ASSAULT pursuant to California Penal Code section 240, otherwise known as a “simple assault” is:  “an unlawful attempt, coupled with the present ability, to commit a violent injury on someone else.”

It is not necessary to make any physical contact with another person, or cause any injury, to be charged and convicted with “simple assault.”  

In order to be convicted of the crime of assault under California Penal Code sections 240 and 241, the prosecution must prove beyond a reasonable doubt each of the following elements against you:

  1. You did something that was likely to result in the use of force against someone else.

In other words, did your act or could your act potentially result in physical violence against another?

  1. You did so willfully

It must be proven that you “willfully” acted in committing the alleged assault. “Willfully” means that you intended the specific act; not that you necessarily intended to actually injure another person or that you intended to break the law.

  1. That you were aware of facts that would lead a reasonable person to believe that this act would directly and probably result in force being applied to the other person.

All that is required to meet this element is that the prosecutor shows that a reasonable person would realize that your act would lead to the assault.

  1. When you acted, you had the ability to apply force to the other person, meaning you must have actually been able to carry out the violent act against another person when the alleged assault occurred.

While it is not necessary to actually have succeeded in applying force to the other person, all being required is that you took some action that would probably have resulted in force being applied to them. However, “application of force” is any harmful or offensive touching, even the slightest touching is sufficient if done in a rude or offensive manner and the touching involved does not have to cause any injury. 

Difference between Assault and Battery under the Penal Code

“Assault and Battery” are often phrased together but an “assault” can be charged separately, an assault can be committed without a “battery” because it is the act of threatening to cause physical harm with a present ability to cause said harm.   A key element of assault crimes is that the accused individual must have had the ability to actually carry out the act, rather than empty threats that couldn't be acted upon.

“Assault” is basically comprised of the actions leading to a battery.

For example, in the midst of arguing with someone you raise the baseball bat over your head positioned to make him/her think you are about to strike them would constitute an assault.  The crime of “assault” is the threat to cause physical harm

Another instance of “assault” is taking a swing at someone during a heated argument as long as the intended victim was within striking distance. Though words alone are not assault, threatening to hit someone with an object is considered assault when accompanied by an action that shows intent to carry out the threat.

On the other hand, a “battery” requires “touching” and the actual causing of an injury to another.  The Difference between an “assault” and a “battery” is no physical contact is necessary to be convicted of an “assault.” A “battery” is essentially a completed assault.  To continue the action of striking with the baseball bat constitutes a “battery.”

Defenses Used in Assault Cases

  • Self-defense and Defense of Others is a common defense to “assault” allegations.  Your actions would be legally justified if you act in a way to protect yourself or in defense of an another party facing a threat if you reasonably believe you are facing an unlawful, unwanted touching, serious injury or death. The law allows only the use force reasonably necessary to prevent injury to yourself or a third person.
  • Actions that you were not the Aggressor of the “assault”
  • False allegations were made by the other party especially in a situation where there are no witnesses to the alleged act and no injury has been inflicted.
  • There was no Intent to Commit the specific act, the alleged assault
  • There is No Present Ability to Commit the Assault

Related “assault” Charges

When accused of “assault” there are other assault related charges that may be brought in addition to, or in place of, initial assault charges which include:

Penal Code 242 - Battery which requires any willful and unlawful use of force or violence upon the person of another.

Penal Code 241 – An “assault” committed against the person of a peace officer, firefighter, emergency medical technician, mobile intensive care paramedic, lifeguard, process server, traffic officer, code enforcement officer, animal control officer, or search and rescue member engaged in the performance of his or her duties.

Penal Code 245(a)(1) - Assault with a deadly weapon or by means of force likely to cause great bodily injury

Penal Code 244 PC  - assault with caustic chemicals.

Penal Code 415 – Disturbing the peace which includes fighting someone in public, making unreasonable noise to disturb others or “fighting words” towards another person.

Penal Code 217.1 (a) – “Assault” on a public official

Penal Code 243(e)(1) - Spousal battery charges if the victim is a spouse.

Vehicle Code 23110 - Throwing objects at a motor vehicle occurs when someone throws any object or substance at a motor vehicle that is on a public street.

Penalties and Consequences of an “Assault” conviction

While “assault” is charged as a misdemeanor offense, it is a violent crime that carries a maximum of 6 months in county jail, community service, a $1000.00 fine and three years of probation. 

Keep in mind that the use of a gun or deadly weapon, resulting serious injury or any of the other various assault type charges as previously mentioned can aggravate a “simple assault” to a more serious offense with a sentence of prison rather than jail and a potential strike offense.

Other Potential Consequences

Mandatory counseling attendance.

Financial restitution/compensation to the victim in addition to fines and fees required by the Court.

A length of time on Probation or Parole.

A conviction of a violent crime on your record resulting in loss of professional license, driver’s license and future job opportunities,

A “strike” on your record pursuant to the 3 Strikes law which will increase future sentences if convicted

It is important to get an experienced, knowledgeable Los Angeles based criminal defense attorney like Michele Ferroni on board as soon as you learn that you have been arrested for “Assault.”  Building your defense from the initial stages of your case is essential.  There may be witnesses that can attest that you acted in Self–Defense or the Defense of others, that you were not the Aggressor in the situation or that you did not have the ability to inflict force or violence on the other person.  If so, locating witnesses and gathering statements as close to the time of the offense will aid significantly in the defense of your case and better prepare you by the time your case gets filed in court.  Michele will consult with you personally on your case from beginning to end and guide you to defend or mitigate your case to an outcome most favorable to you. 

Take action now by calling Attorney Michele Ferroni,  818. 203.8300 to represent you and  dramatically improve your chances of a successful outcome in court.


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