Penal Code § 240 PC defines the crime of assault as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” Simple assault is a misdemeanor offense punishable by up to 6 months in jail and fines of up to $1000.00.
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). 1 2 3
- 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.
240 PC simple assault is a misdemeanor in California law.4 Felony assault is chared in more serious cases, as we discuss in section 4 below.
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 falsely accused.
In order to help you better understand California assault laws, our criminal defense attorneys discuss the following, below:
- 1. How does California law define the crime of simple assault?
- 2. What are the consequences if a person is convicted of 240 PC?
- 3. How can a person defend against these charges in court?
- 4. Are there other crimes commonly charged together with assault?
- 5. Can assault victims file a civil lawsuit?
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
1. How does California law define the crime of simple assault?
California 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
1.1. What is the difference between assault and battery?
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.’”
2. What are the consequences if a person is convicted of 240 PC?
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
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
3. How can a person defend against these charges in court?
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 suffered 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.
4. Are there other crimes commonly charged together with assault?
California assault charges may be brought in addition to, or in place of, charges for certain other related California offenses, including:
4.1. PC 242 California battery/battery causing serious bodily injury
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
4.2. PC 245(a)(1) assault with a deadly weapon
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) PC 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
4.3. PC 415 disturbing the peace
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
4.4. PC 217.1(a) assault on a public official
The California crime of “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 his/her official duties.36
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. The potential misdemeanor sentence is one (1) year in county jail, and the felony sentence is sixteen (16) months, two (2) years or three (3) years.38
4.5. PC 244 assault with caustic chemicals
Penal Code 244 PC assault with caustic chemicals is a more serious form of California assault.
The legal definition of assault with caustic chemicals is throwing or placing any kind of caustic chemical on someone else’s body, with the intent to injure or disfigure him/her.39
PC 244 is a felony and carries a potential state prison sentence of two (2), three (3) or four (4) years.40
4.6. VC 23110 throwing an object at a motor vehicle
Vehicle Code 23110 VC throwing objects at a motor vehicle occurs when someone throws any object or substance at a motor vehicle that is on a public street.41
In cases where the facts justify it, prosecutors may choose to try a defendant under this law rather than under California’s assault law. Unlike assault, throwing an object at a motor vehicle does not require that the defendant 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.
VC 23110 is a misdemeanor in most cases. However, it becomes a felony if the object thrown was capable of causing serious injury and the defendant intended to inflict great bodily injury.42
5. Can assault victims file a civil lawsuit?
Someone who has been the victim of assault in California has the right to sue the perpetrator for damages such as medical bills and lost wages. The defendant does not need to be found guilty in a criminal trial or even charged with a crime. In fact, someone who has been found “not guilty” can 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.” The preponderance of the evidence is simply a fancy way of saying that the jury thinks it is “more likely than not” that the defendant assaulted the plaintiff.
In order to recover damages, the plaintiff must prove by a preponderance of the evidence that:
- The defendant owed a duty of care toward the plaintiff;
- The defendant 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, or contact the personal injury lawyers at the Shouse Law Group for a free consultation to discuss your case.
Please note that the statute of limitations for assault charges to be filed in California is generally one year for misdemeanors and three years for felonies.
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.
If you are a veteran, read our article about defending veterans with PTSD.
For more information on Nevada “assault & battery” laws, please visit our page on Nevada “assault & battery” laws.
- 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).]”)
- Penal Code 242 PC – Battery defined [contrast to a definition of assault]. (“A battery is any willful and unlawful use of force or violence upon the person of another.”)
- Penal Code 241 PC – Assault on a Police Officer; 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.”)
- See same.
- 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.
- 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 243 – Battery; punishment
- See same.
- See same.
- Penal Code 245 PC – Assault with deadly weapon or force likely to produce great bodily injury; punishment.
- See same.
- Penal Code 415
- See same.
- Penal Code 17
- See same.
- Penal Code 217.1(a) PC – Assault on public officials.
- 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].