What’s the statute of limitations for “assault” in California?

The statute of limitations for simple (misdemeanor) assault in California is one year. But for most felony assault charges, the prosecutor has up to three years to bring charges.

A statute of limitations (SOL) refers to the maximum time period during which a prosecutor can file criminal charges. If a prosecutor files charges after the limitations period expires, the charges are typically dropped.

Per California Penal Code Section 240 PC, a simple assault is defined as an unlawful attempt to commit a violent injury to another person. A violation of this statute is a misdemeanor offense.

Under California law, “aggravated assault” refers to an assault crime that is more severe than simple assault. The offense is sometimes called felonious assault.

Examples include:

• assault with a deadly weapon, per Penal Code 245a1 PC, and
• assault with a firearm, per Penal Code 245a2 PC.

Most aggravated assaults are charged as wobblers. A wobbler is an offense that can be charged as either

• a misdemeanor, or
• a felony.

What is the statute of limitations for assault?

If a person commits an assault, and the crime is charged as a misdemeanor (for example, simple assault), then the statute of limitations is one year.

If an offender commits an assault, and the offense is charged as a felony, the crime usually carries a three-year statute of limitations period.¹

Criminal statutes of limitations mean prosecutors must:

• file criminal charges before the statutory periods expire, or
• they will no longer be able to do so.

California criminal law uses the “discovery rule” to determine when the SOL period for bringing criminal charges begins. The rule says that the SOL clock begins when an offense is discovered.

So, for example, an offender may commit a simple assault on February 1, 2024. If police do not learn of the crime until February 1, 2025, then a prosecutor has until February 1, 2026, to file charges.

Why is there a statute of limitations?

Statutes of limitations exist out of fairness towards defendants. For example, evidence may get lost or destroyed as time passes. Further, witnesses may move after several years, or forget details about an event. A result is that it would be unfair to bring criminal charges against a person after a certain amount of time has passed.

Note that these statutes do not just apply in criminal cases. They also apply in civil lawsuits and California personal injury cases. Per California Code of Civil Procedure 335.1, the general statute of limitations in a civil action personal injury matter is two years from the date of the injury.²

What is simple assault?

A prosecutor must prove the following to convict a defendant of simple assault successfully:

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,
4. when the defendant acted, he/she had the present ability to apply force to a person, and
5. the defendant did not act in self-defense or in defense of someone else.³

Note that someone commits an act “willfully” when he or she does it willingly or on purpose.⁴ Further, 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.⁵

A violation of PC 240 is a misdemeanor. The crime is punishable by:

• custody in county jail (as opposed to state prison) for up to six months, and/or
• a maximum fine of $1,000.⁶

What is aggravated assault?

There is not a specific crime called “aggravated assault” under California law. The term rather refers to a form of assault that is more serious than simple assault.

The following are the aggravated assault crimes under California law:

1. assault with a deadly weapon – PC245a1,
2. assault with a firearm – PC 245a2,
3. assault by means likely to produce great bodily injury – PC 245a4,
4. assault with caustic chemicals – PC 244, and
5. assault with a deadly weapon on a school employee – PC 245.5.

Most of the above crimes are charged as wobblers. A prosecutor can charge a wobbler can as either a misdemeanor or a felony depending on the following:

• the facts of the case, and
• the criminal history of the defendant.

A misdemeanor aggravated assault charge is punishable by imprisonment in county jail for up to one year.

A felony charge is punishable by custody in state prison for up to four years.

Note that assault with caustic chemicals is always charged as a felony offense and the penalties are:

• custody in state prison for up to four years, and/or
• a maximum fine of $10,000.⁷

There are legal defenses available if a person has been charged with an assault offense. It is critical for a person accused of assault to contact an experienced criminal defense attorney or law firm to get legal advice.

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.

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Legal References:

1. See, for example, California Penal Code 801 PC.
2. California Code of Civil Procedure 335.1 CCP.
3. CALCRIM No. 915 – Simple Assault. Judicial Council of California Criminal Jury Instructions (2020 edition).
4. See same. See also People v. Lara (1996) 44 Cal.App.4th 102.
5.  CALCRIM No. 915 – Simple Assault. See also In re B.L. (2015) 239 Cal.App.4th 1491.
6. California Penal Code 19 PC.
7. California Penal Code 244 PC.