Assault

Definition of Assault

Assault under Penal Code section 240 is as an attempt to commit battery on someone else.  For you to be convicted of this offense, the prosecution has to prove that you committed an act likely to result in the use of force against someone else, that you did so willfully, and that when you acted you had the ability to apply force to the alleged target.

The elements of Assault

For the prosecution to prove you guilty of assault, he or she must establish that: 1) you committed an act that inherently would result in the application of force to someone else; 2) you willfully committed that act; 3) when you committed the act, you knew, just as a reasonable person in your position would, that the act would likely result in the application of force to someone else; and 4) when you committed the act, you had the present and actual ability to apply force to someone else.

  • What does “application of force” mean?

Any harmful or offensive touching is application of force.  The force applied need not be strong for you to be accused or charged with assault.   The touching need not involve injury or the ability to inflict injury.   Nor does it have to be done directly.  All that is required is that you took some action that probably would have resulted in either force or offensive touching upon the person of another. For example, spitting in someone’s face does not result in actual injury to that person.  But it does constitute offensive touching.  And if you tried to spit in their face but they dodged the spit, you can be charged with assault.

  • What does “willfully” mean?

When you commit an act willfully or with the intention of committing the act, then you act willfully.  For you to have acted willfully for purposes of assault under code section 240, you need not have intended to violate the law or cause physical harm upon the person of another.  All that the prosecution must show is that you intended to commit the act, which would have likely resulted in harm or offensive touching upon the person of another.   For example, if you empty a bucket of ice on your friend in the shower as a joking gesture, you can be charged with assault.  Although you intended the act to be a prank, you willfully committed it knowing that it might result in offensive touching or actual physical harm upon the person of your friend.  The fact that you intended the act as just a prank or playful gesture does not matter in terms of the elements of the offense of assault.  It does, however, matter in determining the appropriate level of punishment that should be applied to your conduct.  If you intended the act to cause actual physical harm, then harsher penalties might apply.

  • What does it mean to be “aware” that your act might lead to the application of force?

Assault under code section 240 does not require you to have actually intended to use force against the alleged victim.   For this element of the offense, all that is required is that you knew, as would a reasonable person in your position, that your actions would lead to the application of force.   For example, if you fire a loaded gun towards a person’s direction with the intent of intimidating them, you can be charged with assault.  It matters not that you only intended to intimidate the person by your act of firing the gun.  You engaged in an act that you knew or should have known would result in harm to your target.

  • What does it mean to have the “present and actual ability” to apply force?”

If you willfully commit an act that by its nature cannot result in harm or offensive touching to someone else, then you cannot be found guilty of assault.  For example, if you waive a loaded gun at somebody intending to intimidate them, but you are doing so 100 miles away behind a television screen, you do not have the ability to inflict force or harm on that person.  While other relevant charges may apply to your action, you cannot be found guilty of assault.

Penalties for Assault

Simple assault under Penal Code section 240 is prosecuted as a misdemeanor.  If the alleged assault was committed with a deadly weapon or by means of force likely to result in great bodily injury, then you can be charged under Penal Code section 245(a)(1).   “Assault with a deadly weapon” is prosecuted as either a felony or a misdemeanor, depending on the specific circumstances of your case.  Simple assault as a misdemeanor involves a maximum fine of $1,000.00, a maximum county jail sentence of 6 months, or both.  The exact punishment depends on the specific circumstances of your case as well as your prior criminal history.

Defenses to Assault

Some common defenses to assault include:

  • You acted in self defense or defense of someone else

If you committed the act of assault in order to prevent a greater harm to yourself or someone else, and if your conduct was reasonable and necessary to prevent that harm, then you have a defense to the crime of assault.  Your defense attorney will have to establish that the conduct in which you engaged was reasonable force necessary to prevent a greater harm to yourself or the person you sought to protect.

  • You did not act willfully—i.e., you did not intend to attempt to cause injury or force upon the alleged victim

To prove beyond a reasonable doubt that you committed the offense of assault, the prosecution will have to establish that you had both the intent and the necessary conduct for the commission of the act.  If you lacked the intent to cause injury or force upon the alleged victim, you cannot be convicted of the crime of assault.

  • You did not have the ability to inflict force or violence on the alleged victim.

Simple intent to harm is not enough to prove you guilty of the crime of assault.  The prosecution must also prove that you had the ability to carry out that intent.  If you were incapable of applying force or violence upon the person of another, you cannot be convicted of the crime of assault.

  • You were involuntarily intoxicated

Generally, voluntary intoxication is not a defense to a crime of assault.  Under California, you are deemed responsible for the consequences of your actions when you voluntarily consume alcohol and drugs.  However, if you were intoxicated against your will, then you have a defense against actions that resulted from that involuntary intoxication.  Therefore, involuntary intoxication is a defense to a crime of assault.

Difference between assault and battery

Assault and battery are often used interchangeably, but they two different offenses.  Assault need not involve physical harm or unwanted touching on someone else.  Battery under penal code section 242 necessarily involves infliction of force or violence on someone else.  For example, if you swing at somebody with the intent of hitting him or her, but you miss, you could still be charged with assault.  If you do actually strike the person, then the appropriate charge would be battery.

How our Los Angeles Criminal Attorney can assist you

If you or a loved one has been charged with simple assault or assault with a deadly weapon, contact the Law Office of Negin Yamini for a free consultation today.  No matter how egregious the facts against you, Ms. Yamini has the presence of mind, skill, confidence, resourcefulness, and creativity to resolve your case in a most favorable disposition.  Depending on the specific circumstances of your case, Negin will will rigorously explore and assert any and all defenses on your behalf.

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Call 424-333-0943 24/7 if you want to retain excellent attorneys.

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