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Is Assault a Misdemeanor or a Felony?

Posted by Neil Shouse | Jun 24, 2019 | 0 Comments

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The crime of assault can be either a misdemeanor or a felony in California depending upon:

  • the amount of force used, and
  • whether weapons were involved.

A person can be accused of assault even if no one was injured.

There are three types of assault under California criminal law.

  1. Simple assault.
  2. Aggravated assault.
  3. Assault with the intent to commit a felony.

Assault is defined under California law as:

  • an unlawful attempt,
  • to commit a violent injury on the person of another,
  • coupled with a present ability to do so.

The punishment for assault ranges from misdemeanor probation and county jail, to state prison and large fines.

  1. Simple assault is a misdemeanor punishable by up to six months in jail and fines.
  2. Aggravated assault can be a misdemeanor or a felony, punishable by jail or prison, and fines.
  3. Assault with the intent to commit a felony is a felony and punishable by state prison and fines.

Defenses to assault charges in California include:

  • self defense
  • defense of others,
  • mistaken identity,
  • no use of deadly weapons,
  • the force used was not likely to cause great bodily injury.

What must a prosecutor prove to convict a person of misdemeanor assault in California?

To prove that a person is guilty of misdemeanor assault a prosecutor must prove that:

  • the accused did an act that by its nature would directly and probably result in the application of force to a person;
  • the accused did that act willfully;
  • the accused was aware of facts that would lead a reasonable person to realize that the act would directly and probably result in the application of force to someone;
  • when the accused acted, he or she had the present ability to apply force to a person, and
  • the accused did not act in self-defense, or in defense of someone else.

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.

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.

What must a prosecutor prove to convict a person of felony assault in California?

To prove that a person is guilty of felony assault a prosecutor must prove that:

  • the accused did an act:
    • with a deadly weapon other than a firearm that by its nature would directly and probably result in the application of force to a person, OR
    • the act by its nature would directly and probably result in the application of force to a person, and the force used was likely to produce great bodily injury, OR
    • the accused used a firearm,
  • the accused did that act willfully,
  • the accused was aware of facts that would lead a reasonable person to realize that the act would directly and probably result in the application of force to someone,
  • when the accused acted, he or she had the present ability to
    • apply force likely to produce great bodily injury, OR
    • with a deadly weapon other than a firearm, OR
    • with a firearm,
  • the accused did not act in self-defense, or in defense of someone else.

Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.

A deadly weapon other than a firearm is:

  • any object, instrument, or weapon that is inherently deadly, or
  • one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.

What is the punishment for assault in California?

The punishment for assault in California ranges from misdemeanor probation and county jail, to felony probation and state prison sentences.

Simple assault is a misdemeanor punishable by:

  • up to six months in county jail,
  • a fine of $1,000.

Please note that the punishment for simple assault can be doubled if committed against specified people (police officers, firefighters, medical personnel, and others).

Aggravated assault can be either a misdemeanor or a felony punishable by up to:

  • one-year county jail as a misdemeanor,
  • two, three, or four years state prison as a felony,
  • a $10,000 fine.

Assault with the intent to commit certain felonies is a felony and generally punishable by:

  • two, four, or six years state prison
  • a $10,000 fine.

Please note that certain sentence enhancements or other factors might increase these penalties and make assault charges strikes under California's Three Strikes law.

Are there defenses to assault charges in California?

Yes, defenses to a charge of assault could include:

  • mistaken identity,
  • self defense,
  • defense of others,
  • the force used was not likely to cause great bodily injury,
  • no use of a deadly weapon.

An experienced criminal defense attorney defending a California assault case will:

  • work with private investigators,
  • interview and re-interview witnesses,
  • visit crime scenes, and
  • consult with experts.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.

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