Facing serious criminal charges like assault could be stressful since your future depends on the case's outcome. Again, you may not be aware about whom to turn to for help especially if this is your first charge. If you are facing assault charges, you can always rely on the Los Angeles Criminal Attorney for assistance. For many years, we have offered our clients in Los Angeles the much-needed legal guidance throughout every stage of their case. We will also keep you updated on different options as well as new developments that may arise considering your options.

What is Assault in California?

Under California Assault Law, Penal Code 240, assault is an attempt to use force or violence against another person. For instance, if two people were in an argument and one tried to slap the other but missed, that could be described as assault since there was no actual contact.  Simply put, assault is the intent to commit a battery or cause another person bodily harm.

Understanding the Difference Between Battery and Assault

Both battery and assault are crimes that are commonly confused or used interchangeably in conversations. However, they are two different offenses.

The two charges differ in the presence of the threat of harm and hurt as elements of the crime. A person can be charged with battery if they caused physical harm to another person while another person can be charged with assault if there was a mere threat of harm.

Since these charges are distinct, each has its own penalties should a conviction take place. A defendant facing either charge could be subject to enhanced sentence or fines.

Elements of Assault

For a defendant to be convicted of assault in California, below are elements the prosecutor should prove:

  • The defendant did something that was likely to lead to the use of force against another person,
  • The defendant did so willingly,
  • The defendant acted in a manner that would make the victim believe that the defendant would probably and directly use physical force against them, and
  • The defendant had the ability to use force to the alleged victim.

Definition of Key Legal Terms

To have a better understanding of the above elements of assault, here are definitions of important legal terms:

Application of force

This legal term means any offensive or harmful touching. Even the slightest touch that is done in an offensive or rude manner will count.

Under Penal Code 240 PC, it is considered an assault even when the touch didn't or couldn't result in any kind of injury. Moreover, it does not need to be direct; it could be indirectly by touching the victim with an object.

Also, a defendant does not need to have managed using violence to the alleged victim. All that is important is that the defendant took an action that could have led to force being used.


The term "willfully" is used when a defendant does something on purpose or willingly. You don't require to have purposed to hurt another person, gain any benefit or break the law.

Aware that the act would cause applying of force

As discussed above, you don't require to have anticipated using force against another person to be charged with assault. All you need is knowing that your actions could result in force being applied.

Different Types of Assault

What is the difference between different types of assault? Here are brief overviews, and the exact variations depend on different jurisdictions.

  1. Simple assault

Simple assault is what was discussed above. It can happen whether a weapon was used or not and whether or not the alleged victim suffers minor harm or any physical injuries.

  1. Felonious assault

As the name suggests, felonious assault is a felony and is more serious than simple assault. It involves using a lethal weapon like a pistol, gun revolver, iron bar, knife, brass knuckles or club to threaten another person (the victim in fear or harm). For instance, brandishing a pistol during a heated argument could be considered as a felonious assault.

However, it is worth noting that felonious assault only applies to a narrow range of conducts. In reference to the previous example, if you point the pistol, pull the trigger and you miss the target or the gun misfires, then felonious assault will not apply. This is because there is evidence that you tried to injure or kill the other person by pulling the trigger. You may face attempted murder charges instead.

  1. Aggravated assault

Aggravated assault is severely punished due to the seriousness of the crime. An assault that occurs in a victim's home is also classified as an aggravated assault. Factors that can raise the assault to an aggravated level include the use of weapons, the victim's status, the degree of injuries caused, and the perpetrator's intention.

Assault with a deadly weapon

Using deadly weapons to assault another person is aggravated assault because the victim would be in fear of a more severe injury. A person would be charged with this crime even if the use of the weapon didn’t result in any injuries.

The victim’s identity

Assaults on emergency personnel or law enforcement officers are punished as aggravated assault. Usually, for the assault to become aggravated assault, the alleged victim must be performing their duty at the time of the assault and the offender must have been aware of the victim's status.

Also, assault on members of protected classes constitutes aggravated assault. This could include assault based on gender, sexual orientation, religion, living with disability, nationality, and ethnicity.

The perpetrator’s intent

If the perpetrator acted with the intent to cause fear or harm, the assault becomes aggravated.

The degree of injury to the plaintiff

Assaults leading to severe bodily injuries are classified as aggravated assaults. The degree of the injury varies from one case to another. 

  1. Sexual Assault

According to California's sexual assault law, it is illegal to touch another person's inmate part for the purpose of arousal, abuse or gratification without the victim's consent. With respect to sexual assault, "to touch" means you made contact with the victim's bare skin either directly or through their clothing. The inmate parts include sexual organs, buttocks, groin, anus, and a female's breast.

It is worth noting that one can be convicted of sexual assault in California even if they are currently in a sexual relationship with the victim.

Examples include:

  • Asking a mentally challenged person to masturbate in front of you
  • Intentionally touching a woman's breast without their consent
  • Putting your hand inside someone else's underwear without their permission

When sexual assault leads to non-consensual intercourse or penetration with the alleged victim, it is considered rape.

Penalties for Violating Penal Code 240 PC Assault

Violating Penal Code 240 PC assault laws is a misdemeanor and punishable by misdemeanor probation, a maximum fine of $1,000 and/or a maximum of six months in county jail.

Penalties for aggravated assaults are more serious if the plaintiff is a member of the following professional categories:

  • Police and other peace officers
  • Paramedics
  • Firefighter
  • Code enforcement official
  • Process server
  • Animal control officials
  • Doctors or nurses offering emergency medical service
  • Parking control officer
  • Lifeguard

If the victim belongs to one of the above categories and the defendant knew it, then they will serve up to a one-year sentence in county jail and/or pay a fine of $2,000.

Legal Defenses Against Assault Charges

Having an assault record in California makes you look like a violent person yet, in reality, no one was hurt. As a result, it is very easy for a person who complies with the law to find themselves facing Penal Code 240 PC charges. 

Well, all is not lost. An experienced criminal defense lawyer can fight these charges using powerful legal defenses such as:

  1. Self-defense

The first defense against assault charges is that you responded in self-defense. Under the circumstances at the time of the incident, you may have thought your actions were vital to avoid being killed or hurt. Self-defense applies if the following elements are proven to be true:

  • You rationally believed your life was in danger,
  • You thought you were going to be hurt or touched unlawfully,
  • You believed using physical force would avoid potential injury, and
  • You used only the amount of force needed to protect yourself.
  1. Defense of others

Additionally, the law allows you to respond in defense of somebody else. It could be a family member, a friend or a stranger. The elements you need to present are similar to what your attorney would present to the prosecutor for self-defense.

  1. Mistaken identity

You could be charged with assault while in the real sense the prosecutor has the wrong person. This is because there is no requirement that the victim was actually injured under California's assault law. It is, therefore, easy for the real perpetrator to falsely accuse another person of committing the crime out of revenge, jealousy, or anger.

A good lawyer has experienced these situations before and knows how to collect evidence as well as interview witnesses to ensure the truth comes out.

  1. You didn't have the power to inflict violence or force

The ability to impose force/violence on the alleged victim is one of the elements of assault in California. If the defendant can prove that they didn't have such ability, then they cannot be convicted of assault.

For instance, Mary and Jane are in a heated argument in the classroom and start fighting. Their friends quickly separate them and pull them to different corners of the classroom. From her side, Mary swings her fist in Jane's direction. Mary cannot be convicted with assault by swinging her fist because Jane is at a distance from her and she cannot hit Jane.

  1. You didn't act with ill intent or willfully

If a defendant did not deliberately attempt to apply force against the victim, then they are not guilty of assault. Your action could be due to the misunderstanding, accidental or taken the wrong way by the victim.

  1. Consent

You may say that the victim agreed to be hurt. More often than not, this defense arises in deliberate tort lawsuits cases involving paintball-style games or contact sports. A victim who files such a lawsuit can have a difficult time winning if they consented to physical contact even if the contact caused harm at the end.

Another example could be a sexual encounter where one partner believes the other went too far. This would be a clear indication that the alleged victim of the sexual assault consented.

Is there Anything that is Not Considered as Defense Against Assault?

Most assault accusations arise from a perpetrator having either too much to drink or by getting revenge against another person's taunts. Nevertheless, saying you were high on drugs or alcohol is not defense. Voluntarily taking drugs or drinking alcohol means you should be liable for your actions while impaired or intoxicated.

Additionally, responding to somebody else's jeers, catcalls or insults is not self-defense. You are reacting to a provocation, that is not a defense to assault. Though, severe provocation could result in a reduced charge or penalty. 

Related Offenses to Penal Code 240 PC Assault

Assault accusations in California can be brought alongside, or in lieu of accusations for other related offenses like:

Penal Code 242(d) PC California battery or battery leading to severe body injury

As mentioned earlier, a battery offense in California is very different from assault in that the perpetrator must use violence or force against the victim. The battery is charged as a misdemeanor and it attracts a six-month sentence in county jail or a maximum fine of $2,000.

But then again, if you inflicted severe injuries on the alleged victim, you will be subjected to more severe penalties together with battery leading to severe bodily injury. This crime is a wobbler and could be charged either as a felony or a misdemeanor. If you are charged with a felony, the offense in question can result in two, three or four year's sentence.

Assault with a dangerous weapon (ADW)

Assault with a dangerous weapon (PC 245(a)(1)) is a wobbler in California. It is punishable with up to a one-year county jail sentence if it is a misdemeanor whereas a felony carries a two, three or four years sentence.

Disturbing peace

Under California Penal Code 415 PC disturbing the peace laws, it is illegal to fight another person in public, use offensive words towards somebody else in public, or make irrational noise that disturbs others.

Violating California Penal Code 415 PC is a moderate misdemeanor and it carries up to ninety days (3 months) sentence in jail. Besides, it can be an infraction in some cases.

If charged with assault but the evidence presented is not strong enough, the judge may choose to reduce your charges to disturbing peace. This is a good outcome for any defendant since the punishments for PC 415 are less compared to those of assault.

Assault on public officers

PC 217.1 (a) can be defined as a crime committed against public officers either to prevent them to perform their duties or in retaliation. The public officers could be judges, prosecutors, and public defenders.

Violating PC 217.1 (a) is a wobbler. The potential misdemeanor carries a one-year jail sentence while a felony is punishable by 16 months, 2 (two) years or 3(three) years sentence.

PC 244 assault with caustic chemicals

PC 244 assault using corrosive chemicals is placing or throwing a corrosive chemical on the victim's body with an intention to disfigure or injure them.

It is a felony. It is punishable by two, three or four year's sentence in state prison.

Throwing a substance at a car

Vehicle Code 23110 VC violation happens when you throw any substance or object at a car which is on road. In situations where evidence proves it, the judge may decide to try you under Vehicle Code 23110 VC law instead of the assault law. Different from assault, throwing the object at the vehicle doesn't need that the accused to have the ability to use force/violence to the plaintiff.

Generally, vehicle code 23110 VC is charged as a misdemeanor. Nonetheless, it can be a felony as long as the substance that was thrown had the ability to cause severe injury as well as the accused planned to inflict severe bodily injury.

Additional Consequences for Assault

A victim of assault can sue the offender for any damages caused such as lost wages or medical bills. You don't have to be convicted of or charged with the crime. Actually, even a person proven innocent can be sued as well as lose the lawsuit.

Civil assault accusations don't require to be proved beyond any reasonable doubt; the norm in trial is a preponderance of the evidence. That means the court believes the accused assaulted the victim.

How to Find Legal Representation Near Me

If you feel that everyone is against you and unsure of what to do next because you are facing assault charges, the Los Angeles Criminal Attorney is waiting to hear your side of the story. We have the mandate to respect the constitutional rights of every person for proper legal representation, and we are ready to help you out. Call our Los Angeles Criminal Defense Attorney at 424-333-0943 today to schedule a case evaluation with one of our attorneys.