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Is shoving someone considered an assault in California?

Posted by Neil Shouse | Apr 22, 2019 | 0 Comments

cartoon of a boy pushing another boy
Shoving someone can be considered both an assault and a battery in California

Shoving someone can be considered both:

California law says that an assault is an attempt to commit a violent injury on someone else. Shoving a person can definitely equate to trying to hurt another person.

The law also says that a battery is any willful and unlawful use of force or violence on someone else. Again, a shove can definitely be viewed as a willful and unjustified use of force on a person.

Both simple assault and simple battery are charged as misdemeanors in California. Both are also punishable by up to six months in county jail.

What is simple assault under Penal Code 240?

Penal Code 240 is the California statute on assaults. This statute says that an assault is any attempt to use force or violence on someone else. While a battery involves the actual use of force or violence, assault specifically focuses on the attempt to use such force or violence.

Please note that with regards to the “use of force or violence,” any harmful or offensive touching is enough to give rise to an assault charge. The slightest touching will count if it is done in a rude or offensive manner.

A California assault can even occur 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.”

All of this means that a shove does not have to be hard to make it an assault. Further, an assault charge can arise even if a person went to shove another and he missed. The key is “the attempt” to use force or violence.

Penal Code 240 is charged as a misdemeanor under California law. The offense is punishable by:

  • imprisonment in the county jail for up to six months; and/or,
  • a maximum fine of $1,000.

What is a simple battery under Penal Code 242?

Penal Code 242 is the California statute governing the crime of battery. This statute says that a battery consists of any willful and unlawful use of force or violence on someone else.

The legal definition of battery merely requires that you make physical contact with another person—not that you cause any injury to him or her. In fact, the slightest touching can be a battery.

A battery also occurs even if the touching takes place:

  • through the victim's clothing, and/or
  • indirectly, by means of an object that the defendant uses to touch the “victim.”

Again, all of this means that a shove or push does not have to be hard to lead to a battery charge. In addition, the recipient of the shove doesn't even have to be injured in the act.

But do note that an actual touching has to take place. There can be no battery charge if a person went to shove another and he missed. An assault charge, though, could still be raised.

A violation of Penal Code 242 PC is charged as a misdemeanor under California law. The offense is punishable by:

  • imprisonment in the county jail for up to six months; and/or,
  • a maximum fine of $2,000.

What is the difference between assault and battery in California?

The difference between assault and battery is confusing to many people. The 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.

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.

Can an accused raise a legal defense if charged with an assault or battery?

A defendant can raise a legal defense to challenge any assault or battery charge. A defense can work to reduce, or even dismiss, a criminal charge. Note, though, that it is best to have an experienced criminal defense attorney raise a defense on a defendant's behalf.

As to assault, there are four common defenses that an accused can raise. These are that the defendant:

  1. did not attempt to use force,
  2. acted in self-defense,
  3. did not act willfully, and
  4. was falsely accused.

As to battery, there are four common defenses that an accused can raise. These are that the defendant:

  1. did not actually touch another person, he rather only attempted to do so,
  2. did not act willfully,
  3. acted in self-defense, and
  4. was stopped or charged without probable cause.

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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