California Penal Code § 240 PC defines an assault as the unlawful attempt, along with the present ability, to cause a violent injury to another person. Simple assault is a misdemeanor punishable by up to 6 months in jail and fines of up to $1,000.00.1
Even though people often use the phrase “assault & battery,” assault and battery (as defined in Penal Code 242 PC) are actually two distinct crimes. The crime of battery consists of the actual use of unlawful force or violence against someone else (as opposed to just an attempt to do so).2
Examples
- After a man propositions her at a bar in a way she finds offensive, a woman throws the glass containing her drink at him;
- During a fight with a stranger over a parking space, a man swings at the stranger in an attempt to hit him, but the stranger ducks and avoids being hit; and
- Two teenagers throw rocks at their neighbor while she is gardening in her yard.
Penalties
Assault crime (PC 240) | Maximum penalties |
Simple assault | Misdemeanor: 6 months in jail and/or $1,0003 |
Assault on an officer or emergency professional engaged in their duties | Misdemeanor: 1 year in jail and/or $2,0004 |
Assault with a deadly weapon | Misdemeanor: 1 year in jail and/or $1,000 or Felony: 2, 3, or 4 years in jail5 |
Legal defenses
- You did not actually have the ability to inflict force/violence on the other person;
- You acted in self-defense or defense of someone else;
- You did not act willfully or with the required intent; and
- You were falsely accused.
In order to help you better understand California assault laws, our criminal defense attorneys discuss the following, below:
- 1. Legal definition of simple assault
- 2. Penalties for assault under PC 240
- 3. Defenses to assault
- 4. Related offenses
- 5. Can I be sued for assault?
- Additional reading
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
1. Legal definition of simple assault
The “elements” of assault (PC 240)—that is, the things that a California prosecutor must prove in order for you to be guilty of this offense—are as follows:
- You did an act that, by its nature, would probably result directly in the application of force to someone else;
- You did that act willfully;6
- When you acted, you were aware of facts that would lead a reasonable person to believe that the act would directly and probably result in the application of force to that person; and
- When you acted, you had the present ability to apply force to that person.7
Let’s delve a bit more deeply into these elements of the crime of assault to better understand their meaning.
Application of force
The definition of “application of force” is any harmful or offensive touching. The slightest touching will count if it is done in a rude or offensive manner.8
A California assault can occur even if the touching involved did not or could not cause any sort of injury. It does not need to be direct either—it can be done indirectly by causing an object to touch the “victim.”9
Example: At a store, Scott loses his temper and spits in the clerk’s face. There was no chance of him injuring the clerk by spitting in her face—but this may still count as an assault under California law.
Note that you do not need to actually have succeeded in applying force to the other person. All that is required is that you took some action that would probably have resulted in force being applied to them.10
Example: In the above example, let’s say that Scott is a few feet away from the clerk when he spits at her, and his saliva does not actually end up landing on her. Because it is likely that it would have, he may still be guilty of assault.
Willfully
You act “willfully” when you do something willingly or on purpose. You do not need to have intended to
- break the law,
- hurt anyone else, or
- gain any advantage.11
Example: Ricardo is ordered by his fraternity to tickle an unpopular professor. If Ricardo does, he could be arrested for assault even though he had no intention of hurting the professor. Tickling can be deemed an offensive touching.
Aware that the act might lead to the application of force
You do not need to have actually intended to use force against the “victim” for California assault laws to apply. You only need to have been aware that, under the circumstances, there was a good chance your actions would lead to force being applied.12
Example: One night Greg drives to Keith’s house. Keith comes outside and throws a bottle at the right rear fender of Greg’s truck while Greg is standing near the driver’s side door.
Keith did not intend to injure Greg—he just wanted to intimidate him. But because he was aware that he was near the truck, and thus that there was a good chance of him being injured by the bottle, he is guilty of assault.13
1.1. Difference between assault and battery
Penal Code 240 assault is an action that may inflict physical harm or unwanted touching on someone else. In contrast, Penal Code 242 battery is the actual infliction of force or violence on someone else.14
As San Bernardino criminal defense attorney Michael Scafiddi15 explains:
“The easiest way to explain the difference between assault and battery is this: an assault doesn’t necessarily involve any actual physical contact, whereas a battery does. Put another way, an assault is like an ‘attempted battery,’ and a battery is like a ‘completed assault.’”
2. Penalties for assault under PC 240?
PC 240 assault is a California misdemeanor. The potential penalties include:
- Misdemeanor (summary) probation ;
- Up to six (6) months in county jail; and/or
- A fine of up to one thousand dollars ($1,000).16
2.1. Assault on a law enforcement officer or emergency personnel
You face heightened penalties if you assault someone who is engaged in the performance of their duties as a
- Peace officer (police or other law enforcement),
- Firefighter,
- Emergency medical technician (EMT) or paramedic,
- Lifeguard,
- Process server,
- Traffic officer,
- Code enforcement officer,
- Animal control officer,
- Search and rescue member, or
- Doctor or nurse providing emergency medical care.17
If the assault victim falls into one of these categories—and you knew or reasonably should have known that they did—then the maximum county jail sentence increases to 1 year; and the maximum fine increases to $2,000.18
The maximum fine for assault also increases to $2,000 if the victim is a parking control officer engaged in the performance of their duties—for obvious reasons, a common potential target of assault!19
3. Defenses to assault
Here at Shouse Law Group, we have represented literally thousands of people charged with assault. In our experience, the following four defenses have proven very effective with prosecutors, judges, and juries.
3.1) You did not have the ability to inflict force or violence
Just because the alleged victim was frightened does not mean you had the ability to hurt them. With this defense, we rely on eyewitnesses and surveillance video to show that you were unable to inflict force on the “victim.”20
Example: When Chris and Ryan argue, their friends step in and pull them to separate sides of the room. From his side of the room, Chris swings his fist in Ryan’s direction. Chris is not guilty of assault because Ryan is so far away from him that there is no way he could have actually hit him.
3.2) You acted in self-defense/defense of others
We can claim self-defense/defense of others in your assault case when all of the following are true:
- You reasonably believed that you or someone else was in imminent danger of suffering bodily injury or being touched unlawfully;
- You reasonably believed that the immediate use of force was necessary to defend against that danger; and
- You used no more force than was reasonably necessary to defend against that danger.21
Example: One day Jim confronts Tom, who owes him money. Jim pokes Tom in the chest. Tom responds by pushing Jim. This is lawful self-defense because Jim was touching Tom unlawfully, and pushing Jim was a reasonable response to that touching.22
However, words alone—no matter how offensive—are not enough to justify an assault. We need to show there was something more to justify your – or someone else’s – fear of immediate bodily harm. 23
3.3) You did not act willfully or with the required intent
Maybe your actions were accidental, the result of a misunderstanding, or misinterpreted by the supposed “victim.”24 If this is the case, we would compile all the corroborating evidence – such as video surveillance, eyewitnesses, and recorded communications – to show that you did not act willfully.
3.4) You were falsely accused
Because there is no requirement that the alleged victim suffered an actual injury under Penal Code 240 PC, it is all too easy for one person to levy fake assault allegations at another. We see case after case where an aggrieved party falsely accuses our clients out of
- anger,
- jealousy, or
- desire for revenge.
When this happens, we gather evidence and interview witnesses to make sure the true story comes out. Often we can use the accuser’s own words (captured on text message, voicemail, or through eyewitnesses) against them.
4. Related offenses
4.1. PC 242 California battery/battery causing serious bodily injury
Battery (PC 242) differs from an assault in that it requires that you use force or violence against someone else, resulting in a harmful or offensive touching.25
However—as is the case with assault—you can be guilty of battery even if you did not actually inflict an injury on the supposed victim.26
4.2. PC 245(a)(1) assault with a deadly weapon
Assault with a deadly weapon (PC 245(a)(1)) is assault with either
- a deadly weapon (like a gun or knife), or
- other means of force likely to cause great bodily injury.27
Assault with a deadly weapon (also known as ADW) is a wobbler, with a maximum misdemeanor sentence of 1 year in county jail and a potential felony jail sentence of 2, 3, or 4 years.28
4.3. PC 415 disturbing the peace
Disturbing the peace (PC 415) makes it a crime to
- fight someone in public,
- make unreasonable noise so as to disturb others, or
- direct provocative “fighting words” toward another person in public.29
Disturbing the peace is considered a low-level misdemeanor.30 If you are charged with assault under PC 240 and the evidence against you is weak, the prosecutor may agree to reduce the charges to disturbing the peace.31
4.4. PC 217.1(a) assault on a public official
Assault on a public official (217.1 PC) consists of a simple assault committed against a public official, either in retaliation for or to prevent the performance of their official duties.32
Public officials include judges, prosecutors, public defenders and elected and executive officers of local, state and federal governments.37 Assault on a public official is a wobbler.33
4.5. PC 244 assault with caustic chemicals
Assault with caustic chemicals (PC 244) is a more serious, felony form of assault. It is throwing or placing any kind of caustic chemical on someone else’s body, with the intent to injure or disfigure them.34
4.6. VC 23110 throwing an object at a motor vehicle
Throwing objects at a motor vehicle (VC 23110) occurs when someone throws any object or substance at a motor vehicle that is on a public street.
Unlike assault, throwing an object at a motor vehicle does not require that you have the present ability to apply force to the victim. That is, you can be guilty of this crime even if there was no chance of the object you threw hitting the vehicle or its occupants.35
5. Can I be sued for assault?
Alleged assault victims can try to sue you for damages such as medical bills and lost wages.
You do not need to be found guilty in a criminal trial or even charged with a crime to be sued. In fact, you can have been found “not guilty” and still be sued and lose.
This is because civil assault charges do not need to be proved beyond a reasonable doubt. The standard in a civil trial is preponderance of the evidence, which means it is “more likely than not” that you assaulted the plaintiff.
In order to recover damages, the plaintiff must prove by a preponderance of the evidence that:
- You owed a duty of care toward the plaintiff;
- You breached that duty through negligence, recklessness or an intentional wrongful act; and
- As a result of the breach, the plaintiff suffered damages.
Defenses to civil charges of assault are the same as for criminal assault charges.
For more information, please see our article on Lawsuits for Assault and Battery in California.
Additional reading
For more in-depth information, refer to these scholarly articles:
- A Final Assault on Attempted Assaults – Santa Clara Lawyer.
- Sentence dispositions accorded assault and burglary offenders: An exploratory study in twelve California counties – Journal of Criminal Justice.
- Perceptions of Victims and Defendants in Criminal Assault Cases – Criminal Justice and Behavior.
- Incidence of Non-Fatal Workplace Assault Injuries Determined From Employer’s Reports in California – Journal of Occupational and Environmental Medicine.
- Drug Involvement in Criminal Assaults by Adolescents – Archive of General Psychiatry.
Legal References:
- Penal Code 240 PC – Assault defined. (“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.”)
- Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 915 – Simple Assault (Pen. Code, § 240). (“The defendant is charged [in Count ] with assault [in violation of Penal Code section 240]. To prove that the defendant is guilty of this crime, the People must prove that: 1 The defendant did an act that by its nature would directly and probably result in the application of force to a person; 2 The defendant did that act willfully; 3 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] 4 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 5 The defendant did not act (in self-defense/ [or] in defense of someone else).]”). In re James M. (1973) 9 Cal.3d 517; People v. Lara (1996) 44 Cal.App.4th 102; People v. Williams (2001) 26 Cal.4th 779; People v. Wright (2002) 100 Cal.App.4th 703; People v. Myers (1998) 61 Cal.App.4th 328; People v. Rocha (1971) 3 Cal.3d 893; People v. Ibarra (2007) 156 Cal.App.4th 1174; People v. Lee (1994) 28 Cal.App.4th 1724. Penal Code 242 PC.
- See note 1.
- Penal Code 241 PC – Assault on a Police Officer; punishment.
- Penal Code 245(a)(1).
- Penal Code 240 PC – Assault defined, endnote 1, above.
- CALCRIM 915 – Simple Assault (Pen. Code, § 240), endnote 2, above.
- CALCRIM 915 – Simple Assault (Pen. Code, § 240). (“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.] [The People are not required to prove that the defendant actually touched someone.]”)
- See same.
- See same.
- CALCRIM 915 – Simple Assault (Pen. Code, § 240). (“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.”)
- CALCRIM 915 – Simple Assault (Pen. Code, § 240). (“The People are not required to prove that the defendant actually intended to use force against someone when (he/she) acted.”)
- Based on the facts of People v. Williams (2001) 26 Cal.4th 779.
- Compare Penal Code 240 PC – Assault defined, endnote 1, above, with Penal Code 242 PC – Battery defined, endnote 3, above.
- San Bernardino criminal defense attorney Michael Scafiddi, a former police officer and sergeant, represents clients in criminal cases ranging from DUI to assault to carjacking throughout the Inland Empire. He is an expert in California evidence law and he is well-known at the criminal courts in Palm Springs, Hemet, Riverside, Barstow and Victorville.
- Penal Code 241 PC – Assault; punishment, endnote 4, above. People v. Serrano (Cal. App. 5th Dist. 2022) 77 Cal. App. 5th 902.
- Penal Code 241 PC – Assault; punishment. (“(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, animal control officer, or search and rescue member 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, animal control officer, or search and rescue member 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 a county jail not exceeding one year, or by both the fine and imprisonment.”). See also Penal Code 245(c).
- See same.
- Penal Code 241 PC – Assault; punishment.
- CALCRIM 915 – Simple Assault (Pen. Code, § 240), endnote 2, above.
- CALCRIM 3470 – Right to Self-Defense or Defense of Another
- Based on the facts of People v. Myers (1998) 61 Cal.App.4th 328.
- CALCRIM 917 – Insulting Words Are Not a Defense.
- CALCRIM 915 – Simple Assault (Pen. Code, § 240), endnote 2, above.
- Penal Code 242 PC – Battery defined, endnote 3, above.
- CALCRIM 960 – Simple Battery
- Penal Code 245 PC – Assault with deadly weapon or force likely to produce great bodily injury; punishment.
- See same. People v. Webb (Cal. App. 4th Dist., 2023) 90 Cal. App. 5th 660.
- Penal Code 415
- See same.
- See same.
- Penal Code 217.1(a) PC – Assault on public officials.
- Same.
- Penal Code 244 PC – Assault with caustic chemicals.
- Vehicle Code 23110 VC – Throwing objects at a motor vehicle [overlaps to some extent with the crime of assault].