Aggravated Assault Laws in California

Updated


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

Examples include:

  1. assault with a deadly weapon, per Penal Code 245a1 PC,
  2. assault with a firearm, per Penal Code 245a2 PC, and
  3. assault with caustic chemicals, per Penal Code 244 PC.

Defenses

A defendant can fight a felonious assault charge with a legal defense. Common defenses include:

Penalties

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

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.

Our California criminal defense attorneys will highlight the following in this article:

woman pulling out a gun
Penal Code 245a2 makes it a crime to commit an assault with a firearm

1. What is simple assault?

An assault is an unlawful attempt to touch or harm another person.1 Note that it is not necessary for a defendant to actually touch or harm a “victim” to be guilty of this offense.

Examples of simple assault are:

  • throwing a glass at someone, and
  • swinging at another in a fight and the other person ducks.

2. What is aggravated assault?

There is not a specific crime called “aggravated assault” under California law. The term 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.

2.1. Assault with a deadly weapon - PC245a1

A person commits this offense when he:

  1. assaults someone, and
  2. does so with a deadly weapon.2

A deadly weapon includes obvious weapons like guns and knives. But other objects can be “deadly” if they can be used to:

  • kill someone, or
  • cause them substantial harm.

An example is a pencil if used to stab someone.3

2.2. Assault with a firearm - PC 245a2

Penal Code 245a2 makes it a crime to commit an assault with a firearm.4

Examples include:

  • shooting at someone with a gun (even if the accused missed), and
  • pointing a loaded gun at someone.

2.3. Assault by means likely to produce great bodily injury - PC 245a4

Penal Code 245a4 PC is the California statute that makes it a crime for a person to:

  1. commit an assault, and
  2. do so by using force that is likely to produce “great bodily injury.”

A “great bodily injury” is a substantial injury. Examples are:

  • broken bones,
  • jaw fractures, and
  • gunshot wounds.

2.4. Assault with caustic chemicals - PC 244

Penal Code 244 is the California statute that makes it a crime for a person to:

  • throw or place caustic or flammable substances on someone,
  • with the intent to injure or disfigure that person.5

Caustic chemicals” are substances that can burn or corrode living tissue. An example is gasoline.

2.5. Assault with a deadly weapon on a school employee - PC 245.5

Penal Code 245.5 PC is the California statute that makes it a crime for a person to assault a school employee with any of the following:

  • a deadly weapon,
  • a firearm, or
  • a stun gun or taser.6
attorney at side-bar with judge
Our expert attorneys can help you challenge an aggravated assault charge with an amazing legal defense

3. Are there legal defenses?

A defendant can challenge an aggravated assault charge with a legal defense.

Three common defenses are:

  1. no assault,
  2. self-defense, and/or
  3. falsely accused.

3.1. No assault

There can only be a conviction of aggravated assault if a defendant committed an underlying assault. This means it is always a defense for an accused to show that there was no assault.

3.2. Self-defense

A defendant can try to beat a charge by saying that he acted in self-defense.

This defense will work if the accused:

  • believed that he was in “imminent danger,”
  • believed that force was necessary to stop the danger, and
  • used an appropriate level of force in defense.7

3.3. Falsely accused

These types of cases can involve many different parties. Often, one person will lie and accuse someone else of a crime to avoid being caught. An accused might be able to escape guilt, then, if he can show that someone unjustly blamed him.

4. What are the penalties?

Most of the above crimes are charged as wobblers. A wobbler can be charged as either a:

  • misdemeanor, or
  • felony.

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 and the penalties are:

  • custody in state prison for up to four years, and/or
  • a maximum fine of $10,000.8

5. Are there immigration consequences?

An aggravated assault conviction may cause negative immigration results.

At least one California court has stated that felony aggravated assault is an aggravated felony.9

The law states that if a non-citizen commits an aggravated felony, then he can be:

6. Can a person get a conviction expunged?

A person convicted of aggravated assault may be able to get an expungement if:

  1. he received either probation or a county jail term, and
  2. successfully completed the probation/jail term.

Note though that an expungement is generally not available if a defendant is sentenced to state prison.

7. Does a conviction affect gun rights?

A conviction under these laws may hurt a defendant's gun rights.

California law says that convicted felons cannot own or possess a gun. This means if:

  • a person was convicted of felony aggravated assault,
  • then he will lose his gun rights.

8. Are there related offenses?

There are three crimes related to aggravated assault. These are:

  1. battery – PC 242,
  2. battery causing serious bodily injury – PC 243d, and
  3. sexual battery – PC 243.4.

8.1. Battery – PC 242

Per Penal Code 242 PC, the crime of battery is any willful use of force on someone else.

Unlike assault, a battery requires that a defendant actually touch a “victim.”

8.2. Battery causing serious bodily injury – PC 243d

Under California Penal Code 243d PC, an aggravated battery occurs when:

  1. a person commits battery, and
  2. the “victim” suffers a “serious bodily injury” as a result.

8.3. Sexual battery – PC 243.4

Penal Code 243.4 PC makes it a crime for a person to:

  1. touch the intimate part of another person, and
  2. do so for purposes of sexual gratification or abuse.

Note that if there is no actual touching, a person could still be charged with simple assault.

For additional help...

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Legal References:

  1. California Penal Code 240 PC.

  2. California Penal Code 245a1 PC.

  3. People v. Nealis (1991) 232 Cal.App.3d Supp. 1.

  4. California Penal Code 245a2 PC.

  5. California Penal Code 244 PC.

  6. California Penal Code 245.5 PC.

  7. CALCRIM No. 3470 - Right to Self-Defense or Defense of Another. Judicial Council of California Criminal Jury Instructions (2017 edition). See also People v. Humphrey (1996) 13 Cal.4th 1073.

  8. California Penal Code 244 PC.

  9. Ortiz-Magana v. Mukasey (9th Cir. 2008) 542 F.3d 653.

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