California assault law, Penal Code 240, defines an assault—also known as a “simple assault”—as an attempt to commit a violent injury on someone else.1
For a defendant to be convicted in a criminal jury trial of California assault under PC 240, all of the following must be true:
- The defendant did something that was likely to result in the use of force against someone else;
- The defendant did so willfully;
- The defendant was aware of facts that would lead a reasonable person to believe that this act would directly and probably result in force being applied to the other person; and
- When the defendant acted, s/he had the ability to apply force to the other person.2
Even though people often use the phrase “assault & battery,” California assault and California battery are actually two distinct crimes. The California 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).3
The following are examples of situations where California assault charges may be filed:
- 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.
Penal Code 240 PC simple assault is a misdemeanor in California law.4
The penalties for California assault in most cases include a fine of up to one thousand dollars ($1,000) and/or up to six (6) months in county jail.5
You can be charged with—and convicted of—California assault even if no one was actually hurt by your behavior. As a result, far too many people who have no criminal history, and never thought they were doing anything that was against the law, get hit by PC 240 charges.
A California criminal defense attorney can help. There are several powerful legal defenses you can use to fight these charges. These include:
- 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 wrongfully accused.
In order to help you better understand California assault laws, our California criminal defense attorneys will address the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
You may also find helpful information in our related articles on California Criminal Jury Trials; California Battery Law Penal Code 242 PC; Legal Definition of a Misdemeanor in California Law; Common Legal Defenses to California Crimes; Self-Defense as a Legal Defense in California Law; Misdemeanor (Summary) Probation in California; Battery Causing Serious Bodily Injury Penal Code 243(d) PC; Legal Definition of a Wobbler in California Law; Legal Definition of a Felony in California Law; Legal Definition of Great Bodily Injury/Harm; Penal Code 245(a)(1) Assault with a Deadly Weapon; California “Disturbing the Peace” Laws Penal Code 415 PC; and Legal Definition of an Infraction in California Law.
Penal Code 240 PC, California's assault law, sets out the legal definition of California assault.6
The “elements” of the crime of assault—that is, the things that the 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;
- 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 doesn't need to be direct either—it can be done indirectly by causing an object to touch the “victim.”9
Example: Scott gets in an argument with a store clerk who has wrongly accused him of shoplifting. 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.
And note that you don't 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: Let's return to the example of Scott from above. Let's say that he is some distance away from the store clerk when he spits at her, and his saliva does not actually end up landing on her. But because it is likely that it would have, he may still be guilty of assault.
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 trying to join a fraternity at his college. As part of the initiation process, he is told to sneak up on Professor Blume, an unpopular professor, pin him down, and tickle him. Ricardo does this one day while Professor Blume is lecturing in class.
But to Ricardo's surprise, one of the students in the class calls the campus police. They contact local law enforcement, and Ricardo is arrested for assault.
Ricardo had no intention of actually hurting Professor Blume or breaking the law. But because the tickling can be deemed an “offensive touching,” and he tickled Professor Blume on purpose—he may still be charged with PC 240 assault.
Aware that the act might lead to the application of force
It bears re-emphasizing that you don't 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: Greg and Keith are competing for the same woman. One night Greg and his teenage son drive to Keith's house. Keith comes outside with a loaded gun and tells Greg to go away.
Keith then fires his gun at the right rear fender of Greg's truck, while Greg is standing near the driver's side door on the other side of the truck. Greg's son is getting into the car on the passenger (right) side when Keith is firing.
Keith did not intend to injure Greg or his son—he just wanted to intimidate them. But because he was aware that they were near the truck, and thus that there was a good chance of one of them being injured by the gun, he is guilty of assault (actually Penal Code 245(a)(1) assault with a deadly weapon).13
The difference between assault and battery is confusing to many people, especially since we often use the phrase “assault & battery,” which suggests that they are the same thing.
California assault and California battery are, in reality, completely different offenses. The major difference is that:
- Penal Code 240 assault is an action that may inflict physical harm or unwanted touching on someone else, and
- 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.'”
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
The penalties for California assault are steeper if the victim belongs to certain professional categories.
Specifically, you face heightened penalties if you assault someone who is engaged in the performance of his/her duties as a
- Peace officer (police or other law enforcement),
- Emergency medical technician (EMT) or paramedic,
- 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 one (1) year; and the maximum fine increases to two thousand dollars ($2,000).18
The maximum fine for assault also increases to two thousand dollars ($2,000) if the victim is a parking control officer engaged in the performance of his/her duties—for obvious reasons, a common potential target of assault!19
Nobody wants to go to jail or pay a fine—and nobody wants a conviction for “assault” on their record. That word may make people think you are a violent person, when in reality you can be convicted of assault for behavior that has little to do with violence.
To beat California assault charges, you and your criminal defense attorney may be able to use some or all of the following legal defenses:
You did not have the ability to inflict force or violence
One of the elements of California assault is that the defendant must have had the ability to inflict force on the “victim.” If s/he did not have that ability, then s/he is not guilty of assault.20
Example: Chris and Ryan get into a fight at a bar. Their friends immediately step in and separate them, pulling 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 for doing this—because Ryan is so far away from him by now that there is no way he could have actually hit him.
You acted in self-defense/defense of others
The legal defense of self-defense/defense of others applies to assault charges (and other offenses as well) 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 Tom has had a bad relationship with the manager of his apartment building, Jim, for a long time. One day Jim confronts him in the parking lot where he is washing his car. Jim pokes Tom in the chest.
Tom responds by pushing Jim. Jim then slips on the wet pavement and falls, badly injuring his head.
Even though all Jim did was poke Tom in the chest, Tom may still be able to defend against assault charges with the legal defense of self-defense. Jim was touching him 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. You can only claim self-defense/defense of others if you reasonably believed someone was in danger of an unlawful touching or physical injury.23
You did not act willfully or with the required intent
If you didn't “willfully” attempt to use force against someone else, then you aren't guilty of PC 240 assault.24
Maybe your actions were accidental or the result of a misunderstanding—or they were misinterpreted by the supposed “victim.” If this is the case, you and your criminal defense attorney can make sure that the prosecutor and jury get the full story.
You were falsely accused
Because there is no requirement that the alleged victim suffer an actual injury under Penal Code 240 PC, it is all too easy for one person to falsely accuse another of committing assault, out of
- jealousy, or
- desire for revenge.
An experienced California criminal defense lawyer has seen this situation before—and knows how to gather evidence and interview witnesses to make sure the true story comes out.
California assault charges may be brought in addition to, or in place of, charges for certain other related California offenses, including:
As we discussed above, the California crime of battery, Penal Code 242 PC, differs from an assault in that it requires that the defendant actually use force or violence against someone else.25
But note that—as is the case with California assault—you can be guilty of battery in California even if you did not actually inflict an injury on the supposed victim. All that matters is that you succeeded in touching him/her in a harmful or offensive manner.26
Battery is a misdemeanor, punishable by a fine of up to two thousand dollars ($2,000) and/or a county jail sentence of up to six (6) months.27
But if you actually inflict a serious injury on the victim, then you will face the tougher penalties that go along with battery causing serious bodily injury, Penal Code 242(d) PC. This offense is a wobbler in California law, which means it may be charged as either a misdemeanor or a felony.28
If it is charged as a California felony, battery causing serious bodily injury can lead to two (2), three (3), or four (4) years in prison.29
If you are alleged to have committed an assault with either
- a deadly weapon (like a gun or knife), or
- other means of force likely to cause great bodily injury,
then you will probably be charged with Penal Code 245(a)(1) assault with a deadly weapon.30
Assault with a deadly weapon (also known as ADW) is a wobbler, with a maximum misdemeanor sentence of one (1) year in county jail and a potential felony jail sentence of two (2), three (3) or four (4) years.31
California "disturbing the peace" laws —set out in Penal Code 415 PC—make 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.32
Disturbing the peace is considered a low-level misdemeanor. A conviction for this offense carries a maximum of ninety (90) days in jail.33 In some cases, it can also be treated as an infraction.34
If you are charged with California assault under PC 240 and the evidence against you is weak—the prosecutor may agree to reduce the charges to PC 415 disturbing the peace. This can be a great outcome for a defendant because the penalties for disturbing the peace are significantly lighter than those for assault.35
Call us for help…
For questions about Penal Code 240 PC California assault, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
For more information on Nevada “assault & battery” laws, please visit our page on Nevada “assault & battery” laws.
1 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.”)
2 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).]”)
3 Penal Code 242 PC – Battery defined [contrast to definition of California assault]. (“A battery is any willful and unlawful use of force or violence upon the person of another.”)
4 Penal Code 241 PC – 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.”)
5 See same.
6 Penal Code 240 PC – Assault defined, endnote 1, above.
7 CALCRIM 915 – Simple Assault (Pen. Code, § 240), endnote 2, above.
8 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.]”)
9 See same.
10 See same.
11 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.”)
12 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.”)
13 Based on the facts of People v. Williams (2001) 26 Cal.4th 779.
14 Compare Penal Code 240 PC – Assault defined, endnote 1, above, with Penal Code 242 PC – Battery defined, endnote 3, above.
15 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.
16 Penal Code 241 PC – Assault; punishment, endnote 4, above.
17 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.”)
18 See same.
19 Penal Code 241 PC – 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.”)
20 CALCRIM 915 – Simple Assault (Pen. Code, § 240), endnote 2, above.
21 CALCRIM 3470 - Right to Self-Defense or Defense of Another (Non-Homicide [with respect to acts involving California assault]). ("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.")
22 Based on the facts of People v. Myers (1998) 61 Cal.App.4th 328.
23 CALCRIM 917 – Insulting Words Are Not a Defense. (“Words, no matter how offensive, and acts that are not threatening, are not enough to justify an assault or battery. [However, if you conclude that <insert name> spoke or acted in a way that threatened <insert name of defendant or third party allegedly threatened> with immediate harm [[or an unlawful touching]/ [or] great bodily injury/ [or] trespass on land/ [or] trespass against goods], you may consider that evidence in deciding whether <insert name of defendant> acted in (self-defense/ [or] defense of others).]”)
24 CALCRIM 915 – Simple Assault (Pen. Code, § 240), endnote 2, above.
25 Penal Code 242 PC – Battery defined, endnote 3, above.
26 CALCRIM 960 – Simple Battery [compare to elements of the crime of assault]. (“The slightest touching can be enough to commit a battery if it is done in a rude or angry way.")
27 Penal Code 243 – Battery; punishment [compare to penalties for assault]. (“(a) A battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment.”)
28 Penal Code 243 – Battery; punishment [compare to penalties for assault]. (“(d) When a battery is committed against any person and serious bodily injury is inflicted on the person, the battery is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.”)
29 See same.
30 Penal Code 245 PC – Assault with deadly weapon or force likely to produce great bodily injury; punishment. (“(a)(1) Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm 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. (2) Any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than six months and not exceeding one year, or by both a fine not exceeding ten thousand dollars ($10,000) and imprisonment.”)
31 See same.
32 Penal Code 415 PC – Fighting; noise; offensive words [potential plea bargain from PC 240 assault]. (“Any of the following persons shall be punished by imprisonment in the county jail for a period of not more than 90 days, a fine of not more than four hundred dollars ($400), or both such imprisonment and fine: (1) Any person who unlawfully fights in a public place or challenges another person in a public place to fight. (2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise. (3) Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.”
33 See same.
34 Penal Code 17 PC - Felony; misdemeanor; infraction; classification of offenses. ("(d) A violation of any code section listed in [Penal Code] Section 19.8 is an infraction subject to the procedures described in [California Penal Code] Sections 19.6 and 19.7 when: (1) The prosecutor files a complaint charging the offense as an infraction unless the defendant, at the time he or she is arraigned, after being informed of his or her rights, elects to have the case proceed as a misdemeanor, or; (2) The court, with the consent of the defendant, determines that the offense is an infraction in which event the case shall proceed as if the defendant had been arraigned on an infraction complaint.") California Penal Code 415 PC "disturbing the peace" [potential plea bargain from assault charges] is listed in Penal Code 19.8 PC.
36 See same.