California law criminalizes assault, which is defined in Penal Code section 240 as an unlawful attempt to commit a violent injury on a person coupled with the present ability to do so.
If you have been accused of assault, you could face time in jail as well as other penalties.
At our law firm, we work with clients to fight back against assault charges in California. Our team has helped many clients receive a favorable disposition to their case, but the sooner we can get started the better.
Contact one of our California assault attorneys today.
What is Assault under California Law?
Penal Code section 240 sets forth the crime of assault. Under section 240, assault is an attempt to inflict a violent injury upon another person.
The statutory definition of assault can be confusing. However, California’s criminal jury instructions spell out what an assault means. According to California’s jury instructions, an assault occurs when:
- The defendant took some
actaction that was likely to result in force being used against someone;
- The defendant took this action willfully;
- The defendant knew that a reasonable person would believe that they were about to get hurt as a result of the act; and
- The defendant had the ability to apply force when he or she acted.
California’s criminal jury instructions also set forth a second theory of assault. Under this theory, an assault occurs when one person threatens another with harm to compel the victim to do something.
This alternate theory of assault is known as a conditional threat to use force.
What Are Some Examples of Assault?
The terms “assault” and “battery” do not mean the same thing. Battery is a distinct crime from assault, even if the two terms are often used together.
Under Penal Code section 243, the crime of battery refers to a harmful or offensive touching of another person. By contrast, a person can commit an assault without ever touching another person.
To illustrate, here are several examples of conduct that could lead to a California assault charge:
- Children throw rocks at people walking by their home;
- Two people get into an argument in a parking garage, and a driver takes a swing at the other, who ducks to avoid getting punched; and
- Two people grab the last big-screen TV on a Black Friday doorbuster sale and one tries to kick the other person away.
In each of these examples, the defendant attempted to cause a violent injury to another person and also had the ability to inflict force.
However, there are some situations that are not assault. Shouting angry words at a person from across the room is not assault.
Likewise, threatening someone on a social media account is not an assault (though it may be another crime). In these examples, the aggressive person has no present ability to inflict force on a person.
Similarly, a person who turns around quickly and slams their shoulder into another person’s face has also not committed an assault.
Their actions were purely accidental and not undertaken willfully, even if the victim suffers serious injuries.
What is Felony Assault in California?
Simple assault is a misdemeanor. However, an assault becomes a felony when there are aggravating circumstances present. Aggravating circumstances include:
- The defendant used a deadly weapon, like a gun or knife, to commit the assault; or
- The defendant committed the assault with the intent to commit another felony, such as rape or murder.
You can find the aggravated assault statute in Penal Code section 245.
What Are the Punishments for Assault and Aggravated Assault?
Simple assault in California is a misdemeanor offense. The penalties include:
- Up to 6 months in county jail, and
- A fine of up to $1,000.
The fine could increase to $2,000 if the victim of the crime was a police officer, firefighter, doctor, nurse, correctional officer, teacher, or other protected employee.
However, the crime must occur when the person is performing their professional duties. The increased fine does not apply if the alleged victim was not acting in a professional capacity at the time of the assault.
If a defendant is convicted of aggravated assault, the prosecutor gets to choose whether to charge as a misdemeanor or a felony.
A misdemeanor aggravated assault carries the following penalties:
- Up to a year in jail, and
- A fine of up to $1,000.
A felony conviction carries even more severe penalties, including time in California prison. For example, an assault by means of a firearm carries a minimum of six months in jail, with a maximum jail sentence of one year.
Notwithstanding, you face between two to four years in prison if the prosecutor chooses to pursue felony charges.
The possible penalty increases if the prosecutor alleges an assault by means of a semi-automatic firearm. This crime is not a “wobbler” where the prosecutor can ask for either a misdemeanor or a felony charge.
Assault by means of a semi-automatic firearm is a felony that carries a prison sentence of either three, six, or nine years.
The penalty could increase to as much as 12 years in prison if the assailant used a machine gun or assault weapon.
Penal Code section 245 increases the possible incarcerated sentence for an aggravated assault if the alleged victim of the crime was a police officer or firefighter engaged in their professional duties when the crime occurred.
Additional Consequences of a Felony Conviction
A convict can also lose important civil rights, such as the right to vote or serve on a jury. Felons also lose their right to possess a firearm for life, while misdemeanor defendants lose the right for ten years.
California also enacted strict legislation that could incarcerate you for long stretches of time. Penal Code section 12022.53 is the state’s 10-20-Life law.
Some people know it as the “Use a Gun and You’re Done” law. This law could add 20 years to your sentence if you shoot at someone and carries life if you kill someone.
This sentence has to run consecutively to any sentence for an aggravated assault conviction.
Don’t forget the collateral consequences that follow any assault conviction. With a criminal record, many defendants struggle to find employment since the conviction shows up in a background report.
Are There Defenses to an Assault Charge?
Yes. Some of the most successful defenses include:
- Self-defense. A person can use self-defense if they reasonably believe they or another person is about to suffer a bodily injury and they believe that self-defense is necessary to avoid the danger. The person can only use the amount of force that is reasonably necessary to defend against the attack.
- Lack of intent. The defendant might have injured someone accidentally or involuntarily.
- Lack of present ability to harm. The defendant might have been too far away to actually violently injure a person.
- Mistaken identity. The police might have picked up the wrong person for the crime.
The prosecutor always has the burden of proof and needs to prove simple or aggravated assault beyond a reasonable doubt. If they fail to do so, then the defendant cannot be convicted.
We can’t talk about defenses without pointing out that the victim does not actually need to be injured. It’s enough that the defendant could have inflicted violent injury.
Pointing out the victim walked away unscathed is not a good defense.
California Assault Charge Defense
Attorney Kerry L. Armstrong holds a criminal law legal specialization certificate granted to him by the State Bar of California’s Board of Legal Specialization.
This is a rare achievement. Kerry took a second, specialized Bar exam and passed it to earn this distinction.
He and his award-winning team of attorneys at the Law Offices of Kerry L. Armstrong, APLC, have well over 100 trials under their belts.