a strike on your record and reduce your potential maximum sentence. In 245(a)(4) (PC) charges, this can sometimes involve arguing that there was no means of causing great bodily injury.

In other cases, especially for simple assault, your attorney may work to secure a diversion program or summary probation. These options may reduce your potential time behind bars, but a diversion program can keep you out of jail and prevent the charge from appearing on your criminal record.

Related Assault Charges and Offenses

Those accused of assault may also face other criminal charges as well. Common criminal offenses charged along with this crime:

• Battery
• Brandishing a firearm
• Criminal threats
• Domestic violence
• Hate crimes
• Gang crimes
• Resisting arrest

Call a Vista Assault Defense Lawyer Today

If you have been accused of assault in North County San Diego, please contact attorney Peter M. Liss. He has over 40 years of experience fighting charges like these. You can schedule a free consultation to discuss the best defense for your situation by calling (760) 643-4050.