California law defines an "assault" under Penal Code 240 PC as an unlawful attempt -- coupled with a present ability -- to commit a violent injury upon another person.
Simply put, it means performing an act that is likely to result in the application of force to another person.
Because California assault law doesn't require an actual injury, it's easy for people to be falsely accused of (and wrongfully arrested for) this offense. As former prosecutors and law enforcement officers, we understand exactly how to investigate...and, more importantly, defend...against these types of bogus assault charges.
To help you better understand what constitutes an assault, our Los Angeles criminal defense attorneys will answer your most frequently asked questions about California assault law by addressing the following:
(click on a title to proceed directly to that section)
If, after reading this article, you have additional questions, we invite you to contact us at Shouse Law Group.
You may also find helpful information in our related articles on Penal Code 245(a)(1) Assault with a Deadly Weapon, Penal Code 242 Battery, California Assault on a Peace Officer, California Self-Defense Law, and California Probation Law.
The California crime of "assault" takes place 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. It is only necessary that you
- attempted to commit such an act, and
- had the ability to do so.
Originally enacted in 1872...and unchanged since then...California Penal Code 240 PC is a misdemeanor. Prosecutors typically charge this "simple assault" crime when the alleged victim doesn't suffer a significant injury. If a weapon is used or a significant injury occurs, then one of the more serious crimes (described below) is likely to be charged.
Penal Code 245 assault with a deadly weapon
- you use a deadly weapon or other instrument capable of producing great bodily injury, and/or
- the alleged victim is seriously injured.
Assault with a deadly weapon is obviously the more egregious charge, reserved for the more serious assault cases. If prosecutors originally file an ADW charge, your criminal defense attorney will generally try to get the charge reduced to simple assault, if not dismissed entirely.
∗This article primarily focuses on the issues involved with a California "simple assault".
Many people think of "assault and battery" as one crime, and the terms "assault" and "battery" often do get used interchangeably. But the fact is assault and battery are actually quite different.
Stated in Penal Code law 242 pc, the California crime of battery takes place when you actually use force or violence against another person. Unlike an assault, battery is more then merely an attempt to inflict harm.
As San Bernardino criminal defense attorney Michael Scafiddi explains, "The easiest way to distinguish the crimes is this: an assault doesn't necessarily involve any actual physical contact -- whereas a battery does. Put another way, an 'assault' is an 'attempted battery', and a 'battery' is a 'completed assault'".
In order to convict you of "simple" or "misdemeanor" assault in California, the prosecutor must prove the following three facts (otherwise known as "elements" of the crime):
- that you "willfully" acted in a way that would likely result in the "application of force" to another,
- that you were aware that your "act" would likely result in that application of force, and
- that when you "willfully acted" you had the ability to follow through with the act that would cause that contact.
Let's take a closer look at what these terms mean.
Definition of terms under California assault law
"Willful" means intentional, as opposed to accidental. It does not mean that you necessarily
- intended to injure the other person, or
- intended to break the law.
Example: Joe, upset that Betty was yelling at him in front of his friends while they were watching the big game, threw the remote control in her direction. Although Joe didn't intend to hit Betty with it...he just wanted to scare her so that she'd leave...he acted "willfully" when he threw the remote.
Application of force
"Application of force" means any touch...no matter how slight...if the touch is done in an angry, harmful, or even offensive manner.
The contact can be through one's clothing or even indirectly through an object or another person. The physical contact doesn't have to result in any pain or injury. Simply "spitting" on another would suffice.
It bears repeating that California assault law does not require that you actually make physical contact with another person. All that is necessary is that you have the intent and ability to injure that individual.
Example: Bob took a swing at Pete, but missed because Pete "ducked". Even though there was no contact, prosecutors could still charge Bob with Penal Code 240 PC assault. If Pete hadn't ducked, Bob's act of "swinging" would have likely resulted in an injury.
You were "aware" that your act would likely result in harm
Assault requires an actual knowledge that your act will likely result in harm to another person. You must be acquitted of this charge if neither you, nor a "reasonable person" could have expected your act to injure another.
The bottom line is that accidental and/or unforeseen injuries do not rise to the level of criminal liability that is required under California assault law. But intentional acts that are likely to result in harm do.
Example: Firing a gun in a populated area is likely to result in a violent injury upon another person (even if you aren't aiming at anyone). Committing such an act could subject you to an assault charge.
However, let's say that you are "target" shooting in a remote area, designed for such use. If a bullet ricocheted off of a tree and hit someone in the leg, you would not be guilty of assault, since that would be an accidental (and unlikely) result.
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 (otherwise known as "summary" or 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.
It should be noted that an assault or battery on a California police officer (or other "protected person") will trigger an increased sentence.
Just because you've been arrested for assault doesn't mean you'll be convicted of assault. There are a number of defenses that a California criminal defense attorney can present on your behalf. The following are examples of some of the most common.
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.
Example: During an argument, Chris threatens to shoot Ryan in the head, even though Chris doesn't have a gun. Because Chris doesn't have the actual ability to shoot Ryan, he has not committed an assault.
Prosecutors could, however, charge Chris with California Penal Code 422 "criminal threats" for threatening such an act.
If, while Chris and Ryan were arguing, instead of threatening to shoot Ryan, Chris (who was really drunk) took a swing at Ryan (and missed), he could still be charged with assault.
Looking at this last example, even if Chris didn't have the physical ability to connect his punch...because he was so drunk...he could still be charged with assault, because voluntary intoxication doesn't excuse a California assault or battery.
Self-defense / 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.
Example: Steve is "beating up" Tom's friend, Dan. In an effort to protect Dan, Tom threatens to (and does) punch Dan in the face. Under normal circumstances, Tom could be arrested for assault and battery. However, because he "reasonably" defended Dan, a skilled California criminal defense lawyer should be able successfully to plead defense of others on his behalf.
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 PC.
Taking an example from above, when Chris threatened to shoot Ryan in the head (knowing that he didn't have a gun), he clearly didn't have the "intent" to commit a violent injury upon Ryan. Yes, he intended to scare or threaten Ryan. But he didn't have the necessary intent to commit the crime of assault.
False charges / wrongful accusations
Because there is no requirement that the alleged victim suffers an actual injury under Penal Code 240 PC, it is a crime that is easily falsely reported out of anger, revenge or jealousy.
"False accusations are frequently charged in assault cases where there are no injuries or eyewitnesses" says San Francisco defense attorney Jim Hammer. "It never ceases to amaze me how many people are wrongly arrested for assault based on an incident that never took place".
For more information about California assault law, or to discuss your case with one of our criminal defense lawyers, please don't hesitate to contact us at Shouse Law Group.
Our California criminal law offices are located in and around Los Angeles, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
Our Nevada criminal defense lawyers have offices located in Las Vegas and Reno. We have extensive experience defending clients charged under Las Vegas Nevada Assault & Battery laws. Nevada "assault" laws are modeled on the California statute, and operate very similarly.
- California Penal Code 240 PC -- Assault. ("ASSAULT DEFINED. An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.")
- Our Los Angeles criminal defense attorneys have offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.
- California Jury Instructions - Criminal. CALJIC 9.00 "Assault". ("To constitute an assault, it is not necessary that any actual injury be inflicted.")
- See California Penal Code 240 assault, endnote 1, above.
- People v. Williams (2001) 26 Cal.4th 779, 784. ("[California Penal Code] Section 240-unchanged since its initial enactment in 1872-defines assault as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another."
- California Penal Code 241 -- Assault, punishment. ("(a) An assault is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or by both the fine and imprisonment.")
- California Penal Code 245 -- Assault with a deadly weapon "ADW". ("(a)(1) Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.")
- California Penal Code 242 -- Battery. ("Battery defined. A battery is any willful and unlawful use of force or violence upon the person of another.")
- San Bernardino criminal defense attorney Michael Scafiddi, a former Ontario police officer, represents clients in the San Gabriel Valley and Inland Empire, including Palm Springs, Hemet, Riverside, and San Bernardino.
- Judicial Council of California Criminal Jury Instruction (CALCRIM 915 -- Assault). ("To prove that the defendant is guilty of this crime, the People must prove that:  The defendant did an act that by its nature would directly and probably result in the application of force to a person; The defendant did that act willfully;  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; [AND]  When the defendant acted, (he/she) had the present ability to apply force to a person(;/.) <Give element 5 when instructing on self-defense or defense of another.>[AND]  The defendant did not act (in self-defense/ [or] in defense of someone else).]")
- See same. ([With respect to a California assault], "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.")
- See same. ("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.
- See People v. Williams at 790, endnote 5, above. ("Accordingly, we hold that assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.")
- See same at 787. ("Recognizing that Colantuono 's language may have been confusing, we now clarify the mental state for assault. Based on the 1872 definition of attempt, a defendant is only guilty of assault if he intends to commit an act "which would be indictable [as a battery], if done, either from its own character or that of its natural and probable consequences." (1 Bouvier's Law Dict., supra, at p. 166.) Logically, a defendant cannot have such an intent unless he actually knows those facts sufficient to establish that his act by its nature will probably and directly result in physical force being applied to another, i.e., a battery. (Cf. � 7, subd. 5 [actual knowledge means "a knowledge that the facts exist which bring the act or omission within the provisions of this code"].) In other words, a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known. He, however, need not be subjectively aware of the risk that a battery might occur.")
- See same at 788. ("Likewise, mere recklessness or criminal negligence is still not enough (see Colantuono, at p. 219, 26 Cal.Rptr.2d 908, 865 P.2d 704),FN4 because a jury cannot find a defendant guilty of assault based on facts he should have known but did not know (see Walker v. Superior Court (1988) 47 Cal.3d 112, 136, 253 Cal.Rptr. 1, 763 P.2d 852 ["criminal negligence must be evaluated objectively"] ). FN4. In stating that reckless conduct cannot constitute an assault, Colantuono relied on People v. Lathus, supra, 35 Cal.App.3d at page 469, 110 Cal.Rptr. 921, which in turn relied on our 1951 decision in People v. Carmen, supra, 36 Cal.2d at pages 775-776, 228 P.2d 281, which in turn relied on even older case law. Thus, Colantuono meant "recklessness" in its historical sense as a synonym for criminal negligence, rather than its more modern conception as a subjective appreciation of the risk of harm to another. (See Dressler, Understanding Criminal Law (2d ed. 1995) Mens Rea, � 10.04[D], pp. 115-116 ["In the past, 'recklessness' was a synonym for 'criminal negligence' "].)")
- See California Penal Code 241 -- Assault penalties, endnote 5, above. In addition to the penalties addressed therein, California probation law authorizes a judge to impose probation conditions that are related to the offense. It is under that authority that a judge could sentence a defendant to counseling services and/or community service. This discretion is found in California Penal Code 1203.1, which states that ("(j) The court may impose...other reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer...")
- California Penal Code 241 -- Assault, punishment. ("(b) When an assault is committed against the person of a parking control officer engaged in the performance of his or her duties, and the person committing the offense knows or reasonably should know that the victim is a parking control officer, the assault is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in the county jail not exceeding six months, or by both the fine and imprisonment. (c) When an assault is committed against the person of a peace officer, firefighter, emergency medical technician, mobile intensive care paramedic, lifeguard, process server, traffic officer, code enforcement officer, or animal control officer engaged in the performance of his or her duties, or a physician or nurse engaged in rendering emergency medical care outside a hospital, clinic, or other health care facility, and the person committing the offense knows or reasonably should know that the victim is a peace officer, firefighter, emergency medical technician, mobile intensive care paramedic, lifeguard, process server, traffic officer, code enforcement officer, or animal control officer engaged in the performance of his or her duties, or a physician or nurse engaged in rendering emergency medical care, the assault is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in the county jail not exceeding one year, or by both the fine and imprisonment.")
- California Penal Code 422 -- Criminal threats. ("Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.")
- People v. Hood (1969) 1 Cal.3d 444, 458. ("Accordingly, on retrial the court should not instruct the jury to consider evidence of defendant's intoxication in determining whether he committed assault with a deadly weapon on a peace officer or any of the lesser assaults included therein. People v. Fanning, supra, 265 Cal.App.2d 729, 71 Cal.Rptr. 641, and any case implying the contrary are disapproved.")
- Judicial Council Of California Criminal Jury Instruction 3470 -- Right to Self-Defense or Defense of Another (Non-Homicide). ("The defendant acted in lawful (self-defense/ [or] defense of another) if:  The defendant reasonably believed that (he/she/ [or] someone else/ [or] <insert name of third party>) was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully];  The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; AND  The defendant used no more force than was reasonably necessary to defend against that danger.")
- San Francisco defense attorney Jim Hammer uses his inside knowledge as a former San Francisco Deputy District Attorney to defend clients accused of California nursing home elder abuse throughout the Bay Area, including San Francisco, Oakland, Berkeley, Marin County and San Jose.