What is Assault Under California State Law?
California Penal Code 240 (PC) defines assault as “an unlawful attempt, combined with a present ability, to inflict violent injury on another person.” Simply put, assault is making a realistic threat or attempting to use force against another person. If force is actually applied, the act is charged as battery, under 242 (PC).
Examples of assault include:
- Throwing a punch and missing
- Threatening to punch someone (threats that involve great bodily injury may be filed as criminal threats)
- Challenging someone else to throw a punch at you
- Spitting on the ground in front of someone
Some types of assault are considered more serious than others. Examples of aggravated assault (more on this charge, filed under 245 (PC), here) include:
- Waving a weapon at another person (this charge may also be filed as brandishing a weapon)
- Throwing dangerous chemicals at someone else
- Assaulting a police officer, firefighter, or other protected worker
Actions that would be considered battery, rather than assault, include:
- Throwing a punch
- Spitting on another person or in their food
- Shoving another person
- Poking someone in an attempt to start a fight
What are the Penalties for Assault Charges Under California Law?
Charges filed under 240 (PC) are considered simple assault, and the penalties for this offense are detailed under Penal Code 241 (PC). Simple assault is always a misdemeanor, punishable by no more than six months in jail and a fine of $1,000.
Often, a defense lawyer can secure a diversion program or summary probation for clients accused of assault. Both options may help clients avoid jail, but a diversion program can also prevent the charge from appearing on their criminal record.
When charges involve assault against a protected victim, such as a first responder, the maximum sentence goes up to 1 year in jail.
Aggravated assaults that involve a deadly weapon (including a vehicle) or caustic chemical can be filed as either a felony or misdemeanor. Typically, the maximum penalty for these charges is up to four years in prison. However, in some cases, such as when a machine gun or assault rifle was used, the penalty can go as high as 12 years.
Common Defenses for Assault Charges in San Diego
There are many defenses your San Diego assault attorney may use while representing you. Remember that anything you say can be used against you. Always invoke your Fifth Amendment rights when you are approached by police, or you may harm your defense later on.
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
- The threat or attempt to use force was illegal
For example, if someone in Santa Cruz called and threatened to punch someone in San Diego in the face, despite not knowing where they live or what they look like, the threat would not be considered credible. Similarly, if a UFC fighter punches an opponent in the ring, it isn’t a crime because it’s part of a legal sporting event.
Lack of Intent
Assault must be intentional. If a boxer nearly punches someone in the face while practicing, it would be a simple accident, not assault.
Self-Defense
In California, when someone has threatened 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 you are able to show that you:
- reasonably believed you were in immediate danger
- thought immediate force (or threat of force) was necessary
- used only the reasonable amount of force required to defend yourself
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 or video evidence may help disprove the allegations.<
Plea Bargains
If you can’t realistically 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.
Frequently Asked Questions About California Assault Charges
Is Assault a Felony or Misdemeanor Under California Law?
Simple assaults, filed under 240 (PC), are misdemeanors. However, when the offense involves the use of a weapon, vehicle, or caustic chemical, it may be filed as a felony or misdemeanor.
What Should I do if I’m Accused of Assault?
The smartest response after an assault accusation is to remain silent and request an attorney. Your lawyer may challenge the prosecution’s evidence or gather witness statements and surveillance footage to support your defense.
How Does Assault Differ From Battery?
While the public often uses these two words interchangeably, assault and battery are legally distinct in California. Assault involves the attempt or threat to use force against another person without actual contact, while battery occurs when physical force is actually used. We cover the topic in more detail elsewhere on our blog.
Is Poking Someone Assault or Battery?
While a small poke might not cause injury, it is still considered battery because it involves the use of physical force.
Call a Vista Assault Defense Lawyer Today
If you have been accused of assault in North County, please contact attorney Peter M. Liss, who has 40 years of experience fighting charges like these. You can schedule a free consultation by calling (760) 643-4050 or (858) 486-3024.
