§ 240 PC – “Assault” – California Law & Penalties

California Penal Code § 240 PC prohibits assault, which is the unlawful attempt – along with the present ability – to cause a violent injury to another person. An example is throwing a phone at someone, though it ends up missing.

Violating 240 PC – also called “simple assault” – is a misdemeanor punishable by up to six months in jail and up to $1,000. The penalties can be doubled if the victim is an on-duty officer.

Even though people often use the phrase “assault and battery,” assault and battery are distinct crimes. Battery consists of the actual use of unlawful force or violence against someone else as opposed to just an attempt to do so.

In this article, our California criminal defense attorneys discuss the following topics re. assault laws:

• 1. Elements of 240 PC
• 2. Penalties
• 3. Defenses
• 4. Related Offenses
• Additional Reading

1. Elements of 240 PC

California Criminal Jury Instruction “CALCRIM” 915 spells out the elements for assault. For you to be convicted of violating Penal Code 240 PC, prosecutors must prove beyond a reasonable doubt the following four elements:

1. You acted in a way likely to result in the application of force to someone else;
2. You acted willfully;
3. You knew that a reasonable person would believe that your act would likely result in the application of force to someone else; and
4. You had the ability to apply force to that person.¹

We discuss these elements in more detail below.

“Application of Force”

“Application of force” includes any harmful or offensive touching. Even the slightest touching will count if it is done in a rude or offensive manner.

An assault can occur even if the touching does not or cannot 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.”

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 succeed in applying force to the other person. All you have to do is take some action that would probably result in force being applied to them.²

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.³

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 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.⁴

Example: Keith throws a bottle at the right rear fender of Greg’s truck while Greg is standing near the driver’s side door. Keith intended only to intimidate Greg, but because he was aware there was a good chance of him being injured by the bottle, he is guilty of assault.

Difference Between Assault and Battery

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.⁵

As San Bernardino criminal defense attorney Michael Scafiddi⁶ explains:

“The easiest way to explain the difference between assault and battery is this: an assault does not 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.’”

A conviction for assault can result in a fine and/or jail time

2. Penalties

Simple assault in violation of 240 PC is a California misdemeanor. The potential penalties include:

• Misdemeanor (summary) probation;
• Up to 6 months in county jail; and/or
• A fine of up to $1,000.⁷

Predictably, these penalties are laxer than for assault with a deadly weapon (ADW) in violation of 245(a)(1) PC. As a wobbler crime, ADW can be prosecuted as either:

• A misdemeanor carrying up to 1 year in jail and/or $1,000; or
• A felony carrying 2, 3, or 4 years in jail.

Assault on a Law Enforcement Officer or Emergency Personnel

The maximum fine for simple assault in California becomes $2,000 if the victim is a parking control officer engaged in the performance of their duties.

Meanwhile, you face up to $2,000 in fines and up to one year in jail if the victim was 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.

For you to face these increased penalties, you must have known – or reasonably should have known – that the victim was performing their official duties during the assault.⁸

Restraining Orders

If you allegedly assaulted an on-duty retail establishment employee, 490.8 PC allows the court to issue a two-year restraining order barring you from entering the retail establishment. If you violate the restraining order, you face additional criminal charges.

3. Defenses

Here at Shouse Law Group, we have represented literally thousands of people charged with assault in California. In our experience, the following four defenses have proven very effective with prosecutors, judges, and juries at getting 240 PC cases dismissed.

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.”

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.

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:

1. You reasonably believed that you or someone else was in imminent danger of suffering bodily injury or being touched unlawfully;
2. You reasonably believed that the immediate use of force was necessary to defend against that danger; and
3. You used no more force than was reasonably necessary to defend against that danger.

Note that words alone—no matter how offensive—are not enough to justify an assault.⁹

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.” 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.

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 ensure the true story emerges. Often, we can use the accuser’s own words (captured on text messages, voicemail, or through eyewitnesses) against them.

Self-defense is a common defense to assault.

Note that in some cases, we can reach out to the prosecutors right after an arrest in what is called a prefile intervention and try to persuade them not to bring charges at all. This is the best-case scenario since it avoids court altogether.

4. Related Offenses

• Assault on a public official – 217.1(a) PC
• Battery/battery causing serious bodily injury – 242 PC
• Battery on a peace officer – 243(b)&(c) PC
• Assault with caustic chemicals – 244 PC
• Assault with a deadly weapon – 245(a)(1) PC
• Disturbing the peace – 415 PC
• Criminal threats – 422 PC
• Throwing an object at a motor vehicle – 23110 VC

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: